The criminalisation of abortion in Uganda: Understanding Article 22(2) of the Constitution of Uganda in light of its drafting history
The criminalisation of abortion in Uganda: Understanding Article 22(2) of the Constitution of Uganda in light of its drafting history

Summary/Abstract: Article 22(2) of the Constitution of Uganda (1995) provides that “[n]o person has the right to terminate the life of an unborn child except as may be authorised by law.” It is different from the approaches taken in some African countries such as in Somalia, Kenya and Eswatini where the constitutions expressly provide for some of the grounds on which a pregnancy can be terminated. Parliament has not yet enacted legislation to give effect to Article 22(2). Hence, sections 130–132 of the Penal Code Act (1950) still criminalise attempts to procure abortion; procuring miscarriage; and supplying drugs to procure abortion. However, section 207 of the Penal Code Act allows abortion as a “surgical operation” to save the life of the mother. The Supreme Court of Uganda has explained different rules of constitutional interpretation. Referring back to the drafting history of the Constitution is one of those rules. There are different rules of constitutional interpretation the reliance on which could lead to a different outcome when interpreting Article 22(2). In this article, I rely on the drafting history of the Constitution to argue that Article 22(2) should be interpreted as permitting abortion for the purpose of saving a woman’s life even if it is not done as a surgical operation. Thus, I disagree with the Constitutional Court’s decision in Human Rights Awareness Promotion Forum and Others v Attorney General (2025), in which the Court held that the drafting history of Article 22(2) suggests that abortion is only legal if committed as a surgical procedure to save the life of a mother. I also argue that abortion on other grounds such as where a foetus has serious abnormalities and that the pregnancy was as a result of a criminal act such as rape, defilement or incest has to be legalised by Parliament expressly. Thus, the argument that Article 22(2) should be interpreted as legalising abortion on common law grounds is not supported by its drafting history.

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