Part 2: The Reproductive Healthcare Bill, 2019

August 21, 2020 - 5 Minutes Read - By Abigael Ndanu

The question of right to terminate a pregnancy: Is it time to recognize a woman’s freedom to choose?

As highlighted in last week’s feature, a pertinent issue that has come up in the debate of the proposed Reproductive Health Bill, 2019 is whether or not is introduces or proposes to legalise abortion in Kenya.
This debate is brought about by Part V of the proposed law which provides for Termination of Pregnancy. Specifically, Clause 26 (1) provides as follows:
A pregnancy may be terminated by a trained health professional where in the opinion of the trained health professional—
a. there is need for emergency treatment;
b. the pregnancy would endanger the life or health of the mother; or
c. there exists a substantial risk that the foetus would suffer from a severe physical or mental abnormality that is incompatible with life outside the womb.
Sub-clauses (a) and (b) are not as contentious as (c) as similar provisions are provided in the Constitution in Article 26 (4) which states:

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, or if permitted by any other written law. Sub-clause (1) (c) has been a bone of contention with activists drawn from the Persons living with Disability (PWDs) quota citing that such a provision could contribute to rising numbers of abortion of foetus detected to have abnormalities or disability propagating further discrimination and stigmatization.

The effect of Article 26 (4) of the Constitution, though highly contested in the pre-referendum phase by the Catholic Church, was to repeal previous restrictive abortion laws and policies of Kenya that existed before its promulgation, thus Sections 158-160 and 214 of the Penal Code which criminalized the attempt to procure a miscarriage by a third party (S. 158), the attempt to procure a miscarriage by the women herself (159) and the supply of drugs to procure a miscarriage (160). These carried a heavy penalty of 14 years, 7 years and 3 years in prison respectively. However surgical abortions when the procedure is performed for the preservation of the mother’s life was exempted and therefore legal (S. 240). Further, the Medical Practitioners and Dentist Board’s Code of Professional Conduct and Discipline (5th Edition of 2003) took cognizance that thus did not permit termination of pregnancy “on demand” and severe penalties were to be meted out to members of the profession.

Noteworthy, although Kenya’s Constitution provided an avenue for further discussion and to some extent relaxed the laws regarding abortion, the move is still not in line with international obligations that require that women are empowered and have the self determination to decide when, how and with whom to get children.
On 8th October 2010, Kenya ratified the Maputo protocol but again, in an unprecedented move, entered a reservation on Article 14 (2) (c) disallowing legal abortion in cases of rape and defilement and where the life and health of the mother and foetus are in danger. This was inconsistent with Article 26(4) of the Constitution 2010.

However, since then, jurisprudence has been developed in case law following a decision of the High Court in June 2019 delivered by Justices Mumbi Ngugi, George Odunga, Aggrey Muchelule, John Mativo and Lydia Achode who ruled that pregnancies resulting from rape can be terminated with the help of an expert. In addition, guidelines on how to procure safe abortion were reinstated after the bench nullified a February 2014 memo by MOH withdrawing them after stakeholders purportedly failed to agree on contentious issues.

Thus, premised on the foregoing, the proposed Bill does not in any way contravene the law but rather seeks to operationalize the provisions of the Constitution and anchors jurisprudence. Among the concerns/ fears that have been propounded are that the Bill seeks to foster a foreign agenda, which insists that preventing unintended pregnancies and unsafe abortions require States to adopt policy measures that allow, among other things, access to contraceptives, abortion services, and comprehensive sexuality education, a position taken by the Prelates in Kenya.

They propose that opposed to a policy/ legislative measure, a different approach is adopted that is more focusing on how to prevent the pregnancies from happening through “positive means such as mentorship and behavior change programs, life skills and human sexuality programs.” Whereas some may argue that this should be more of a medical discussion and not a religious debate, fact is that the church holds a lot of sway in the country and can thus influence policy.

As the debate rages on country wide one thing continues to be overlooked, that is, Shouldn’t it be a woman’s decision to make?

Unsafe abortion in Kenya is among the highest in Africa. Maternal mortality is high at about 6,300 deaths per year, 17% of them from complications of unsafe abortion. These figures may have since increased following the increasing number of teenage pregnancies since the outbreak of the Covid-19 pandemic which has caused schools to shut down for almost 9 months.

Beyond the human cost to unsafe abortions, in a 2012 study, it was estimated that the Government spends an estimated $5.1 million treating women who had developed complications from unsafe abortions.
If allowed/ provided for, women would have access to affordable and safe treatment while saving the Government millions of dollars.

This Bill has brought to the fore major issues related to women’s reproductive rights and health and with regards to abortion highlighted concerns such as stigma, lack of information on safe abortion, increased pressure to turn to unqualified persons in unsafe environments. Additionally, from a service provided perspective debates have highlighted the ignorance of the law as well as the conversations with regards to standards and quality of care for both abortion and post abortion care patients.

Whether or not Part V of the Bill is retained, fact remains that restrictive laws and lack of policies and programmes on safe abortion have significantly contributed to the high maternal mortality and morbidity in Kenya.

Women continue to die or suffer disability due to preventable causes. These factors prevail against the backdrop of the myriad international and regional human rights frameworks and commitments that Kenya is a party to and the national legal, policy and institutional frameworks that are aimed at enhancing maternal health.

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