In the run-up to the second referendum on the Constitution in 2010, a spirited “no” campaign led by religious leaders opposed the proposed supreme law of the land on the basis that it favoured abortion, among other contentious issues.
Marches were staged and fervent prayers were said as fiery preachers across the religious divide joined hands to fight the niggling abortion clause – Article 26(IV) of the Constitution. Finally, on August 4, 2010, Kenyans resoundingly cast their vote in favour of the new Constitution, but the war on the contentious clause was far from won.
Three years later, on August 21, 2013, the Director of Medical Service, Dr Francis Kimani officiated the launch of a national report on the incidence and prevention of unsafe abortions, one of the leading causes of maternal mortality in Kenya.
It showed that an estimated 266 in every 100,000 women of reproductive age (15 to 49 years) die from unsafe abortions every year. In the preceding year (2012), nearly 120,000 women were admitted to public health facilities for abortion-related complications, likely due to unsafe abortions.
Three months after that on December 3, 2013, the Director of Medical Services withdrew the guidelines on safe abortion, and the following year on February 24, issued a memo banning all healthcare workers from participating in any training on safe abortion and the use of the drug Medabon (a combination of Mifepristone and Misoprostol), on the list of essential medicines as the most effective and safest way to perform medical abortion.
And so began the second phase of the contention against Article 26(IV) of the Constitution of Kenya, which provides that: Abortion is not permitted unless in the opinion of a trained health professional, there is need for emergency treatment; if the life or health of the mother is in danger; or if permitted by any other written law.
Now health professionals can only make that critical decision upon acquiring proper training on the termination of pregnancy (abortion). Moreover, the absence of standards and guidelines to clarify the circumstances for safe legal abortion under the Constitution, has left healthcare workers confused and apprehensive about the entitlement of survivors of sexual violence to terminate pregnancies resulting from rape and defilement.
The Centre for Reproductive Health challenged the ministry’s directives and sought to have the matter settled by the High Court with the help of the Federation of Kenya Women Lawyers (FIDA). They were joined by an adolescent girl who developed complications after undergoing unsafe abortion, as well as Physicians for Human Rights and Article 19 Eastern Africa, a human rights organisation, as interested parties.
Opposing them was the Director of Medical Services, as well as the Kenya Catholic Doctors Association.
In the ongoing case, the ministry asserts that, “There is no shortage of legal abortion services in public hospitals nationwide where the requested abortions meet the requirements of Article 26(4) of the constitution, where 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 ministry argues that unauthorised teaching of health workers on abortions may spawn a wave of illegal abortions countrywide. Physicians for Human Rights, on the other hand, argue that in the absence of training and guidelines on safe abortion women and girls with unwanted pregnancies as a consequence of sexual violence, lack clear information on the availability of or their entitlement to access termination of pregnancy services.
Forcing victims of sexual violence to carry an unwanted pregnancy may occasion mental instability, trauma and psychological torture to them.
They should not be made to suffer twice, through compulsion to carry to term pregnancies that are the consequence of offences, which are prohibited under Penal Code and under the Sexual Offences Act that explicitly prohibits rape, defilement and incest as sexual offences in Kenya.
Moreover, the Ministry of Health has in the National Guidelines on Management of Sexual Violence in Kenya (NGMSVK), allowed abortion in certain instances. The guidelines provide that survivors of sexual violence have a right to, “access termination of pregnancy and post-abortion care in the event of pregnancy from rape.”
PHR, therefore, argues that by providing survivors of sexual violence access to termination of pregnancy services, the guidelines contemplate that there are a myriad of factors that may make it difficult for survivors to access emergency contraception within 120 hours, or at all, following an incident of rape or defilement.
USE OF MEDABON
Further, that the guidelines rightly recognise that the protection afforded to survivors of sexual violence for prevention of unwanted pregnancies cannot end with the provision of emergency contraception. Survivors have a right to comprehensive reproductive healthcare that includes the ability to access services for termination of pregnancies in the event that they conceive as a result of rape or defilement.
The petitioners and their supporters insist that they are not advocating for blanket abortion in all instances of pregnancies resulting from rape, defilement and incest. Rather, they seek to secure the protection of women and girls’ right to make a choice whether or not to keep such a pregnancy, without fear, coercion or discrimination.
