KITUO CHA SHERIA BLOG

Introduction

Reproductive Rights according to the Black’s Law Dictionary are a person’s constitutionally protected rights relating to the control of his or her procreative activities specifically the cluster of Civil liberties relating to pregnancy, abortion and sterilization.^[1] Reproductive Health according to the Reproductive Health care Bill has is a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity, in all matters relating to the productive system and to its functions and processes. The Bill also defines reproductive rights to include the right of all individuals to attain the highest standard of sexual and reproductive health and to make informed decisions regarding their reproductive lives from discrimination, coercion or violence;^[2]

Legal Framework on Reproductive Health Rights

It is important to note that we borrow most of our laws on reproductive health rights from International and regional conventions and declarations. These include:

• United Nations Universal Declaration of Human Rights. New York: United Nations, 1948 (Article 2,3,25 and 26)
• UN. International Covenant on Economic, Social and Cultural Rights (ICESCR). New York: United Nations, 1966 (Article 2,10 and 12)
• Convention on the Elimination of all Forms of Discrimination Against Women (Article 11,12 and 14)
• Convention on the Rights of the Child (Articles 2,6 and 24)
• African (Banjul) Charter on Human and Peoples’ Rights (Articles 2,16,18 and 25)
• The African Charter on the Rights and Welfare of the Child (Articles3,5,11,14, 21 and 27)

National Legal Framework

The most supreme law of the country, the Constitution of Kenya 2010 gives provisions on the right to reproductive health under the Bill of Rights. Kenya has also adopted various International and Regional Conventions to its local law and has also gone further to enact specific laws that protect reproductive rights. The issue of adequacy of the law is determined by the existing provisions.

The Constitution of Kenya, 2010

This is the supreme law of Kenya and through its provisions in Articles 2(5) and 2(6) allow that the general rules of international law shall form part of the law of Kenya and that any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution respectively.

Article 26 is on the right to life of every person and provides that the life of a person begins at conception. In sub article 4 it states that 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.

Article 27(3) states that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. This covers the right to equal treatment in the health facilities. Sub article 4 obliges that the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

Article 28 is on the right to one’s dignity being respected and protected which covers matters such as the services offered by health care providers. They ought to preserve the dignity of all without any discrimination.

Article 29 states that every person has the right to freedom and security of the person, which includes the right not to be subjected to torture in any manner, whether physical or psychological^[3]which criminalizes acts such as female genital mutilation and forced or coerced sterilization.

Article 43 is on the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.

The Constitution further singles out health care for specific groups such as children and persons living with disabilities in Article 53 article 54 respectively. The underlying determinants of the right to health are also guaranteed in article 43(1) (b-f) and include right to adequate housing, right to adequate food, clean safe water, social security and to education.

The legal provisions in the Constitution are inadequate when it comes to the protection of reproductive health rights as it is not specific to all the reproductive health rights. The provisions are general and not specific to all the reproductive rights hence necessitating a specific law that focuses solely on reproductive health rights.

HIV/AIDS Control and Prevention Act [4]

The object and purpose of this Act^[5] covers some of the principles such as that of non- discrimination, confidentiality, public awareness and participation, freedom as to consent to testing.

As to the specific provisions, Section 4(1) is on the role of the government to promote public awareness about the causes, modes of transmission, consequences, means of prevention and control of HIV and AIDS through a comprehensive nationwide educational and information campaign conducted by the Government through its various Ministries, Departments, authorities and other agencies while Section 5 insists on HIV and AIDS education in institutions of learning.

Section 13 speaks on the principle of informed consent and voluntary treatment as it prohibits compulsory HIV testing. Section 19 is on the access to health care services to persons with HIV without discrimination on the basis of HIV status and that the government shall, to the maximum of its available resources, take the steps necessary to ensure the access to essential health care services, including the access to essential medicines at affordable prices by persons with HIV or AIDS and those exposed to the risk of HIV infection.

The Children Act [6]

The Children Act protects the rights and freedoms of those who are considered children under the law. This is those who are below the age of 18 years. The relevant sections that are linked to the right to enjoy reproductive rights go from the provision of education to the right of privacy for children, which also influences the provisions for adolescents who fall under the category of children under the law.

