PETITION ON ABORTION AND CHILD DEFILEMENT

  1. EXEMPTION FROM CRIMINAL LIABILITY FOR ABORTION (Article 140)

There shall be no criminal liability if abortion is performed due to one of the following reasons: 1º. If the pregnant person is a minor;

2º. If the victim became pregnant as a result of rape;

3º. If the victim became pregnant after being subjected to a forced marriage;

4º. If the victim becomes pregnant due to incest up to the second degree;

5º. If the pregnancy puts at risk the health of the pregnant woman or of the fetus.

Abortion is carried out by a recognized doctor.

Requirement to be fulfilled before a doctor carries out an abortion are determined by an order of the Minister in charge of health.

If after abortion, it is evident that the person applied for it with no legal basis, she shall be punished as the person who performed a self-induced abortion.

Comments:

We welcome the removal of some of the court order as it is a barrier in terms of access to safe and legal since this requirement makes impossible for women to get access to safe and legal abortion. The current penal code imposes on the woman to prove before the court that her pregnancy was a result of rape, incest or forced marriage.

In March 2017, the Committee on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) requested the Government of Rwanda to remove such barrier when assessing the situation of women rights in Rwanda.[1] The removal of the Court order is a step forward in implementing the CEDAW Committee recommendation.

However, the proposed provision in the draft law determining offences and penalties in general that allows only medical doctors to perform abortion. This limitation on medical doctor (physician) creates a barrier to women’s or girls access to legal and safe abortion.

Firstly ,this requirement does not take into consideration the limited number of medical doctors as the statistics from the Ministry of Health indicate that Rwanda has 1 doctor per 10,055 inhabitants whereas 1 nurse per 1,142 inhabitants and 1 midwife per 4,037.[2] Allowing only medical doctors to perform abortion prevents many women from accessing safe abortion as this limited number of doctors performs other duties at health facilities and moreover they are not found in health centres.

Secondly, the medical doctor requirement is against international standards and the current national standards.

With regard to international standards, we would like to highlight standards recommended by the World Health Organization (WHO) and the African Commission on Human and Peoples’ Rights.

The WHO recognised negative impact on women access to safe abortion resulting from the limitation on medical doctor requirement in terms of access to safe abortion combined with a limited number of medical doctors in many countries and thus concluded that abortion care could be safely provided by properly trained health-care providers, including non-physician providers who are trained in basic clinical procedures related to reproductive health.[3] From the African perspective, the African Commission on Human and Peoples’ Rights has recommended that in many African countries where there are not enough trained physicians available, mid-level providers such as midwives and other health workers should be trained to provide safe abortion care.[4]  These two recommendations from the WHO and the African Commission on Human and Peoples’ Rights are valid in Rwanda based on the limited number of medical doctors.

The WHO has also developed a guideline with evidence-based recommendations on the safety, effectiveness, feasibility and acceptability of involving a range of health workers in the delivery of recommended and effective interventions for providing safe abortion and post-abortion care, including post-abortion contraception.[5]

With regard to national standards, progressive and realistic practices on the ground from the Ministry of Health indicate Rwanda’s progressive alignment to International standards.

The Health Sector Annual Report June 2013 – July 2014 from the Ministry of Health clearly acknowledges the importance of a comprehensive Post-abortion care approach in saving women lives experiencing post abortion complications and more importantly emphasizes why the Ministry developed various documents including the National protocol, reference manual and other training materials and the subsequent the training of healthcare providers on comprehensive post abortion care using medical and surgical methods.[6]

We note with appreciation, the positive step taken by the Ministry of Health in developing a training guide on post abortion designed for skilled midwives, nurses and physicians.  Two of the objectives of the Trainer’s guide are to provide the participants to the training (physicians and skilled midwives and nurses) with the knowledge and skills needed for performing uterine evacuation such as vacuum aspiration or the method appropriate to the setting as well as preventing and managing complications related to the procedure and provide the participant with the knowledge and skills needed to organize and manage quality post abortion care services.[7] This is a clear indication by the Government of Rwanda to align to international standards.

In addition, the Ministry of Health indicated in its annual report that during the financial year 2013-2014, health providers from Gatsibo, Kayonza, Rutsiro, Kamonyi, Rwamagana, Nyamagabe, and Gakenke districts were trained on post abortion care. Each district was represented by 2 healthcare providers per health center and 3 healthcare providers per District hospital.[8]

Besides training of mid-level health care professionals ( nurses and midwives ) ,we would like to highlight progress made by the Ministry of Health in terms of capacity of the trained mid-level healthcare professionals in providing post abortion care.

