The Impact of Colonial Histories on Abortion Laws in FWACA Countries

When we talk about French-speaking West and Central Africa (FWACA), we are referring to 14 countries: Republic of Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo-Brazzaville, Côte d’Ivoire, Gabon, Guinea, Mali, Mauritania, Niger, Senegal, and Togo. The impact of colonial histories on abortion laws in FWACA countries can be seen in the abortion laws of these countries to date. The laws violate women’s rights and are in keeping with the status of women in France as seen in the times of the Napoleonic Code, which gave women no consideration or equal rights.

Between 1895 and 1958,  the French colonized these countries in West and Central Africa, under administrative grouping. When the French colonized Africa, they also brought their laws along with them. One such law is the French Penal Code of 1810, in which abortion was a felony, punishable by up to 20 years imprisonment (previously, it was punishable by death).

Influence of Colonial Histories on Legal and Societal Norms Concerning Abortion Rights in FWACA Countries

Because colonisation ended before the French decriminalized abortion, the old laws of the 1800s remained. This is reflected in the similarities of the laws in countries such as Senegal,  Benin, Burkina Faso, Cameroon, and Gabon.

In Senegal, Article 305 of the Criminal Code prohibits abortion. Any woman who has an abortion or tries to get an abortion may be sentenced to six months to two years in jail, in addition to paying a fine. Article 305 also punishes any person who assists in an abortion with a jail term of up to 10 years, plus a fine. This specifically includes doctors, pharmacists, herbalists, and sellers of surgical instruments, and requires that the professional licences of guilty individuals be suspended. This has led to a situation where doctors refuse to provide care and treatment for people who have attempted to abort in nonmedical settings for fear of professional reprisals. It is an offence to persuade a woman to get an abortion, even if the abortion does not happen. This implicates those who speak in public, post signs and distribute material encouraging the safe termination of pregnancies.

In Benin, before abortion was decriminalized, the law of July 31, 1920 prohibited any incitement to abortion, and contraceptive propaganda continued to be in effect in Benin. Any person who sought or practised illegal abortions (including health-care service providers), was punished by imprisonment and a fine at the judge’s discretion.

Abortion was criminalized in Article 317 of the Penal Code with significant penalties that could be increased in the case of aggravating circumstances. Abortion came under the jurisdiction of the Assizes Court. The Penal Code provided that any act intended to interrupt the harmonious development of the fetus was considered a crime of homicide.

Benin’s Parliament passed a new legal amendment to the Sexual and Reproductive Health (SRH) 2003 Law on Wednesday, 20 October, 2021.

In the new law, abortion in Benin is legally permitted “…upon the request of the pregnant woman; voluntary termination of pregnancy can be allowed when the pregnancy is likely to aggravate or cause a situation of material, educational, professional or moral distress incompatible with the interest of the woman and/or the unborn child…” in the first 12 weeks of pregnancy.

In Burkina Faso, abortion is only legal in the following circumstances:

if the abortion will save the woman’s life;
if the pregnancy gravely endangers the woman’s physical or mental health;
if the child will potentially be born with an incurable disease; and
in pregnancy cases resulting from rape or incest, as long as a state prosecutor proves it.
Even these abortions are limited to the first 10 weeks of pregnancy.

In Burkina Faso, any abortion performed under other conditions subjects the person who performs the procedure to one to five years’ imprisonment and imposition of a fine.

In Cameroon, the legislature has repealed the 1920 French law prohibiting incitement to abortion and contraceptive propaganda.

However, Chapter 4, Article 78 of Act 80/10 of July 14, 1980, reinstates Articles 1 and 2 of the 1920 Law. It prohibits the promotion of abortion, either through the sale or distribution of abortifacient materials or through advertising.

The Penal Code permits abortion in a limited number of cases. Abortion is considered to be infanticide, and the Penal Code punishes women who have an abortion, as well as persons who assist her. Nevertheless, abortions are allowed to save the health of the pregnant woman and in pregnancies resulting from rape.

The act regulating the pharmaceutical profession calls for controlling of the display and distribution of all products capable of inducing or promoting abortion. (This act also prohibits birth control advertising.)

In Gabon, according to the Penal Code, Article 244, whoever, by food, beverages, medicines, manoeuvres, violence or by any other means, procures or attempts to procure the abortion of a pregnant woman or presumed-pregnant woman, whether she has consented or not, will be punished by imprisonment of one to five years and a fine of 24,000 to 500,000 francs (approximately $40 to $900).

The imprisonment will be five to ten years and the fine will be between 50,000 to 1,000,000 francs if it is established that the guilty party habitually engaged in the acts referred to above. The same penalties will apply to doctors, health officers, midwives, surgeons, dentists, and pharmacists as well as medical students, pharmacy students or employees, herbalists, bandagists, surgical instrument dealers, nurses, and masseurs and masseuses who have indicated, favored or practised the means of procuring an abortion. Suspension, for at least five years, or absolute incapacity to exercise their profession may also be pronounced against the guilty parties.