Section 4(1) which states that every child shall have an inherent right survival and to life and it shall be the responsibility of me best interests Government and the family to ensure the survival and the development of the child.  This section looks at the best interest of the child.

Section 7 is on the right to education which shall be the responsibility of the Government and the parents and every child shall be entitled to free basic education which shall be compulsory in accordance with Article 28 of the United Nations Convention on the Rights of the Child.

Section 14 criminalizes female circumcision, early marriage or other cultural rites, customs or traditional practices that are likely to negatively affect the child’s life, health, social welfare, dignity or physical or psychological development while Section 15 provides that a child shall be protected from sexual exploitation.

Sexual Offences Act [7]

Section 3 and 4 criminalizes rape and attempted rape respectively. These are violations to the Reproductive health of persons. A person guilty of the rape is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life while the provision of attempted rape is imprisonment for a term which shall not be less than five years which may also be enhanced to imprisonment for life.

Section 8 is on defilement. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

Section 14 is on sex tourism which attracts a 2 million shillings fine for juristic person not less than 10 years imprisonment.

Section 15 provides for the offence of child prostitution and the imprisonment term is not less than 10 yrs.

Section 43 on intentional and unlawful acts. It specifies that these acts may either be coercive, by fraudulent means or through false pretenses. The coercive aspect could be through the use of force, use of threat of harm or through abuse of authority in a way that the victim is inhibited from showing such resistance. All of these acts constitute a crime against human beings with regard to violation of their reproductive rights which is a breach of the law.

Penal Code [8]

Sections 158 to 160 dwell on matters concerned with reproductive health. These sections deal with the termination of pregnancies.

Section 158 is on the liability of the person who has intent to procure a miscarriage and does so by unlawfully administering a poison or noxious drug or uses any other means. Once found guilty is liable to imprisonment for 14 years.

Section 159 makes it an offence for a person to procure their own miscarriage. Such a person is liable to imprisonment for 7 years.

Under Section 160, anyone who supplies or makes available drugs or equipment to procure a miscarriage and has knowledge on the same. Such a person is liable to 3 years imprisonment. These provisions are however restrictive and do not provide for modes and specifications as to safe abortions.

Section 240 can be read as creating a lawful exception. It states that, a person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case. However, the provision offers no guidance as to what circumstances may constitute the preservation of the woman’s life resulting in a lacuna in the legal provisions which may result in different interpretations of this exception.

Provisions of the Reproductive Health Care Bill, 2014

This Bill is yet to be made law in Kenya. It provides for reproductive health issues some of which are the focus of this paper.

It has several objectives:

1. To provide a framework for the protection and advancement of reproductive and health rights for the women.
2. To promote women’s health and safe motherhood.
3. To achieve a rapid and substantial reduction in maternal and child mortality rate.
4. To ensure access to quality and comprehensive provision of health care services to women and children.^[9]

Part II of the Bill is on the access to contraceptives and family planning services. The National and County Governments shall make available contraception and family planning services, including contraceptive options, counseling, information and education according to Section 4.

Section 5 of the Bill states that a person has a right to information from the health care service provider prescribing a contraceptive method on the advantages and disadvantages of a contraceptive method so as to make an informed decision.

Part III gives provisions on gestational surrogacy, safe motherhood, termination of pregnancy, the requirement for consent for minors and those of unsound mind, adequacy of health facilities, confidentiality, child health care, the reproductive health of adolescents and penalties for the offences mentioned in the Bill

Are the reproductive health laws in Kenya adequate?

For Kenya to reach complete achievement of reproductive rights, there is need for adequate law on the same. There are various laws that touch on reproductive health rights in Kenya, the challenge is as to whether these laws are adequate to ensure the realisation of these rights.

The Constitution is not specific as to the protection of reproductive health rights and only provides for an umbrella of rights such as that to dignity, right to freedom and security of a person, the right to the highest attainable standard of health and that 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. These provisions are not specific to reproductive health rights. Such inadequacy leaves too much room for discretion when it comes to enforcement of the right to reproductive health which might lead to non-realization of these rights.

