• A very large number of patients in women’s wards in Kenyan hospitals are there because of the effects of unsafe abortion.
• In Kenya, women and girls from poorer backgrounds are more vulnerable to sexual violence.
JMM was a 14-year-old schoolgirl, living in rural Kisii when sometime in 2014, she was forced to have sexual intercourse.
Due to a lack of information on how to respond to the situation, or whom to approach, she was not able to receive immediate post-rape care, including emergency contraception.
Two months later, JMM discovered she was pregnant. Fearing blame and rejection from her family, she confided in a friend who took her to an untrained person who performed an unsafe abortion on her.
She suffered complications from the procedure, and sought post-abortion care at a local dispensary, a county referral hospital, a mission hospital, before she finally ended up at Kenyatta National Hospital.
Lack of quality care and significant delays in her transfer from one facility to the next led to her developing chronic kidney illness, to which she succumbed in June last year.
The World Health Organization defines unsafe abortion as a procedure for terminating pregnancies, carried out either by persons lacking the necessary skills or in an environment that does not conform to minimal medical standards or both.
The continued lack of access to safe legal abortion services causes many women and girls in Kenya to resort to illegal, unsafe abortion.
A very large number of patients in women’s wards in Kenyan hospitals are there because of the effects of unsafe abortion. Sadly, the evidence, in this case, showed that even women may not get adequate care.
In Kenya, women and girls from poorer backgrounds are more vulnerable to sexual violence, less able to know how to obtain an abortion (legal or not), less able to pay for it, and less able to pay for treatment, as JMM could not pay for treatment for kidney disease.
LACK OF GUIDANCE
An important tool for avoiding tragedies like JMM’s would be for official guidance, and training, to medical professionals on when abortion is permissible and how to carry it out.
The Kenyan Ministry of Health did have such guidance and training, but in 2013 the Director of Medical Services withdrew the standards and guidelines on reducing maternal deaths and injuries from unsafe abortion.
He withdrew the national training curriculum on provision of safe and legal abortion services, threatened legal and professional sanctions against anyone conducting such training, and banned the use of Medabon, a widely-used combination medicine used for medical abortions.
These actions created a skills gap in the health sector in the handling of abortion and post-abortion care and created confusion amongst women, girls and health service providers on the legal status of abortion.
Consequently, women and girls, including those in situations similar to that of JMM, could not access quality, timely, life-saving abortion and post-abortion care services.
GOING TO COURT
The Federation of Women Lawyers-Kenya and other petitioners, supported by the Center for Reproductive Rights, filed a case in the High Court challenging the actions of the DMS.
They alleged that the DMS’s actions violated JMM’S and other women and girls’ constitutional rights to life, health, dignity, and access to information. Ultimately, they sought redress for JMM’s suffering.
The petitioners brought a good deal of evidence about the impact of the withdrawal of the Guidelines.
In June, the court issued a detailed judgment.
You may have found in the past that comments on the Constitution and abortion have been contradictory and confusing. The court was very clear.
WHEN ABORTION IS POSSIBLE
First, the court emphasised that as a general rule, medical abortion is not permissible, as the Constitution clearly states.
Equally, there are some clear exceptions to this. Most important is the exception if the life or health of the mother is in danger – provided that a trained health professional assesses that this is the case.
In the court’s view, health comprises not only physical but also mental and social well-being.
And a pregnancy that results from rape may constitute a threat to a woman’s mental and psychological health and, therefore, qualify her to access abortion services.
This clarification that rape or defilement may qualify one for abortion is critical to addressing the effects of sexual violence on women and girls.
WHAT DOES 'OPINION OF A TRAINED PROFESSIONAL MEAN'?
The court also explained clearly the provision that talks about “the opinion of a trained health professional,” on this matter. This is not limited to doctors or specialist obstetrician-gynaecologists only: Indeed, it includes nurses, clinical officers, and midwives.
The majority of the first-line health facilities that women and girls attend to seek health services, including reproductive health services, are manned by nurses and clinical officers.
The impact of this judgment is, therefore, that women and girls in rural and marginalised areas can, like their counterparts in urban areas, access life-saving services, offered by health service providers that are reachable by them.
RESPONSIBILITY OF PUBLIC OFFICERS
The court was categorical that by unilaterally and arbitrarily withdrawing the standards and guidelines and the training curriculum on safe legal abortion, which had been developed through participatory processes, the DMS acted outside the scope of his powers.
The court was also categorical that the actions of the DMS left a gap that meant women and girls could not access the right to abortion under the Constitution. Consequently, the court ordered the reinstatement of the guidelines.
Through this decision, the court reaffirmed that public officers play an important role in the realisation of the rights enshrined in the bill of rights and that any policy or other actions that they take must be aimed at enabling access to those rights.
The court did not focus on Article 26(4) (on abortion) alone but added that withdrawal of the guidelines affected the rights of women and girls to the highest attainable standard of health, to non-discrimination, to information, to consumer rights, and to benefit from scientific progress. In fact, it affected the rights of health professionals also to these rights.
Nothing could bring back JMM (who died while the case was in court). The court did award compensation for violation of JMM’s constitutional rights – which would go to her mother.
We praise the judges for diligently applying their minds to the plight of women and girls. As a result of the judgment, there is now indisputable clarity that abortion, where the health of the mother is at risk, is a right, that health is not restricted to physical health, and that risk to health arising from rape or defilement is included.
The court also makes it clear that to enable access to safe abortion, the government should provide accurate, complete and non-prejudicial information on when, where and how women and girls can access abortion services. By withdrawing the Guidelines that did this the Ministry had made Article 26(4) of the Constitution a dead letter.
The court also made the connection between the possibility of safe abortion and achievement of goals on reduction of maternal mortality.
We suggest that in addition, the government should work with civil society and community-based organizations and groups to roll out public awareness programmes aimed at destigmatizing abortion, women and girls who need abortion services, and health service providers who provide those services.
As the judgment also makes it clear that obstetricians, gynaecologists, doctors, nurses, midwives and clinical officers can, if trained, provide safe, legal abortion services in line with the Constitution, the Kenyan government has a duty to offer these professionals training, necessary equipment and the environment to do their work without fear of reprisals.
Public officers are bound by national values and principles of governance. Their actions must always be transparent, and accountable; they must strive to enhance public participation, inclusivity, non-discrimination and protection of marginalised groups in our communities.
The authors are advocates of the High Court of Kenya, working at the Center for Reproductive Rights.