Indeed. A joint pilot programme by the Ministry of Health and Ventures Strategies Innovations (VSI) conducted in four districts demonstrated that provision of misoprostol for use in Post Abortion Care was feasible at hospitals and health centers in Rwanda. A total of 1,024 women presented with incomplete abortion between March 2012 and October 2012 at the public health facilities in the four participating districts. Overall, misoprostol was used to treat 83% of all women seeking post-abortion care. As soon as misoprostol was introduced, providers began using it to treat the majority of incomplete abortion and miscarriage cases (90% in the first month), and it remained the predominant treatment method throughout the pilot programme.[9]

By the end of the pilot programme, in October 2012, health centers were treating 91% of Post Abortion Care cases and referring only 9% to hospitals. Nurses at health centers were able to successfully provide PAC services, and treated 100% of PAC cases at the health center level.[10]

The implementation of the pilot program showed that health centers were able to provide Post Abortion Care services for the first time, making these services more accessible to women bearing in mind that health centres are run by mid-level health providers and not medical doctors (physicians).

Healthcare providers from Gatsibo, Kayonza, Rutsiro, Kamonyi, Rwamagana, Nyamagabe, and Gakenke districts were trained on Post Abortion Care. These trainings increased the number of district implementing comprehensive Post Abortion Care from 4 to 11 districts.[11] We sincerely hope that the Ministry of Health shall expand the training to the remaining districts and therefore health providers across all the 30 districts will be able to implement a comprehensive post abortion care and thus improve women access to safe abortion services.

We strongly believe that the medical doctor requirement as suggested in the Draft Law determining offences and penalties in general will lead to waste of investment in terms of human resources made by the Ministry of Health with the training of mid-level health care providers (midwives and nurses) in the implementation of Post Care Abortion as these trained mid-level health care will be prevented to make use of their acquired skills in addressing the shortage number of medical doctors in providing safe abortion to eligible women.

Finally, the Ministerial Order Nº20/39 of 29/01/2016 determining the medical services provides that at each level of health facilities that provides that manual vacuum aspiration can be performed at Health Centre in case of incomplete abortion. The Ministerial Order also states that Manual Vacuum Aspiration can be done at Health Centres if diagnosis can be made by a midwife and echography is available.

The above ministerial order clearly indicates the recognition by the Ministry of Health of the capabilities of trained midwives in performing safe abortion to eligible women.

Recommendations:

Based on both international and national standards, we propose that article 140 of the Draft law determining offences and penalties in general be amended and reads as follows:

“Abortion is carried out by skilled healthcare providers recognised by the Ministry of Health can provide abortion.

Requirement to be fulfilled before a skilled healthcare provider carries out an abortion are determined by an order of the Minister in charge of health.

We also recommend the draft law determining offences and penalties in general to rephrase the medical ground under which abortion can be carried out with the view of aligning it with the wording of Article 14 (2) (c) of the Maputo Protocol which reads as “…….where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the fetus”.

We recommend the draft law determining offences and penalties in general to replace the word “victim” with “woman”.

  1. HOW A CHILD APPLIES FOR AUTHORIZATION TO ABORT (Article 141)

The proposed draft law determining offences and penalties in general reads: “If the person applying for authorization to abort is a child, she shall be accompanied by a parent or any other person with parental authority over her with a birth certificate, request the authorized doctor for authorization to abort.”

Comments:

We welcome the inclusion of pregnancy resulting from defilement among the ground for legal abortion as the current penal code does not do so.

However, it is not clear if the procedure requires the notification of the parent /legal guardian or the consent of the parent/legal guardian.

In interpreting the normative content of Article 14(2) of Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (hereinafter the Maputo Protocol) the African Commission on Human and Peoples ‘Rights made a general comment in which it called upon State parties to take all appropriate measures to remove the obstacles such as, age, faced by women who want access to family planning / contraception and safe abortion services, especially young women, teenage girls.[12]

In addition, it is not clear what needs to be done in case there is a disagreement between the 2 parents on abortion.

