Condoms, abortions, LGBT rights: Controversial cases filed in court this year

A file photo of Marie Stopes clinic in Eastleigh, Nairobi. /FILE
A file photo of Marie Stopes clinic in Eastleigh, Nairobi. /FILE

As the year ends, there are several cases which stand out having been filed in court which have caught the eye of the public and have been a trending topic on all social media platforms.

The recent ban of abortion at the Maries Stopes Clinics countrywide drew mixed reactions on social media with some supporting the move and the other half condemning the decision.

A reproductive health organization then moved to court in a bid to lift the orders issued by the board arguing that KMPDU and the KFCB undermine women's and girls’ access to reproductive health services.

The lobby group argued that the had a chilling effect on healthcare service providers who are now in fear of providing these essential, life-saving services for fear of harassment and prosecution.

It was also their argument that it is the government’s obligation to put in place policies and guidelines that address access to safe abortion services and ensure the full implementation of those policies.

“Women are dying from complications and disabilities that arise from unsafe abortion, yet these deaths are easily preventable. The government must show commitment towards addressing the issue of unsafe abortion to reduce the high rates of maternal mortality.” They argued.

The center is urging the High Court to protect women’s health and lives by restoring safe abortion trainings.

It also wants the Ministry of Health to introduce standards and guidelines that appropriately clarify when legal abortion can be provided.

According to research, unsafe abortion accounts for a quarter of maternal deaths in Kenya and that’s the reason why the lobby group wants the court to lift the orders.

In the Kenyan law, abortion is only allowed if in the opinion of a medical provider, a woman’s life or health is at risk, or in emergency situations.

The Lobby group says that estimated 464,690 women got an abortion

in Kenya in 2012 and nearly 120,000 women were admitted to public health facilities that year for severe complications resulting from unsafe abortions.

The case is still pending in court and the court is expected to rule whether Marie stops will resume operations or not.

Meanwhile, in another related case, the same lobby group alongside FIDA Kenya have also challenged the move by the Ministry of Health to withdraw guidelines on safe abortion saying it’s a violation of their rights.

A five judge bench comprising of Justices Aggrey Muchelule, Mumbi Ngugi, George Odunga, Lydia Achode and John Mativo is expected to make a ruling on the said move by the state and it will be a big win for the lobby groups if the guidelines are reinstated by the court.

This year also saw a huge win for the LGBT community in Kenya after the high court lifted the ban of the Rafiki Film which had been blacklisted by KFCB and banned from showing in the cinemas.

Rafiki which is an acclaimed film portraying a lesbian romance and that it the reason why the Kenya Film Classification Board banned it over its homosexual theme.

The film director moved to court in a bid to lift the ban so that she could screen it in Kenya being one of the requirements for submitting it for the Oscars Awards.

Rafiki which has received accolades and condemnation in the same measure tells the story of a romantic lesbian couple in the Kenyan set up which is not the norm.

In her application to court, Kahiu argued that the ban had made it impossible for her to submit the film for review by the Oscars Selection Committee Kenya for consideration in the Best Foreign Language Film category award.

Justice Wilfrida Okwany lifted the ban temporarily for seven days for adults only so that Kahiu could qualify to submit to the Oscars.

Even though they lost out at the nominations it was a big win for the gay and lesbian community who argue that 10 years ago no judge could give such an order.

The case still pending before court and it remains to be seen what the court will rule on whether the movie ban which is still in force will be lifted.

The Gay couples in Kenya are also awaiting with baited breath for the courts decision in their case where the director of National Gay and Lesbian Rights Commission Eric Gitari is seeking to decriminalize Sections 162 and 165 of the Penal Code.

Sections 162 (a) and (c) says that any person who has ‘carnal knowledge against the order of nature’ or permits a person to have ‘carnal knowledge against the order of nature’ against them has committed a crime.

The Gay community hopes the three judge bench comprising of Justices Roselyn Aburili, Chacha Mwita and John Mativo will rule in their favour and repel the section just as the Supreme Court of India did a few months ago in their landmark ruling.

Gitari argues that the sections are discriminatory and violate various provisions of the Constitution. These include right to equality, freedom from discrimination, human dignity, freedom and security of the person and right to privacy.

He argues that the law criminalizing relevant conduct such as unnatural and grossly indecent are so degrading since its consensual sex among consenting adults.

The government on its part has maintained that they will not legalized homosexuality and has asked the court to dismiss the case.

They argue that declaring sections 162 and 165 of the penal code as unconstitutional would tantamount to allowing unnatural offenses between people of the same gender who may have a legitimate expectation to enter into a marriage which is contrary of Article 45 of the constitution.

According to the state, allowing unnatural acts on basis that it is done in private will be tearing the social fabric of the Kenyan society further arguing that the privacy is not an excuse to commit a crime.

In the case, Christian and Muslims organization have also opposed the case by the homosexuals urging the court to throw out the case.

Murang’a Senator Irungu Kang’ata has also been enjoined in the matter and he also strongly opposed the move claiming that culturally homosexuality was not allowed and it’s against the norm.

The ruling for the case is scheduled for this month.

The case that trended for days was one where a man sued Beta Healthcare seeking damages for a selling him a substandard condom that broke during intercourse.

He said that when he bought the condom he believed it would please his partner and fully protect him but it burst.

He claims that as a result he ended up infecting his wife, who has since left him, with a sexually transmitted infection.

“That I was fully aware of the dangers of having unprotected sex and decided to use my favorite brand of condoms, being the Zoom scented chocolate-flavoured studded condoms, which I believed would please the woman and protect me fully,” he said.

The man claims that he was also informed by his friends that some of them had experienced the condom breaks from the same brand of condoms.

However, in a twist of events, the Beta Healthcare has claimed that he could have worn the size and condoms since they come in many sizes.

In their response to his case against them, the company says that condoms come in sizes and every man, depending on how much endowed or less endowed, ought to use the right size.

"I am aware of the fact that if one puts on a condom that does not match his size, there is a high chance of rupturing," the company said.

They also said the man cannot be trusted since he cannot prove that he indeed bought zoom condoms as he claims.

The company wants the court to dismiss the man's case as it is a waste of judicial time.

In Beta’s view, the man cannot be believed because though he claims to be married, he seems to have cheated on his wife with many women.

"The petitioner is solely responsible for his misfortunes and he cannot assert that Beta is responsible for his marital problems, mental distress, alcoholism and the loss of his job," they told court.

The case is still ongoing and the stressed man who claims to have lost everything due to the condom burst is hopeful the court will given him damages for what he went through.