February 3, 2016 By Moses Massa
The act of killing people is what humanity has wrestled with since the dawn of civilization, and killing has philosophical, moral, religious, legal, political and if possible economic considerations. The intentional act of killing another is abhorred and prohibited by all civilized societies, but every day people are being murdered either legally in state wars, court orders, police powers or illegally through acts of terror. I use this as a silhouette on the current Safe Abortion Bill discussion in Sierra Leone, and argue that the centrality of the Abortion Bill is the right to kill a foetus in a woman, and this has opened fissures in the pro-choice and pro-life camps as it is.
The pro-life camp sees this as murder, whereas the pro-choice sees it as not, but to push the discussion further, murder in criminal law is the intentional act to kill a person or doing grievous bodily harm that would cause the person’s death. The question whether a foetus is a child or when a foetus does become a child surely provokes rattling responses from many who think murder; especially of an unborn child, is morally wrong. Perhaps it is shocking for some to hear that legally an unborn child (foetus) is not a person. A child is said to born alive if after birth it breaths independently of its own lungs alone without any connection with the mother (Lord Brooke in Rance v Mid-Downs Health Authority).
Against this backdrop, in the eyes of the law a woman and doctor cannot be charged with murdering an unborn child where there is consent by the woman and that the birth of the child would endanger her life. Nonetheless, I don’t want you to believe that the law does not criminalize actions leading to the death of some unborn children. In these situations a life sentence is imposed. Legal abortion is the exception. This view may not be accepted but I will later use a UK Appeal Court’s landmark ruling to paddle down these troubling waters that a foetus is not a child until born alive and exists independently of the mother. I do so because as a former British colony, most of Sierra Leone’ laws; past and recent, we inherited from the UK, including many of their case laws which are used by lawyers in our courts.
The resistance against the SAFE ABORTION LAW is not new to this country. Such is the beauty of democracy that it creates the space for equal opportunities and rights, but what I have seen over this discussion is worrying to say the least, because we are governed by laws and institutions authorized to do so. Regardless of our political, religious and ideological views, we must understand, accept the law and allow the structures to work. The cacophony on abortion is a human right and choice issue as well as the SEPARATION OF POWERS AND THE RULE OF LAW, which arguably our Constitution guarantees. In Sierra Leone, the power to make laws is vested in Parliament (s105 1991 Constitution), where MPs reflect and represent the views of citizens and if the Abortion Bill was first passed by Parliament but rejected by the President to give his presidential assent, WHAT DOES THE CONSTITUTION SAY SHOULD HAPPEN IN SUCH AN EVENT? In s106 (7) it states where a bill has been passed by Parliament and is refused by the President, the President has 14 days to return the bill to Parliament explaining reasons for the refusal, and s106 (8) says after this Parliament can still pass the bill to law by a 2/3 majority with the Speaker publishing it in the Gazette.
Coming back to the issue where killing a child was not murder is seen in the 2001 landmark UK Appeal Court ruling in the conjoined twins case. The brief facts: Two female twins were joined together at the lower abdomen (waist bone), each had their own brain, heart, lungs, arms, legs and other vital organs. The stronger one was Jodie and Mary the weaker one, who had an undeveloped brain and completely dependent on Jodie for her survival. According to medical advice, if the twins were left as they were, the weaker one, Mary, would become heavily dependent on Jodie and both would eventually die. If they had to separate them, Mary would die while Jodie would have a chance of living an independent life. The parents, who were Roman Catholics, wanted to leave the twins’ fate to God’s will and refused the operation to go ahead. The doctors then took the matter to the High Court to decide the legality and that it would be in the twins’ best interests to separate them.
The legal issue involved was whether it was permissible to kill one of the twins to save the other or permissible to go against the wishes of the parents. The High Court ruled in favour of the doctors on the basis that the operation would be similar to withdrawal of support (i.e. an omission than a positive act to kill one of them), and that the death of Mary, although unavoidable, was not the main reason of the operation.
The parents took the matter to the Appeal Court where the arguments of the court were as follows. Summarizing the verdict, Justice Ward said: “Though Mary has a right to life, she has little right to be alive. She is alive because and only because — to put it bluntly — she sucks the lifeblood of Jodie and her parasitic living will soon be the cause of Jodie ceasing to live”. Lord Walker put it this way: “The proposed operation would not be unlawful. It would involve the positive act of invasive surgery and Mary’s death would be foreseen as an inevitable consequence of an operation which is intended, and is necessary, to save Jodie’s life. But Mary’s death would not be the purpose”. Conclusively the appeal was dismissed and the operation was permitted to be carried out by the doctors.
In conclusion from the above, it is important to note that life is an angle whose sides are not few and there is no one as blind as the one who refuses to see. Let’s accept the reality that refusing to legalize Abortion; except you are from another planet, would prevent it from happening in Sierra Leone or elsewhere.
*Moses Massa is a Senior Chevening Fellow on Conflict Prevention and Resolution