By KT Reporter
The Constitutional Court has upheld Uganda’s abortion-criminalisation laws, ruling in a 3–2 majority that Penal Code provisions creating offences of procuring an abortion, attempting one, and supplying abortion-related drugs do not violate the Constitution.
The decision arose from two consolidated petitions filed by the Human Rights Awareness and Promotion Forum (HRAPF), the Centre for Health, Human Rights and Development (CEHURD), Prof. Ben Twinomugisha, and Dr. Rose Nakayi.
The petitioners sought to nullify the abortion-related offences under sections 130, 131 and 132 of the revised Penal Code, arguing that they infringe women’s rights to life, equality, dignity, health, and freedom from cruel, inhuman or degrading treatment. They also argued that the State’s failure to enact a law regulating termination of pregnancy, as envisaged under Article 22(2), had created a legal vacuum that pushes women toward unsafe abortions and deters health workers from providing essential care.
Their case relied on evidence from researchers, lawyers, and medical personnel describing the burdens faced by women charged with abortion-related offences, the prevalence of unsafe abortions, and the fear among health workers caused by the threat of prosecution. They argued that the absence of a statutory framework undermines reproductive-health policy efforts and exposes women—especially poor and rural women—to preventable injury and death.
The Attorney General opposed the petitions, insisting that the Constitution protects foetal life and that the Penal Code provisions are consistent with Article 22(1), which restricts termination except as authorised by law. The State argued that Uganda already has a legal regime permitting life-saving or health-preserving abortions by qualified physicians and that criminalisation serves the public interest by deterring unlawful procedures. It further contended that there was no constitutional omission because existing policy frameworks and statutory allowances sufficiently operationalise Article 22(2).
Writing for the majority, Justice Dr. Asa Mugenyi held that the petitioners had not proved that the Penal Code sections violate any constitutional rights. Justices Moses Kawumi Kazibwe and Hellen Obura agreed, each providing separate reasoning but concurring that abortion should remain an offence in Uganda.
Justice Mugenyi stated that abortion is not a constitutional right in Uganda and cannot be inferred from provisions on health, liberty, privacy or equality. He emphasised that where the Constitution is silent, courts should not create rights that Parliament has not expressly enacted, adding that crafting abortion policy involves ethical, medical and financial considerations best handled by the Legislature.
On the claim of cruel, inhuman or degrading treatment, the majority relied on dictionary definitions adopted in earlier Supreme Court precedent and found no evidence that the criminal provisions impose such treatment on women. Justice Mugenyi said balancing women’s rights with the State’s interest in protecting foetal life is a legislative responsibility, not a matter for constitutional interpretation. He added that the petitioners were effectively attempting to secure abortion-law reform through the courts instead of Parliament.
The Court therefore ruled that sections 130, 131 and 132 of the Penal Code are constitutionally valid and do not infringe Articles 8A, 21, 22, 24, 33 or 44, nor the National Objectives on health policy. It also found no unconstitutional failure by the State to enact a law under Article 22(2). Each party was ordered to bear its own costs.
Two justices, Eva Luswata and Frederick Egonda-Ntende, dissented. Justice Luswata, drawing on constitutional history and the evidence before Court, found that the abortion offences unjustifiably curtailed women’s rights and that the State’s decades-long failure to pass a regulatory law under Article 22(2) was unconstitutional. The majority declined that view.
As a result, the Court has left Uganda’s existing abortion laws unchanged and placed responsibility for any future reform squarely with Parliament.
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