New Vision (Kampala)

11 February 2013

Uganda: Judge, Professor Clash Over Abortion

Photo: Newvision
Uganda spends an estimated U.S. $14 million on unsafe abortions every year, according to research. (file photo).

High Court Judge, Justice Alphonse Owiny-Dollo clashed with Makerere University associate Professor, Dr. Sylvia Tamale over whether to base court decisions on the guidelines of the health ministry on the issue of abortion.

Justice Owiny-Dollo was responding to Tamale's remarks of need to save lives of many women who die due to complications related to unsafe abortion.

Dr. Tamale is a lecturer at the School of Law, Makerere University.

She argued that judicial officers should apply Ministry of Health guidelines to make court rulings in favour of women who want to abort due to rape, defilement and health reasons.

"The judicial officers should use the provisions raised for abortion to occur as outlined in the Ministry of Health guidelines to rule in favour of the vulnerable," she said.

Abortion is illegal in Uganda, but Tamale made pointed references to three countries in Africa which have legalized the practice.

Tunisia made abortion legal in 1973, Cape Verde in 1983 and South Africa much later in 1996.

She also referred to the Maputo Protocol which demands African states to legalise abortion.

The Maputo Protocol states: "State parties shall take all appropriate measures to protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest and where the continued pregnancy endangers the mental and physical health of the mother."

But judge Owinyi-Dollo had his own views. "I will never rely on Ministry of Health guidelines to make judgment on abortion related cases," he said.

He pointed out that guidelines are not laws, which prompted Tamale to hit back: "But what have you [judges] done to use guidelines innovatively to bring law authorizing abortion?" she asked.

The two were speaking during the opening of judicial meeting on sexual and reproductive rights in Uganda at Protea Hotel in Kampala at the close of last week.

The judicial meeting was organised by FIDA-Uganda in partnership with Women's Link Worldwide aimed at judicial role in protection of women's rights.

Tamale argued that the Judiciary is an agent of change and therefore should take advantage of the guidelines and use it as strategy to ask government to institute a law that allows abortion.

In response to that recommendation, Judge Owinyi- Dollo said that the health ministry ought to use its guidelines to formulate policy which is taken to Cabinet and the latter then tables it before Parliament from where the MPs pass it into law.

The Ministry of Health guidelines and service standards for sexual and reproductive health rights published in 2006 provides for broader exceptional circumstances under which abortion is allowed.

These include; severe maternal illnesses threatening the health of a pregnant woman - like severe heart disease, severe foetal abnormalities not compatible with extra-uterine life - rape, incest and defilement.

The High Court Judge of South Africa Justice Yvonne Mokgoro advised judicial officers not to put their personal feelings and emotions concerning abortion, but to instead apply the law.

Margaret Mutonyi, the deputy registrar of Family court division stressed the need to strike the balance between allowing abortion totally and only under certain circumstances as stated in the guidelines.

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