Article 19 Eastern African, a lobby group which is also supporting the petition, claims that the directive stopping healthcare workers from participating in any training on safe abortion and use of Medabon, and further warning of legal professional sanction if they attended, amounted to unjustifiable limitation of the freedom to seek, receive and impart information or ideas and academic freedom as well as freedom of research.
The ministry through the DMS however says that there is sufficient professional manpower in public hospitals to cater for all the situations that are envisaged by the Constitution, and that since any other abortion-at-will and abortion-on-demand situations are not provided for in law, emergencies created by such practices are the creation of the petitioners’ own mischief and that, “the government ought not to be condemned for not catering for such situations.”
According to the DMS, women suffering from post-abortion complications are never turned away from health institutions, and are accorded the necessary healthcare at great expense to the taxpayer. Further, that the guidelines were withdrawn on December 3, 2013 for the reason that there was disagreement amongst the stakeholders, including different faiths regarding the contents of the said guidelines.
“It was intended that there should be harmony among all the stakeholders concerning a document so crucial to the life and health of many people in the country. I therefore believe that the circular dated February 24, 2014, seeking to bar all health workers from being trained on safe abortion practices was a necessary consequence to the withdrawal of the guidelines,” DMS in court papers.
A stakeholders meeting organised to develop the desired consensus, held on June 5, 2014 raised various concerns on the guidelines. A taskforce that came up with the latest version of the guidelines was composed of a few individuals and thus it was not representative of key Ministry of Health stakeholders.
“Some members also felt that their names appeared in the document yet they did not contribute to the changes that were made behind their backs and which are the main contentious issues of the document thus reflecting negatively on the organisations they represent,” DMS explains in his court papers.
There was also need to align the document with other related documents such as Maternal and New-born Health guidelines, child survival documents, and others, which had not been done.
The DMS has sought to explain the delay in finalising the guidelines by stating that any document that involves the lives and welfare of many people, and especially one that affects different faiths and beliefs, is difficult to complete especially in light of the requirements of public participation contained in the country’s constitution.
RIGHT TO LIFE
Allowing any unpermitted training of health workers on abortion may bring about a catastrophe nationally because the ministry is not responsible for the quality of such training, the implementation by health workers of such training, if substandard, may cause death or complications in persons who seek abortion.
The government he says, has also strived to eliminate unskilled abortion providers, and equally works hard to avoid creating the public impression that it encourages abortion in a manner that is not allowed by the county’s constitution.
KCDA, argues it is unfair and unjust for Fida and others to allege violation of their rights and fundamental freedoms and asking the court to unlawfully deny other human beings their right to life, since it is the right to life that enables them to acquire other rights.
“There will be discrimination against an entire class of living humans on the basis of age (too young) and the place of residence (still living in the womb) if the mother is granted the legal right to kill another (her developing baby) in order to solve her own personal social problems,” says KCDA adding the contested guidelines were withdrawn to enable the Ministry of Health to come up with a good policy document that enhances the right to life including children.
Further, that abortion is surgery that ought to be performed by a trained health professional and not worker because of its complexity.
“The number of reported cases of professional negligence arising from abortion carried out by health workers would be higher because of the poor training than when it is done by a health professional,” posits KCDA in court papers.
Unsafe abortions could be one of the main causes of maternal mortality in Kenya, but the legalisation of abortions is not a guarantee of safe abortions since the effects of abortion are not done away with. There is for instance, the Post Abortion Syndrome (PAS) that the patient will undergo which worsens her situation.
It is also possible that making abortion legal in cases of rape would force women to lie especially in cases where reporting is not done or effective. The rape victim’s only recourse will be abortion yet she would otherwise love to carry the pregnancy to the end if at all there is no penalty for it.
KCDA also argues that over the years, victims of abortion are denied full and factual information about abortion and its complications whether immediate or long term, to enable them make informed free decisions.
What is given to them is often false and the complications are ignored, glossed over or given on paper in fine print. The use of Medabon puts more women and young girls in danger because of their side effects that are not well documented or informed by the health providers.
“In majority of the rape cases, the pregnant victim’s problems stem more from the rape trauma than the pregnancy itself. She has been a victim of one violent act and we cannot as a nation facilitate her being a party to the second violent act of killing an innocent child.”
Without condoning rape, trauma has already occurred and abortion will only compound it and not erase it. Making abortion legal in Kenya literally implies that we deny the rapists’ children a chance to live and yet in normal circumstances, children are never punished for the crimes of their parents. Hearing resumes on February 1, next year.