The Committee on the Rights of the Child has especially emphasized the right of the child, in accordance with evolving capacities, to confidential counseling and to access to information without parental or guardian consent.to certain medical treatments and interventions without the permission of a parent, caregiver, or guardian, such as HIV testing and sexual and reproductive health services, including education and guidance on sexual health, contraception and safe abortion.[13]

We are also concerned with the possibility of street children or children who head households who might be impregnated and being denied access to safe abortion as a result of not having a legal guardian as required by the proposed provision in the draft Law determining offences and penalties in  general . This could lead to discrimination and violation to the right to health.[14]

Recommendations:

We recommend the removal of the requirement for children aged between 16 and 18 years of age to be accompanied by their parent(s) or legal guardian. The selection of the age of 16 has been influenced by the Article 4 of Law n° 13/2009 of 27/05/2009 regulating labour in Rwanda the minimum age for employment at 16 years of age. It is our view that a child aged between 16 and 18 years of age having the right to seek employment should also be allowed to seek abortion as a victim of defilement without necessarily obtaining a prior consent of her parent or legal guardian and moreover her best interest shall be paramount and thus shall be safeguarded.

The removal of the above requirement shall also enable children without parents or legal guardians to access safe abortion as the requirement of parental consent excludes them from accessing such service.

  1. ADVERTISING MEANS OF ABORTION (Article 152 )

Any person who, by any means, advertises drugs, materials and any other substances believed to induce abortion, commits an offence. When convicted, he/she is liable to a term of imprisonment of not less than one (1) year but not exceeding two (2) years  and a fine of not less than two million (2,000,000) but note exceeding three million (3,000,000) Rwandan francs or one of these penalties.

Comments:

The ban on advertising means of abortion is broadly framed. It becomes very difficult for pharmacists or manufacturers to introduce their products to health professionals. The total ban on advertising means of abortion is in conflict with article 3 (2) of the Ministerial Order Nº 20/37 of 30/10/2015 determining the code of ethics for pharmacy profession that reads: “A pharmacy professional must purchase medicines or any other health commodities that comply with high quality to guarantee safety and efficacy of products supplied to clients.”

Advertisement is very important as far as the purchase of quality medicines or any other health commodity is concerned.

Recommendations:

We recommend the definition and scope of definition of “advertisement”

We also recommend the inclusion of another paragraph that shall provide exemption for criminal liability as follows: “There is no criminal liability for any authorized medicine manufacturers or agents who advertises means of abortion to recognised healthcare professionals.”

  1. INFANTICIDE (Article 124 )

Any woman who kills her own child of not more than twelve (12) months but who, at the time of the killing, experienced post natal depression as a result of effects of giving birth or labor pains of a mother commits infanticide.

Any person convicted of infanticide is liable to a term of imprisonment of not less than three (3) years but not exceeding five (5) years.

Comments:

We are concerned with the criminalization of women might be prosecuted for killing their child as result of post natal depression as a result of effects of giving birth or labor pain.

Targeting a woman specifically is a clear discrimination based on gender. Discrimination is prohibited by the Constitution of 2003 as revised in 2015[15] as well as various international human rights instruments ratified by the Government of Rwanda such as the International Covenant on Civil and Political Rights[16] , the International Covenant on Economic , Social and Cultural Rights[17] , the Convention on the Elimination of All Forms of Discrimination Against Women[18] , the African Charter on Human and Peoples ‘Rights[19] and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol)[20].

We also believe that a woman who has allegedly committed an infanticide as a result of depression needs both social and psychological support including treatment and counseling instead of being prosecuted and subsequently imprisoned. Indeed, the World Health Organisation has described depression as common mental disorder, characterized by persistent sadness and a loss of interest in activities that you normally enjoy, accompanied by an inability to carry out daily activities, for at least two weeks.[21]

We also believe that this provision contradicts article 88 (2) of the draft Law determining offences and penalties in general that excluded criminal liability if the accused was insane during the commission of the offence.

Recommendation:

We recommend the removal of the paragraph that criminalizes woman who kills her own child of not more than twelve (12) months but who, at the time of the killing, experienced post natal depression as a result of effects of giving birth or labor pains of a mother commits infanticide as the criminalization violates the right of women to be protected from any discrimination and also the imprisonment can only lead to weaken the mental health of the woman who has already faced depression and thus violates her right to  health.[22]

 

  1. CHILD DEFILEMENT (Article 146)

Any person who commits one of the sex related acts listed below on a child, with or without the child’s consent, commits an offence of child defilement:

1ºinsertion of a sexual organ into the sexual organ, anus or mouth of the child

2ºinsertion of any organ of the human body into a sexual organ or anus of a child;

3ºperforming any other act of sexual nature on the body of a child for the purpose of body pleasure.

