The far-reaching consequences of repressive abortion laws in Eswatini

By Susan Mkhabela

Sibongile* is a 13-year-old girl who was a Grade 7 learner in the Shiselweni region of Eswatini, one of the poorest areas in the country, when an unwanted pregnancy changed her life. On her way back from school one day, she met a 39-year-old kombi driver who gave her money and proposed that they have a relationship. The young Sibongile went along with the proposal without comprehending the consequences.

Over the course of a few months,  the driver provided the girl with money and free transport to and from school. On one occasion, he invited her to his one-room flat, which led to them having sex. Sibongile suspects that she fell pregnant during this encounter.

The young girl is an orphan whose parents died from HIV-related illnesses. She lives with her  grandmother who is her guardian. When her grandmother discovered that Sibongile was carrying a child, she asked her who was responsible for making her pregnant. This was when Sibongile revealed her involvement with the kombi driver.

The Children’s Protection and Welfare Act in Eswatini views Sibongile’s pregnancy as the result of statutory rape, since she is only 13 years old. The state considers cases to be statutory rape when adults have caused children younger than 18 years of age to have sexual relations with them.

The grandmother reported the incident to the police with the help of teachers from Sibongile’s school. The police took action, investigating the case with the support of social workers. As a result, the perpetrator was sentenced to 15 years in jail.

While the case was in progress, Sibongile’s grandmother visited the regional health centre, the biggest health institution in the Shiselweni region, where she requested an abortion service for her granddaughter. Sibongile did not want to bear a child – she wanted to return to school. However, the medical officer at the centre denied her an abortion on the grounds that the baby was not in any danger.

Sibongile then became so depressed that she developed hypertension at the age of 15, a serious health condition that she lives with to this day.

When the baby was born, Sibongile did not have the financial means to support the girl child as the baby’s father was serving his jail sentence. The cycle of poverty that Sibongile was caught in therefore continued, whereas it could have been broken if Sibongile had had an abortion and returned to school. Because she was denied access to an abortion, Sibongile was unable to realise her dream of completing her education and going to college. She was forced to make a living from selling vegetables on the local market and she can’t afford many of the essentials her child needs. The result of her unfortunate situation is that her baby suffers from malnutrition.

*Not her real name

Under Kingdom of Eswatini Constitution of 2005,[1] it is unlawful to perform an abortion, except under circumstance permitted by s5­ (a) being “on medical or therapeutic grounds including where a doctor certifies that – (i) continued pregnancy will endanger the life or constitute a serious threat to the physical health of the woman; (ii) continued pregnancy will constitute a serious threat to the mental health of the woman; (iii) there is serious risk that the child will suffer from physical or mental defect of such a nature that the child will be irreparably seriously handicapped; (b) where the pregnancy resulted from rape, incest or unlawful sexual intercourse with a mentally retarded female; or (c) on such other grounds as Parliament may prescribe.” Under the selective permissions there is no gestation limit specified, the assumption could therefore be that the medical professionals use their professional discretion.

Though abortion has been permitted in cases of rape, law enforcement fails to reach far. Some survivors of rape, are married away to their perpetrators who use marriage to avoid jail term and the survivor is pushed into marriage to avoid discrimination from members of the public. This arrangement conceals evidence under the guise that marriage and all the fruits that come out of it are purely consensual yet this act protects the perpetrators of rape at the expense of the rape survivor thus leaving the woman with little chance to get out of the unwanted pregnancy.

Amnesty International adds that a lot of rape incidences in Eswatini go unreported as women fear rejection and discrimination. This implies that rape survivor’s chances of seeking medical attention are very slim, risking failure to be treated for Sexually Transmitted Infection, accessing Post Exposure Prophylaxis (PEP) to prevent the transmission of HIV/AIDS to an HIV negative survivor as well seeking abortion services.

Some healthcare practitioners in Eswatini are still not pro-choice. It is evident that this hostility from members of the medical practice who are prejudiced against pro-choice makes it difficult for law reform to survive. In an interview with James hall of Inter-Press Agency,[2] Nurse Abigail Dube, who is practicing nurse in Eswatini is quoted saying “Swazis hate abortion, the taking of little Swazi lives. We are a small, proud nation, and perhaps we are more sensitive to the preciousness of those Swazis we have, particularly in the age of AIDS, which is now taking so many of our people.”

