Keep Wanjiku Safe: The Right to Safe Abortions Must be Upheld

Today marks the beginning of the pursuit of justice. Nairobi High Court, Constitutional Petition no. 266 of 2015, is a petition that has been filed today at the High Court in the matter of an alleged contravention of articles including Article 26 of the constitution. There are four petitioners: Federation of Women Lawyers (FIDA-Kenya), JMM through PKM, Ruth Mumbi Meshack and Victoria Atieno Awuor.  According to the petition, the 1st Petitioner is an organization committed to the creation of a society that respects and upholds women’s rights, the 2nd Petitioner brings this suit on behalf of the minor JMM, an adolescent girl who suffers from a chronic health problem following an unsafe abortion after defilement, as her mother and next friend.while the 3rd and 4th Petitioners are community human rights mobilizers. There are three respondents: The Attorney General, The Cabinet Secretary Ministry of Health and The Director of Medical Services.

The nature of violations caused or threatened as listed in the petition are: Violation to the right to the highest attainable standard of health, violation of the right to non discrimination, violation to the right to life, integrity and security of person, violation of the right to freedom from cruel, inhuman and degrading treatment, violation to the right to information, violation of consumer rights, violation of the right to benefit from scientific progress, violation of health care workers’ rights to expression, conscience, association, assembly and information, violation of health care workers’, women’s and adolescent girls’ equal protection of the law, violation of the right to fair administrative action and limitation of fundamental rights.

Kenya has one of the highest abortion rates in the world at 48 abortions per 1000 women of reproductive age. Nearly 120,000 Kenyan women received post abortion care due to complications arising from unsafe abortions in 2012. An unsafe abortion is a procedure for terminating a pregnancy carried out by persons lacking the required skills or in an environment that doesn’t conform to medical standards, or both. A safe abortion is therefore one performed by a health professional in an environment that conforms to medical standards. These numbers are astounding and speak to a serious issue that we can no longer ignore.

Article 26(4) of the constitution states, abortion is permitted when ‘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.’ This was a contentious issue during the referendum as there was a lot of misinformation with Kenyans being told that this legalized abortion in all cases. On the contrary, abortion is only legal under certain circumstances and this provision is for the benefit of a woman whose life or health is endangered by a pregnancy.

In 2012, the Ministry of Health launched the Standard and Guidelines on Reducing Maternal Mortality and Morbidity from Unsafe Abortion. The guidelines were a comprehensive guide to health professionals on safe abortions in accordance with Article 26 and were drawn up with the participation of various stakeholders. The guidelines were withdrawn in December 2013 and a memo issued to health workers by the Director of Medical Services in February 2014 to cease training on safe abortion care and the use of the drug Medabon for medical abortion. The withdrawal of the guidelines has left health professionals in a limbo. Prior to the new constitution, doctors and other health professionals were constantly harassed by police officers on performing of safe abortions even if the health of the mother warranted it. The suspension of the guidelines leaves health workers with the same uncertainty. Will they be prosecuted for carrying out safe abortions as per the constitution?

The reason behind the withdrawal of the guidelines by the Director of Medical Services was not given and was done without consultations. The consequences of this withdrawal are health workers who cannot do their job without intimidation and fear and women with pregnancy complications who cannot receive the lifesaving help they need. It goes without saying that the women who are likely to not receive safe abortion care are women from low income areas. It is unacceptable that the most vulnerable of our populace is being unduly punished. The constitution must be upheld. Article 26(4) is clear on the parameters in which a safe abortion can be performed.

The lack of implementation of this crucial article cannot be left unchallenged. It is a disservice to women who depend on government implementation of the constitution to enjoy their rights. We, in good conscience, cannot stand by and allow this injustice to continue. Follow the conversation on Twitter on #KeepWanjikuSafe and sign the petition asking President Kenyatta to tackle unsafe abortion in Kenya and direct the full implementation of Article 26(4).