In Article 245, a woman who procures an abortion,  has attempted to obtain one, or who has consented to use the means indicated or administered for this purpose will be punished with imprisonment of six months to two years and a fine of 24,000 to 240,000 francs, or by one of these two penalties only.

All these laws are from the Penal Code of 1810, France. They represent laws of a time when women were seen as secondary citizens and were denied many human rights. Sadly, these archaic laws still rule most of West and Central Africa.

The Role of Colonialism in Shaping Contemporary Abortion Laws in FWACA Countries

In 1920, new abortion laws in France continued to prohibit abortion, and even contraception, to make up for the loss of population caused by World War I and to boost the birth rate of France, which had been considerably lower than other European countries for over a century. It resulted in the introduction of the Law of 27 March, 1923, which stated that whoever induced a miscarriage was punishable with up to five years’ imprisonment as well as a fine, while the person having the abortion could be imprisoned for up to two years. Even after independence, some countries previously colonized by France still had laws that criminalized contraception, such as Gabon.

Most of the independent countries adopted the colonial-era abortion laws, with some making little changes to them to allow contraception. But most of the dangerous, harmful laws that endanger people with uteruses’ lives were kept. For example, in 1969, contraceptives were outlawed in Gabon, and the sale of contraceptives was strictly prohibited. Only in 2000 was the prohibition lifted and an explicit right to contraception decreed under a set of general measures for the health of women and children (Law 2000). However, abortion is yet to be decriminalized in Gabon.

In Cameroon, the legislature has repealed the 1920 French law prohibiting incitement to abortion and contraceptive propaganda. However, Chapter 4, Article 78 of Act 80/10 of July 14, 1980, reinstates Articles 1 and 2 of the 1920 Law. It prohibits the promotion of abortion, either through the sale or distribution of abortifacient materials or through advertising.

Of all the francophone countries colonised by France, the Benin Republic has the most liberal laws. This is due to a new amendment to the law that was made in 2021, in which abortion was decriminalised up until 12 weeks of pregnancy.

Impact of Stigma and Abortion Laws on Women in Francophone Africa

Religion, the law, and the media play a big part in shaping attitudes towards abortion. The portrayal of abortion as unsafe has influenced people’s opinions about the procedure. Most francophone countries have a dominant Catholic or Muslim presence, which influences the beliefs of the whole society. The Catholic church, for example, has been known to preach against abortions, and even contraception, while in Islam, certain sects permit abortion within 120 days after conception.

These beliefs, as well as the lack of information about abortion, cause stigma, which in turn impacts the quality of abortion care that women receive, including post-abortion  care. It is important to destigmatize abortion through the dissemination of accurate information.

A study in Gabon, by Mayi-Tsonga et al. (2012), showed a large delay in the provision of emergency obstetric care to people who died from unsafe abortion complications due to abortion stigma and discrimination. This shows how harmful abortion stigma can be, especially when health professionals are the ones stigmatizing patients.

According to a study by Sorhaindo and Lavelanet (2022), four overarching themes linked to abortion stigma emerged: abortion as a sin and other religious views; regulation of abortion; judgement, labeling and marking; and shame, denial, and secrecy. These four themes adversely affected the quality of abortion care, including post-abortion care (PAC), through poor treatment; obstruction of access; arduous unnecessary requirements; poor infrastructure and lack of resources; punishment and threats; and lack of a designated place for abortion/PAC services.

Another barrier is the widespread belief and misconception that abortion is dangerous, instead of the fact that unsafe abortions, due to harmful laws and policies, are killing people with uteruses.

Before colonialism, abortion in Africa was left in the hands of people with uteruses (as it should be) and not legislated. In many indigenous communities, some people continue to mix herbs for those seeking an abortion. The ingredients for these herbal mixtures have been passed down from generation to generation, far beyond colonial times.

It never bodes well for a society when health-care services are banned, and the figures show the same as unsafe abortion was one of the major causes of maternal mortality in 2020 for Sub-Saharan Africa (WHO, 2023).

Conclusion

In conclusion, abortion debates in Africa are influenced by Western ideas, especially French colonial laws adopted during colonization. These laws, based on conservative Christian and Islamic beliefs, along with disinformation, affect abortion attitudes in francophone countries.

Recently, France enshrined abortion rights in its constitution, a move which was the first of its kind in the world.

Just 81 years ago, on the 30th of July, Marie-Louise Giraud was the last woman to be executed in France for performing abortions. Today, France is the first country in the world to enshrine abortions as a constitutional right.

Shifts such as these can serve as an example for those countries whose laws were given to them by France. The change aims to protect and prevent the eroding of women’s rights, as is occurring in America.

If France can go from executing women for providing abortion care to enshrining it in its constitution, then so can we Africans. All that is needed is for these countries to shun the harmful laws that colonization brought to them, just as those who brought the laws to them (France and Britain) have shunned them, for the betterment of their people.