Legal Abortion and the enjoyment of human rights
By Onyango Musa Mwamburi
What is the cost of the human soul? Is the killing of an innocent child going to ease a mother’s conscience over a traumatizing experience? What are psychological and social effects on a mother who has to nurse and nurture a child out of a sexual assault incident? What are the safeguards and options on safe abortion in Kenya?
In 2014, a 15-year-old form two girl, who will be referred to as JMM, was sexually assaulted by unknown assailants that led to a pregnancy. Owing to her tender age, she procured an abortion, which led to her to lose a lot of blood and consequently kidney complications. Three years later, the post abortion effects took away her life at the age of 18.
One year before JMM’s assault and death, the Ministry of Health had withdrawn the national guidelines on safe, legal abortion in December 2013. All health workers were directed not to participate in any training on safe abortion and use drugs used in termination of pregnancies. This notwithstanding the fact that the Kenya National Commission on Human Rights (KNCHR) had in 2012 recommended that the government develops safety guidelines on abortion within the premise of the law. The recommendation was drawn from findings of a National Public Inquiry on Sexual and Reproductive Rights in Kenya held by KNCHR between 2011 and 2012.
Thus in 2015, civil society actors took JMMs case to the high court, citing KNCHR’s recommendations amongst others in a bid to build a case for reinstatement of the National Guidelines that were withdrawn by the Ministry of Health in 2013. KNCHR was enjoined as Amicus Curiae in the case.
Thus, in its landmark ruling on 12th June 2019, the five judge bench ruled that article 43(1) (a) and article 26 sub-article 4 of the constitution were contravened; through the withdrawal of the national guidelines on safe abortion. The provisions of article 26 sub-article 4 are; 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 (Health entails a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity as per section 2 of the Health Act, 2017), or if permitted by any other written law. Article 43 sub-article 1 (a) states that: every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care. JMM was deprived of safe abortion and apt post abortive care on account of the withdrawal of the national guidelines.
Thus, in view of the rights JMM was denied, she won the case posthumously and her mother was awarded 3 million shillings as compensation. The five judge bench further directed the Ministry of Health reinstate the national guidelines on safe abortion that had previously been revoked.
The Commission, in delivering its mandate to Kenyans does not call for the legalization of all abortion cases. Rather, calls for strengthening of reproductive health rights through the institutionalization of safeguards for legitimate cases that require abortion within the premise of the law and other constitutive policies.