When many people viewed the rising sun as a sign of a new day, King Louis XVI saw it as representing the French monarchy. He likened himself to the sun, seeing the rest of France as planets and stars orbiting around him. 

His famous proclamation, I am the State, the State is me, something is legal because I wished it, summarised his belief in his absolute authority. While this article isn’t a history lecture, it highlights these historical accounts to invite readers to the debate others fear engaging in. 

Perhaps we should begin by asking what determines legality. In old France, legality was synonymous with Louis XVI’s wishes.

I once posed this question to a Tanzanian police officer, who responded from the expected law enforcement standpoint: “Anything prohibited by law is illegal.” These discussions prompted me to provoke a debate. I asked my colleague: Why should the law compel a woman raped or sexually assaulted to continue with pregnancy?

Observing his disagreement without a valid counterargument, I emphasised, “Laws should be tools for social engineering, striving for a fair society guided by informed decision-making and rationality.”

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Reflecting on instances where certain ethnic societies favoured practices like female genital mutilation (FGM), I pointed out how parliament, equipped with accurate information, logically deemed FGM outdated and enacted laws against it, transcending the cultural norms of some communities. With that, I concluded my point.

Later, in a conversation with an advocate of the High Court, we delved into criminal offences such as theft and the government’s confiscation of stolen items, referred to as “proceeds of crime,” stressing that nothing legal can rise from illegalities. 

Rape

This discussion prompted me to reconsider the issue of rape. I questioned why a woman impregnated through such a heinous act should be compelled to carry the pregnancy to term.

Driven by these reflections, I called a healthcare friend for insight. She reminded me of the Protocol to the African Charter on the Rights of Women in Africa, simply Maputo Protocol, which safeguards women’s rights to legal and safe abortion in cases of rape, sexual assault, incest, or threats to maternal or foetal health. 

However, she pointed out that Tanzania, despite ratifying the Protocol, has yet to integrate its provisions into domestic law, including the Penal Code, which presently criminalises abortion except when necessary to save the mother’s life.

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Curious about the Protocol’s implementation, I inquired about countries that have successfully incorporated its principles into their legal frameworks. She briefly mentioned Rwanda and South Africa, which have expanded upon the Protocol’s stipulations. 

Rwanda has introduced a provision addressing forced marriage, while South Africa includes a ground related to the mother’s socioeconomic status. 

These countries have demonstrated commitment to upholding international agreements, adhering to the principle of pacta sunt servanda, or agreements that must be kept, as expressed in Latin.

When considering Tanzania’s situation, I wondered about its potential to emulate Rwanda and South Africa. As a dualist state, international laws, like the Maputo Protocol, require domestic incorporation for enforcement. These two nations have succeeded; could Tanzania follow suit?

State and religion

Reflecting deeper, I delved into the intersection of state and religion. Like its counterparts, Tanzania embraces secularism. The country lacks a state religion and prioritises individual freedom regarding religious beliefs. 

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Could a secular parliament mandate ten per cent deductions from employees’ salaries for religious tithing? Concluding confidently, I anticipated a resounding no. Why enforce one religious norm via state law while neglecting others when personal choice aligns with fundamental freedoms?

Delving into deep contemplation, I envisioned a scenario where a religious group, in adherence to the law, registers their faith and designates Wednesday as a day of worship, seeking legislative protection. Will Tanzania’s secular parliament grant their plea? 

Assume it does; it sets the precedent. What if two more religions follow suit, each demanding a different day off? The resulting dilemma begs the question: will any workdays remain if every religious group seeks the state’s legislative protection? 

This contemplation underscores Tanzania’s identity as a secular state free from religious affiliation. But is this freedom from religious affiliation obvious in the reasoning behind legislative decisions and/or omissions?

After a few days, I called the health worker again. She skipped pleasantries and voiced her disappointment, reminding me of my previous call’s abrupt end. Undeterred, I asked, “How does China approach our topic?” Without missing a beat, she delved into a comparison. 

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“The Chinese, much like South Africa and Rwanda, uphold the same grounds; abortion is legal on pregnancy resulting from rape and incest,” she explained. “However, China enforces a two-child policy, permitting legal and safe termination for a third pregnancy.” 

Safe abortion 

Her emphasis on “safe abortion” resonated with her firsthand experience in Tanzania’s health sector, where she witnessed the dire consequences of unsafe procedures. Tragically, nearly thirteen per cent of maternal deaths in Tanzania result from such practices. 

We must expand grounds for legal and safe abortion by aligning with our endorsement of the Maputo Protocol. Yet, its impact remains limited until we domesticate it into our laws.

The stigma surrounding abortion leaves many women afraid to seek post-abortion care, fearing society’s judgment and the subsequent legal process, unaware that forgoing post-abortion care could lead to severe consequences, including lifelong infertility. 

Addressing these challenges requires a multifaceted strategy, starting with amendments to the Penal Code, Cap 16, to allow abortion for victims of rape, assault, or incest. 

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Echoing Deng Xiaoping’s wisdom, We shall cross the river by touching the stones, Tanzania must proceed with deliberate yet very cautious legal reforms to safeguard the sexual and reproductive health rights of women while preventing the abuse of the process.

Shying away

My quest for knowledge has fuelled my passion for debate, revealing that while Tanzanians enjoy debating, many shy away from discussing abortion. 

Despite awareness of widespread illegal and unsafe abortions leading to maternal deaths, Tanzanians often avoid the topic, citing the law’s prohibition without acknowledging its changeability. 

In the words of Tanzania’s first President, Julius Nyerere, “We can’t solve our problems by assuming they don’t exist.” Tanzanians forget that our laws weren’t proclaimed by King Louis XVI, who claimed to be the State, and the laws were his wishes.

Instead, our laws are written by the people’s elected representatives; thus, they can be erased and rewritten to protect women from being forced to carry pregnancies resulting from rape or sexual assault. 

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By endorsing and ratifying the Maputo Protocol, Tanzania has moved beyond debating its people’s values and norms. Now, it’s time to act. Let’s embrace open dialogue, view the world objectively, and tailor solutions to safeguard women’s sexual and reproductive health rights within our unique context.

Clay Mwaifwani is a Dar es Salaam-based lawyer and commentator. He can be reached at claymwaifwani09@gmail.com or on X as @clay_mwaifwani. The opinions expressed here are the writer’s own and do not necessarily reflect those of The Chanzo. If you are interested in publishing in this space, please contact our editors at editor@thechanzo.com.