When convicted by a court, he/she is liable to life imprisonment that cannot be mitigated for any circumstances if the defilement is committed against a child under ten (10) years. The penalty becomes life imprisonment if the victim is a child aged above ten (10) years but less than fourteen (14) years. The penalty becomes a term of imprisonment of not less than fifteen (15) years but not exceeding twenty (20) years if the victim is a child aged fourteen (14) but not exceeding sixteen (16) years. If the defilement is committed against a child above sixteen (16), the penalty becomes a term of imprisonment not less than ten (10) years and less than fifteen (15) years.

If child defilement is committed between children with age difference of two (2) years without violence or threats no penalty is pronounced.

Comments:

We are of the view that the interpretation of the last paragraph of the provision on child defilement criminalizes sexual intercourse between children of the same age as the provision sets the difference between two children at 2 years and thus remains silent in case the two children are of the same of age.

Based on the restrictive interpretation of the draft law determining offences and penalties in general, we are also concerned with the potential criminalization of children with age difference less than 2 years as the exemption from criminal liability is strictly applicable to children with 2 years difference.

Recommendations:

We recommend the amendment and propose the following reading:

There is no offence if sex related acts are committed between children of either of the same age or whose age difference is not exceeding 2 years without violence or threats”

[1] The CEDAW committee made the recommendation on 9 March 2017. The Concluding Observations are referred to as CEDAW/C/RWA/CO/7-9.

[2] Ministry of Health Health Sector Annual Report July 2014-June 2015. Page 25

[3] World Health Organization Safe abortion: technical and policy guidance for health systems (2012)

[4] African Commission on Human and Peoples’ Rights General Comment No. 2 on Article 14.1 (a), (b), (c) and (f) and Article 14. 2 (a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.

[5] World Health Organization Health worker roles in providing safe abortion care and post-abortion contraception (2015)

[6] Ministry of Health Health Sector Annual Report June 2013-2014

[7] Ministry of Health Post Abortion Care Curriculum: Trainer’s guide (2012). Page 6

[8] Ministry of Health , Idem

[9] VSI and MOH Expanding Access to Postabortion Care Services in Rwanda : Final Report  (2013) Available at <<http://bixby.berkeley.edu/wp-content/uploads/2015/03/VSI_Rwanda-MOH-PAC-Report-2013-02-20F.pdf >>.Accessed on 07 October 2017

[10] Idem

[11] Ministry of Health Health Sector Annual Report June 2013-2014

[12] African Commission on Human and Peoples’ Rights General Comment No. 2 on Article 14.1 (a), (b), (c) and (f) and Article 14. 2 (a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.

[13] United Nations Committee on the Rights of the Child. General Comment No 15 on the Right to Health .Available at << http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fGC%2f15&Lang=en). Accessed on 09 October 2017.

[14] The right to health is guaranteed under article 21of the Constitution of Rwanda of 2003 as amended in 2015 ;Article  12 of the International Covenant on Economic, Social and Cultural Rights ; Article12 of the Convention on the Elimination of All Forms of Discrimination Against Women ; Article 24 of the Convention on the Rights of the Child; Article  16 of the African Charter on Human and Peoples’ Rights; Article 14 of the African Charter on the Rights and Welfare of the Child and Article 14 of the Maputo Protocol and Article 41 of the Law No 54 /2011 of 14/12/2011 relating to the rights and the protection of the child.

[15] Article 16 of the Constitution of Rwanda of 2003 as revised in 2015

[16] Article 2 (1) of the International Covenant on Civil and Political Rights

[17] Article 2(2) of the International Covenant on Economic , Social and Cultural Rights

[18] Article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women

[19] Article 2 of the African Charter on Human and Peoples’ Rights

[20] Article 2 of the Maputo Protocol

[21] World Health Organization Depression:Let’s talk .Available at << http://www.who.int/mental_health/management/depression/en/>> .Accessed on 10 November 2017

[22] The right to health is guaranteed under article 21of the Constitution of Rwanda of 2003 as amended in 2015; Article 12 of the International Covenant on Economic, Social and Cultural Rights; Article12 of the Convention on the Elimination of All Forms of Discrimination Against Women; Article 16 of the African Charter on Human and Peoples’ Rights; d Article 14 of the Maputo Protocol.

This petition was submitted by Civil Society organisations to the Rwandan Parliament, as part of the process of reviewing the Penal Code, to contribute to the discussions

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