The high rate of maternal mortality and morbidity in Kenya remains a concern that requires urgent intervention. The Ministry of Health, in a past national survey, reported that unsafe abortions claimed the lives of 266 out of 100,000 women who procured it, thereby ranking unsafe abortions as the leading cause of high maternal mortality and morbidity in Kenya. Amidst this crisis, various legal and policy barriers stand in the way of truly realizing the sexual and reproductive health of women and girls in Kenya.
Kenya is a State Party to the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (also known as the Maputo Protocol), having acceded to it in October 2010. By doing so, it consented to being bound by the provisions under the Protocol, and to respect, protect and fulfil the rights of women and girls in Kenya. However, when it acceded to the Protocol, Kenya made a reservation to Article 14 (2) (c) of the Protocol which obligates State Parties to “protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.” Kenya justified this reservation on the basis that it contravenes the Constitutional provision on the right to life under Article 26. The implication of this reservation is that Article 14 (2) (c) of the Maputo Protocol does not have any legal effect in its application to Kenya, nor is Kenya obligated to report internationally on measures it has taken to respect, protect and fulfil the right to medical abortion in Kenya.
In line with its Constitutional mandate to promote and protect human rights in the Republic of Kenya and ensure state compliance with regional and international human rights instruments, the Commission has submitted an advisory to the Office of the Attorney General on the need for Kenya to lift the reservation it made to Article 14 (2) (c) of the Maputo Protocol. In its analysis, the Commission has established that this reservation is contrary to Article 26 (4) of the Constitution of Kenya, and hence null and void. The Constitution of Kenya, under Article 26 (4) permits abortion where “…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 High Court of Kenya has elucidated that this right applies to “situations in which emergency treatment is required or where in the opinion of a trained health professional the life or mental or psychological or physical health of the mother is in danger”. The same Court has also interpreted that Section 35 (3) of the Sexual Offences Act, 2006 permits abortion in cases where a pregnancy results from sexual violence. The African Commission has additionally clarified that “forcing a woman to keep a pregnancy resulting from sexual violence constitutes additional trauma which affects her physical and mental health”.
The Commission remains equally concerned that the apparent blanket prohibition of abortion under the Penal Code, without articulating clearly the lawful grounds upon which abortion is permitted in the Constitution has the impact of unduly deterring health care providers from providing services where abortion is lawful. Furthermore, the withdrawal by the Ministry of Health of the Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya, 2012 and the National Training Curriculum for the Management of Unintended, Risky and Unplanned Pregnancies, 2012 denies women and girls their right to legally access abortion services, thereby exposing them to unsafe methods of terminating pregnancies. The Commission thus calls for legislative amendments to the Penal Code and the reinstatement of the crucial guidelines and curriculum.
Article 43 (1) of the Constitution of Kenya enshrines the right of every person to the highest attainable standard of health, including reproductive health. The State is obligated to respect, protect and fulfil the sexual and reproductive rights of women by removing the legal and policy obstacles to their true realization.
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