Getting your Trinity Audio player ready...

On September 28, International Safe Abortion Day, everything is worth confronting: abortion existed in African societies before colonial rule, but so did systems of patriarchal authority. In simple terms, abortion was not introduced to Africa by colonialism. Before European rule, different African societies had their own practices for ending pregnancies, including herbs and other methods. These practices were not uniform, and neither were the rules governing them. In some communities, custom, lineage structures, and women’s councils governed matters related to fertility and pregnancy. 

BAOBAB for Women’s Human Rights cites evidence from Meru, Kenya, where colonial authorities eventually overrode women’s councils that had exercised authority over reproductive matters. This history becomes different when abortion moves from being governed within communities to being regulated through colonial criminal law. “In The Law Came in a Ship: Africa’s Colonial Abortion Laws and the Case for Safe Abortion,” published by BAOBAB for Women’s Human Rights ahead of International Safe Abortion Day on September 28, the organisation traces the origins of many of Africa’s abortion restrictions to laws drafted outside the continent. The publication identifies four legal texts that account for much of this inheritance: Britain’s Offences Against the Person Act 1861, the Indian Penal Code 1860, Queensland’s Criminal Code 1899, and France’s  Code pénal 1810.

Britain’s 1861 law criminalised attempts to get an abortion and imposed punishment on anyone who administered drugs or used other means to cause a miscarriage. Section 58 applied to a woman herself and to anyone attempting to procure a miscarriage for another woman. Those provisions did not remain in Britain. They travelled with colonial administration.  Nigeria’s abortion laws still carry those colonial legal laws. The Criminal Code, used mainly in the south, contains abortion provisions modelled on the English legal tradition, while the Penal Code used in Northern Nigeria is connected to the criminal law developed in British India. Independence did not remove those provisions; they remained part of Nigeria’s criminal law long after the colonial governments that introduced their legal models had left.

Laws from elsewhere,imposed here

The legal history varies across African countries, but the pattern is clear in the cases examined by BAOBAB. Sierra Leone inherited the English legal framework. Southern Nigeria and The Gambia inherited provisions derived from Queensland’s Criminal Code. Northern Nigeria’s Penal Code was based on the Sudan Penal Code, which had itself been adapted from the Indian Penal Code developed under British rule. Ghana’s colonial criminal law came through the Gold Coast Criminal Code Ordinance, while Liberia followed a different path, having never been colonised by a European power. In Nigeria, the colonial inheritance is very visible.

The Queensland Criminal Code provisions on abortion correspond closely with sections in Nigeria’s Criminal Code. The article traces the Queensland code’s arrival in Nigeria to the colonial period and notes that the provisions remained unchanged on this point. Northern Nigeria followed a separate legal route through the Sudan Penal Code and the Indian Penal Code. Its Penal Code came into force on September 30, 1960, three days before Nigeria became independent.

Colonial law and religious authority

Colonialism did not create every restriction on women’s reproductive lives, and the paper does not make that claim. Patriarchal authority has existed in African societies before European occupation. Women’s reproductive choices could be shaped by marriage, family, lineage, custom and other forms of social authority. Colonial rule introduced another layer of control: the criminal law of the colonial state, and religion became part of it. Missionary institutions had become deeply involved in education and healthcare in parts of West Africa, while colonial administrations in Northern Nigeria worked through existing emirate structures and Maliki legal traditions. Religious institutions continued to wield influence after independence. The laws remained, and religious leaders became some of their most vocal defenders.

BAOBAB documents several examples. In Sierra Leone, the Inter-Religious Council opposed the Safe Abortion Act passed by Parliament in 2015, and the legislation was never brought into force. In Nigeria, Catholic leaders have opposed attempts to expand abortion access, including the Federal Ministry of Health’s review of abortion provisions in 2024. The history cannot be reduced to a simple story of religion creating abortion restrictions; the criminal provisions were already rooted in this colonial law, and religious opposition later helped preserve and defend these restrictions that had survived independence, and it is relevant when restrictive abortion laws are presented as ancient or uniquely African values.