In addition to the inadequate Constitutional provisions, there is also no specific Act on reproductive health care. We currently have a Bill in place, the Reproductive HealthCare Bill of 2014. This Bill has not been passed because it faces a lot of opposition by both religious leaders and legal experts. This means that there exists no extensive binding law that prevents the violation of reproductive health rights. Litigants have to use the existing relevant statutes which in most cases do not give specific provisions on matters of reproductive health. The existing laws on reproductive health rights include; the Penal Code, the HIV/AIDS Control and Prevention Act, The Children Act and the Sexual Offences Act.

However much the existing Bill tries to provide for surrogacy, termination of pregnancy, free emergency treatment, access to reproductive health services by adolescents, HIV prevention informed consent, the prohibition of female genital mutilation and the creation of a board and tribunal on matters of reproductive and child care, it has been met with a lot of opposition by parents, the clerics, the Ministry of Education and the public. The view on this Bill is that it causes moral decay among the adolescents who are at a very vulnerable stage of their lives as well as its inadequacy as to provisions on the complete protection of all reproductive health rights.

The objectives of the proposed Bill are undefined and vague making it easy for enforcers to interpret them differently. Terms such as child mortality and safe motherhood are not defined in the said Bill. The Bill is also faulted for making very little reference to safe motherhood. It merely provides for who are to offer maternal care in Section 16 and doesn’t give the steps on how to encourage safe motherhood. Section 17 also doesn’t include post-natal care services as a service that facilitates safe motherhood of pregnant women which contributes to its inadequacy.

Part IX of the Bill on the reproductive health of adolescents has also elicited much debate and opposition among legal experts, parents and religious leaders. The argument has been that at the age of 10-17, children need to be guided and parents or guardians need to be involved in the child’s life. It is contrary to the provision in Section 19 of the Children Act that provides the right to privacy of a child is subject to parental guidance. It also goes against Constitutional provisions in Article 53 1(e) which provides that every child has the right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not and Sub article 2 which states that a child’s best interests are of paramount importance in every matter concerning the child.

Legal abortion in industrialized nations has emerged as one of the safest procedures in contemporary medical practice, with minimum morbidity and a negligible risk of death.^[10]The restrictive laws we have in Kenya on termination of pregnancies has led to failure of realization of the right that women have to choose when to have children.

Consequences of inadequate laws on reproductive health rights

Inadequacies in the laws results in inadequate enforcement of reproductive health rights which has led to violations such as inadequate reproductive health facilities, poor quality of available health care and increased cases of forced and coerced sterilization of women especially those living with HIV going unpunished.

The restrictive nature of the laws regarding termination of pregnancies has resulted in many challenges. First, procuring an abortion in Kenya, whether safe or unsafe, carries social risks for women, such as stigma and social condemnation as well as legal risks such as fear of arrest and prosecution. Some women are forced to carry an unwanted or unplanned pregnancy to term. This has serious implications for her mental and physical health and her ability to realize other fundamental human rights as this causes a breach to their right to be free from cruel, inhuman, or degrading treatment.

There is also the challenge of accessing post-abortion care which might either be inadequate or too costly to afford. The inadequacy of the legal provisions on abortions in Kenya, has led to lack of clarity concerning clinical officers’ and nurses’ scope of practice in Kenya which has led to most health care providers not offering this service in fear of criminal proceeding being brought against them.^[11]

In conclusion, there is need for increased adoption of laws both at the International and Regional level into the National laws we have on reproductive health rights. Kenya is yet to enact a binding law on reproductive rights and the current Bill has been faced by much opposition as to matters of morality and adequacy in provisions which will be discussed in the next chapter. This in turn means that the realization of these rights is not complete in Kenya because of the inadequate legal provisions.

Published by

Tracy Wachira, Advocate

RCKM, Kituo Cha Sheria

---

[1] Bryan A Garner, Black’s Law Dictionary, 9^th Edition

[2] Reproductive Health Care Bill, 2014 part I

[3] Sub article d of Article 29

[4] No 14 of 2006

[5] Section 3 of no 14 of 2006

[6] No 8 of 2001

[7] No 3 of 2006

[8] CAP 63 of 2007

[9] Section 3 of the Reproductive Health Care Bill, 2014

[10] David Grimes et al, Unsafe abortion: The preventable pandemic, (Lancet, 2006)

[11]In Harm’s Way: The Impact of Kenya’s Restrictive Abortion Law. (Centre for Reproductive Rights, 2010) at 14.