Cultural Context

According to Women in Law Southern Africa men do not believe there can be rape where people have intimate sexual relationship, the deep Swazi culture which has in it patriarchy embedded, renders men understanding that rape cannot occur between married couples. All Africa[3] reports Indigenous Law and Custom of the Kingdom of Eswatini “that traditional law states that rape is committed only if the woman forced is not the man’s wife or lover.” All Africa continues to elaborate that the traditional law runs counter to Sexual Offences and Domestic Violence (SODV) Bill which is stalled in the Swazi Senate because traditionalists object to four clauses about incest, unlawful stalking, abduction and flashing. The conclusion that can be drawn from the above is that women are subjected to marital rape in Eswatini and are unable to access abortion services as permitted by the law. Further, in most contexts the man is considered the head and the leader of the family. This translates to women not having a choice over their bodies and making independent reproductive decisions.

In an interview with James Hall, Titus Mngomezulu, a statistician who is a compiler of Swazi Law and Custom says “When a husband dies, his widow becomes the wife of the man’s brother, who will have children by her. She may still be grieving her husband, and she may not like the brother, but she goes along, because a woman’s function is to bear children so the family will survive.” It is evident from the above that Eswatini culture takes seriously continuation of family and clan above the woman’s right to dignity and bodily autonomy.

Religious Context

There is very little information on religion and its influence on termination of pregnancy in Eswatini, however the United Nations High Commissioner for Refugees (UNHCR) reports[4] that a rather divided debate over abortions in Eswatini. In 2012 the UNHCR quoted Minister of Sports, Culture and Youth Affairs Hlobisile Ndlovu at a health conference saying “terminations could serve as a way of curbing the high birth rate. “The children born from very young people eventually end up being a burden on the government.” Minister Ndlovu’s sentiments were supported by member of parliament Johannes Ndlangamandla told parliament unwanted babies had difficult lives and “abortion should be legalized to curb the population of unwanted babies who end up becoming a burden to government.” He continued to object to terminations on religious grounds was hypocritical, as “it is unchristian to breed unwanted babies and expose them to a life of difficulty they do not deserve.” Other MPs, however, said abortions were “equivalent to murder”. 

Economic Context

Whereas Eswatini has ratified the UN Convention on the Elimination of all Forms of Discrimination against Women in 2004,[5] (CEDAW). The Indigenous law and Customary Law seem to hold more weight over any other statutes that includes the Constitution and CEDAW.   Though the Eswatini Constitution has made progress for women to acquire and own property in their name, acquire bank loans, failure to revoke customary laws that give banks leverage to force women to obtain their husbands consent prior to applying for a loan strengthens economic subordinacy of women to the decisions implemented by their husbands. The customary law of Eswatini however forbids women to register such property in their own names, so there are lots of contradictions between the Constitution, CEDAW and Indigenous Law and Customs of Kingdom of Eswatini which professional institutions seem to follow on registering of land. The relation of economic subordinacy to abortion means women are less likely to discuss reproductive decisions with their husbands as any wishes that are likely to not favour the husband the woman may not be in the position of making conflicting decisions to that of the husband lest it creates tensions within the family and economic security that the woman may have.

Political Context

The Inter-Parliamentary Union records -10 points representation of women in Eswatini Parliament.[6] This means the power of women to increase weight on the voting and influence of Acts of Parliament has taken a knock down in 2018 from previous years where Eswatini used to have a fairer score. Women representation in Eswatini as at 2018 according to Gender Links was seating at a meagre 14% against 86% of men. Even if Eswatini Parliament was to review its abortion laws and receive a backing of some men, the analysis suggests that the cultural push back and the strength of patriarchy in Eswatini will render serious hostility for the review of abortion laws. Women are surely likely to be scared in the same parliament to raise sensitive issues such as termination of pregnancy due to the serious of patriarchy and the strong upholding of the Indigenous Law that is birthed by the ancient traditionalist style of leadership that runs across a significant number of Institutions in Eswatini.

The Impact of the Global Gag Rule (GGR)

The Global Gag Rule assessment[7] carried out by Planned Parenthood Federation in the United States of America reported that Family Life Association of Swaziland (FALS) lost almost $1 million in US Funding. FALS had to retrench 56 staff members as it closes integrated community outreach services. In the midst of the affected is the treatment of sexually transmitted infections, family planning, screening for reproductive cancers, HIV services, maternal and antenatal health services.