 The cost of keeping the laws

Abortion continues to happen regardless of whether a government permits it. The only difference is the conditions under which it happens. BAOBAB cites estimates that 77 per cent of abortions in sub-Saharan Africa are unsafe and that nearly 15,000 women die from abortion each year across the region. The region has an estimated 185 deaths per 100,000 abortions, substantially higher than the figures cited for Asia and Latin America. Nigeria carries a significant share of that number. The paper cites United Nations estimates placing Nigeria among the countries with the highest numbers of maternal deaths globally, with about 75,000 maternal deaths recorded in 2023. It also cites estimates that unsafe abortion accounts for at least one in ten maternal deaths in the country. A national study published in 2015 estimated that 1.25 million abortions occurred in Nigeria in 2012. 

Around 212,000 women were treated for complications, while an estimated 285,000 women who needed treatment did not receive it. BAOBAB cites evidence that mortality from safely performed abortion is extremely low, while unsafe abortion carries a greater risk of death. Criminalisation can therefore shape whether a woman obtains medical care under safe conditions or is pushed outside the formal health system. The colonial inheritance has not been impossible to change. South Africa replaced its apartheid-era abortion law with the Choice on Termination of Pregnancy Act, which came into force in 1997. BAOBAB reports that abortion-related deaths fell from 425 in 1994 to an average of about 40 a year between 1998 and 2001 — a 91 per cent decline. 

Ghana expanded its abortion law in 1985, allowing termination in cases including rape, defilement, incest, risks to physical or mental health and serious fetal abnormality. The country’s health system developed comprehensive abortion care services. Yet research cited by BAOBAB found that seven out of ten abortions in Ghana in 2017 were still occurring outside the legal framework. Ethiopia replaced its previous framework in 2005 with a Criminal Code permitting abortion in specified circumstances, including rape or incest, risks to a woman’s life or health and serious fetal abnormality. Tunisia had expanded access much earlier, in 1973, allowing abortion during the first trimester on request. Legal reform, however, does not automatically translate into access. Health services, cost, geography, stigma, provider availability and administrative barriers can still prevent women from obtaining care.

An African legal instrument addresses reproductive rights directly: the Maputo Protocol, adopted by African states in 2003, recognises women’s sexual and reproductive health rights. Article 14 protects the right to control fertility, decide whether and when to have children, choose contraception and access health and family-planning information. Article 14(2)(c) requires States Parties to protect reproductive rights by authorising medical abortion in cases of sexual assault, rape, incest, and where continuing a pregnancy endangers the woman’s mental or physical health or her life or that of the foetus.  The African Commission on Human and Peoples’ Rights adopted General Comment No. 2 in 2014 to provide guidance on implementing these provisions. The Commission describes Article 14 as guaranteeing women’s right to sexual and reproductive health and notes that many states still have not made the legislative changes necessary to fully implement it. The Commission has continued to call on African states to make safe and legal abortion accessible. In its 2024 statement for the Global Day of Action for Access to Safe and Legal Abortion, it urged member states to establish laws, policies and resources that facilitate affordable, accessible and safe abortion in line with the Maputo Protocol.

Nigeria has already taken some steps within its existing framework. The Federal Ministry of Health issued national guidelines on safe termination of pregnancy for legal indications in 2018, while the National Agency for Food and Drug Administration and Control has approved and listed mifepristone-misoprostol products. NAFDAC’s Greenbook currently lists Mariprist as an active prescription-only medicine, approved on July 31, 2024. 

The Maputo Protocol goes further than simply permitting abortion in limited circumstances. It places reproductive healthcare within a broader framework of women’s rights. That framework exists alongside Nigeria’s inherited criminal provisions for anyone who undergoes an abortion. BAOBAB is calling on African governments to make abortion available on every ground already permitted by their laws, provide post-abortion care without prosecution, fully implement Article 14(2)(c) of the Maputo Protocol, and review restrictive laws and administrative procedures that continue to obstruct access. It also calls for law reform bodies to identify colonial-era provisions and reconsider their continued place in national law.

Colonial governments added their own criminal laws to it, and many of those laws remained after independence and they are still shaping reproductive healthcare today. On International Safe Abortion Day, we ask African governments to confront both histories: the law that arrived through colonial rule and the African standard that came afterwards, because this prohibition may have arrived by ship, but the Protocol was written here.