The controversy surrounding abortion has returned to haunt the government five years after the adoption of the new Constitution, as vested interests contest existing guidelines.
The Constitution allows abortion when the life or health of a pregnant woman is at risk.
“Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law,” the Constitution says on the right to life.
However, the government, through the ministry of Health, has been put on the spot after it withdrew its “Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya”.
The storm has also been stirred by a memo from then director of medical services Nicholas Muraguri to public and private health workers, which said the Constitution was clear that abortion on demand was illegal.
According to petitioners in a case filed in the High Court, the ministry’s memo did not say that abortion was legal under certain circumstances.
The petitioners include the Federation of Women Lawyers in Kenya (Fida), two community human rights mobilisers and an adolescent girl who developed complications after an unsafe abortion.
They also said that the ministry’s action prohibited health workers from participating in training that bordered on anything to do with safe abortions, or the use of the drug Medabon for medical abortion.
The petitioners added that the memo was issued after the Health ministry withdrew its standards and guidelines for reducing illnesses and deaths related to unsafe abortions.
“The ministry’s action has created confusion among health workers and denied women their right of access to safe and legal abortion services,” said the petitioners.
The withdrawal of the guidelines, without consulting the multi-sector stakeholders who participated in their development, has also left health workers confused, “without official guidelines as to when they may provide safe abortion services”.
Unsafe abortions have been reported among the main causes of maternal deaths in the country.
In 2012, almost 120,000 women were admitted to public hospitals and health centres for abortion-related complications, likely due to unsafe abortions.
An estimated 266 Kenyan women die per 100,000 unsafe abortions annually.
“This case, the first of its kind in Kenya, seeks to address the issue of unsafe abortion and challenges the ministry of Health’s actions as a violation of the Constitution and international law.
"By prohibiting training on safe abortion care, the ministry’s memo deters health workers — through the threat of prosecution — from providing safe, legal abortion or post-abortion care,” added the petitioners.
They said to protect women’s health and lives, it was essential that the ministry of Health clarify when medical workers could provide safe and legal abortion services.
The ministry, through Dr Muraguri, however, said there was sufficient professional manpower in public hospitals to cater for all the situations envisaged in the Constitution.
It added that since any other abortion-at-will and abortion-on-demand situations were not provided for, emergencies created by such practices “are the creation of the petitioners’ mischief” and that, “the government should not be condemned for not catering for such situations”.
Dr Muraguri explained that any person suffering from post-abortion complications was never turned away from health institutions, but accorded the necessary health care “at a great expense to the taxpayer”.
There were reports that the guidelines were withdrawn on December 3, 2013 because of disagreements among the stakeholders, including members of different faiths, regarding their content.
“It was intended that there should be harmony among the stakeholders concerning a document so crucial to the lives and health of many people.
"I, therefore, believe that the February 24, 2014 circular seeking to bar health workers from being trained on safe abortion practices was a necessary consequence to the withdrawal of the guidelines,” Dr Muraguri added in the memo.
A stakeholders meeting, held on June 5, 2014 and organised to develop the desired consensus, raised various concerns on the guidelines.
It came out in the open that the task force that came up with the latest version of the guidelines was composed of a few individuals and thus deemed to be not representative of key stakeholders in the ministry of Health.
“Some members also felt that their names appeared in the document, yet they did not contribute to the changes made behind their backs and which are the main contentious issues of the document, thus reflecting negatively on the organisations they represent,” Dr Muraguri said in his court papers.
He added that there was also a need to align the document with other related files such as Maternal and New-born Health guidelines, child survival documents and others, which had not yet been done.
The director of medical services, now the Health principal secretary, sought to explain the delay in finalising the guidelines.
He said any document that involved the lives and welfare of many people, and especially one that affected different faiths and beliefs, was difficult to complete, especially in light of the requirements of public participation as spelt out in the Constitution.
Dr Muraguri said allowing any unpermitted training of health workers on abortion could lead to a national catastrophe because the ministry would not be responsible for the quality of such training.
“As a result, the implementation by health workers of such training, if substandard, may cause death or complications in people who seek abortion services,” said Dr Muraguri.
“There is no shortage of legal abortion services in public hospitals nationwide where the requested services meet the requirements of the Constitution, in which case a trained health professional, not worker, has certified that there is need for emergency treatment or the life or health of the mother is in danger.”
The government, he said, had also endeavoured to do away with unskilled abortion providers, and equally worked hard to avoid creating the public impression that it encouraged abortion.
“In this regard, the use of Medabon, Mifepristone and Misoprostol would not be proper if the abortion is being conducted in contravention of the Constitution, and the prohibition in the memo in question of the use of these drugs should be seen in this light,” added Dr Muraguri.
The ministry said people other than trained health professionals did not qualify to conduct abortion in the manner provided by the law and their activities were, therefore, criminal.
He added that the ministry feared that there was a likelihood that the unauthorised teaching of the health workers on how to offer abortion services would spawn a wave of illegal abortions countrywide.
In a recent ruling, High Court Judge Isaac Lenaola referred the matter to Chief Justice Willy Mutunga.
The judge asked Dr Mutunga to constitute a bench of judges to hear and determine the case when he found that the petition was raising many substantial questions of law.
“It cannot be contested that abortion is a matter of great public concern and interest,” Justice Lenaola said in his February 19 ruling.
“Moral, ethical, legal and factual questions with debatable and difficult implications would arise in determining what constitutes safe abortion.”
The petitioners asked the High Court to issue a declaration that the rights of women and health workers had been violated.
They also urged the court to order government officials not to interfere with healthcare workers’ professional training.
They said patients ought to have access to medical information.
They also asked the court to order the government to develop and disseminate guidelines on safe abortions to healthcare workers and ensure that quality, safe, and legal abortion services are offered to those who need them.
They said the court should order the director of medical services to annul the memo and issue a new one that clarifies the circumstances for safe, legal abortions as provided for by the Constitution.