Offences Against the Person Act 1861

Offences Against the Person Act 1861

The ‘Treaty of Cessation’ enforcing the annexation of Lagos as a colony of the British Empire was signed on HMS Prometheus on the 6th of August 1861, coinciding with the passing in London of the most significant legislative reference to influence the abortion debate for the next 150 years.1

The Offences Against the Person Act of 1861,2 clarified in certain jurisdictions by the later provisions of the 1967 Abortion Act,3 rendered the ‘unlawful procurement’ of abortion a criminal offence in the United Kingdom and constitutes till this day, the de facto (and often de jure) position of the law in the vast majority of Commonwealth African states.

With the exception of Mauritius and a handful of countries situated in the southern region of the continent, abortion law in Commonwealth Africa is derived almost exclusively from the provisions of the 1861 Act. Variations have been adopted through interpretation of case law (typically R v Bourne, 1938) and in many cases, through relevant criminal provisions flowing from Scottish common law.45

Section 232 of the Nigerian Penal Code (applicable in Northern Nigeria), with its emphasis on prior confirmation of ‘… a woman with child’, has its origins in the provisions of Scottish common law.6 By contrast, sections 228 and 229 of the Nigerian Criminal Code (in force in the southern states of the country) require no such confirmation and are identical in wording to sections 58 and 59 of the English 1861 Act.7

The extraordinary survival of this ancient piece of legislation remains a source of bafflement until one acknowledges the unintended (or perhaps deliberate) genius of its six discrete references to the ‘unlawful procurement’ of abortion. The wording of the 1861 Act, fails conveniently to specify the precise conditions under which such unlawful procurement might otherwise be lawfully remedied! Indeed, a more cynical disposition may well conclude the perpetual preoccupation of all jurisdictions subscribing to the spirit of the 1861 Act to be nothing short of a painstaking interpretation of disputes in connection with the interpretation of ‘unlawful’ practices as established two centuries ago.

The genius of the 1867 Act is contained in its six discrete references to the ‘unlawful procurement’ of abortion

So what precisely is the point of the lesson thus far? According to the UN Department of Economic and Social Affairs, countries in developing regions are more than four times as likely to have restrictive abortion policies and high unsafe abortion rates as those in developed regions.8 Accounting for extraordinary changes to the law in countries such as Zambia, South Africa and more recently, Mozambique, the ‘thawing’ of restrictive abortion laws in Africa, though significant since the early 1990s, has not progressed towards the same degree of ‘advancement’ as experienced in Western Europe and North America since the foundational trigger-point of 1967.

A closer look at the legislative landscape across the European Union suggests a picture, not in total conformity with the aspirational principles of an EU ‘Common Rulebook’! The complex humanitarian, cultural, socioeconomic and legal considerations that underpin deep-seated convictions demonstrated on all sides, do not appear to travel quite so freely across borders (soft or hard) as do goods and services!

The practice of abortion remains (prima facie) a criminal offence throughout Great Britain, save for sanctioned exceptions explicitly justified by the provisions of the 1967 Abortion Act (page 36). Despite the progressive and astutely democratic liberalisation of anti-abortion laws sweeping across much of Western Europe since the 1960s, there remains the slightly embarrassing problem of how best to approach the culturally divergent outliers residing in Europe’s front room!9

Malta has the singular distinction of being the only EU member state to prohibit abortion entirely. Gibraltar (in a fashion similar to Sierra Leone) is governed by punitive abortion laws derived almost undiluted from the 1861 Act. Northern Ireland remains the only country in the United Kingdom outside the jurisdiction of the 1967 Abortion Act.10 Its unique internal politics makes it increasingly difficult to envisage any form of direct interference from a UK Parliament presiding from Westminster.

Africa appears keen to make the distinction between decriminalisation and wholesale liberalisation of its abortion laws,

Having waxed lyrical concerning the issues firmly deposited in Europe’s back garden, it remains precisely the case that Europe, unlike Africa, is not currently beleaguered with the range of problems associated with ‘backstreet’ abortions. Pregnant women in Northern Ireland, unexpectedly discovering themselves ‘quickened with child’ retain the established and lawfully sanctioned privilege of a ‘back route’ into Britain, albeit not always at the expense of the Exchequer.

WHO statistics indicate a 50 per cent decrease in maternal mortality (from 33 to 16 deaths per 100 000 live births) within the European region between 2000 and 2015, compared to a 35 per cent reduction in Africa (840 to 542 deaths per 100 000 live births) over the same period. Official (2015) figures for Nigeria and Sierra Leonne were 814 and 1,360 respectively.11

Africa appears keen to make the critical distinction between decriminalisation and wholesale liberalisation of its abortion laws. While the majority of the continent has been progressive in reinterpreting a legacy of British colonial influence in this area, many have found it difficult to embrace the enormous shift in cultural paradigm required to adopt the more liberal principles advocated through the UK Abortion Act of 1967.

 

Nigeria is home to the world’s largest seminary, and one-sixth of the world’s Catholics are are expected to be African by 2025

The balance may reside in the attitude of the continent to the largely undiscussed subject of contraception. However, this discussion cannot proceed without due consideration for Africa’s diverse and culturally conservative socio-religious heritage. Nigeria is home to the world’s largest seminary, and one-sixth (230 million) of the world’s Catholic population is expected to be African by 2025.12 Far from being a subject of concern solely for the African continent, a pattern of similar challenges observed across culturally distinct countries such as Poland, Argentina and Ireland suggests the need for a more cohesive and contemplative approach to the resolution of this hugely significant and sensitive global challenge.13

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