A Decade of Existence:

Track Report

Revealing Progress, Reversals, and Betrayal of a National Compromise

June, 2020.

Tracking Implementation of Article 26(4)

Policy Work of the Constitution Acknowledgement

This report is a publication of the Center for Reproductive Rights. It was conceptualized by Evelyne Opondo, Senior Regional Director for Africa. Nyasha Chingore-Munazvo supported the drafting and review of initial drafts. Onyema Afulukwe, Senior Counsel for Africa; Atieno Odhiambo, Technical Lead for Africa; and Alejandra Cardenas, Deputy Director, Global Legal Strategies, reviewed and provided editorial comments on the report. The interviews used in this report, as well as writing and analysis, were conducted by Betty Odallo, Advocacy Advisor. The initial drafts were supported by Christine Alai. Alex Nzuki, Legal Assistant for Africa, supported writing and analysis, as well as fact-checking and blue booking support. Katari Sporong supported the design and layout of the publication. Foreword

“… a constitution is ultimately a piece of paper. Although its effectiveness depends in part on internal mechanisms for enforceability, its success depends fundamentally on public attitudes and the commitment to constitutionality.”

— The People's Choice: The Report of the Constitution of Kenya Review Commission, Short Version, September 18, 2002, page 19

A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution . i Abbreviations and Acronyms

CoE Committee of Experts

CKRC Constitution of Kenya Review Commission

DMS Director of Medical Services

KFCB Kenya Film Classification Board

KMPDB Kenya Medical Practitioners and Dentists Board

MoH Ministry of Health

PAC Post-Abortion Care

PSC Parliamentary Select Committee

RHDC Revised Harmonized Draft Constitution

RHN Reproductive Health Network

WHO World Health Organization

ii . A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution. Table of Contents

Acknowledgments ...... In-cover Foreword ...... i Abbreviations and Acronyms ...... ii Recommendations to End Violations in Prosecution of Abortion-Related Offences and Toward Enhanced Legal Protection for Access to Safe Abortion Services As Guaranteed in Article 26(4) of the 2010 Constitution... 2 The Ministry of Health ...... 2 The Director of Public Prosecutions and the National Police Service .. 2 The National Assembly ...... 2 The Chief Justice ...... 2 1. INTRODUCTION ...... 3 Objective of the Report ...... 3 Research Methodology ...... 4 Limitations of the Study ...... 4 2. THE LEGAL FRAMEWORK ...... 5 A. Background: Prohibition of Abortion in Kenya's Pre-2010 Legal Framework...... 5 Pre- 2010 Cases Against Health Professionals ...... 6 B. Constitutional Review Process: The Making of Article 26(4) in the 2010 Constitution ...... 7 Effects of Article 26(4) of the Constitution ...... 7 3. IMPLEMENTATION OF THE CONSTITUTIONAL PROVISIONS ON ACCESS TO SAFE ABORTION ...... 9 A. The Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya...... 9 B. Impact of Withdrawal of the Standards and Guidelines and the Training Curriculum...... 9 4. LEGAL SECTOR IMPLEMENTATION OF ARTICLE 26(4) OF THE CONSTITUTION...... 10 A. Snapshot of Abortion-Related Offences in the Criminal Justice System in Post-2010 Constitutional Era...... 10 Persons Accused of Abortion-Related Offences ...... 10 B. Impact of “Enforcement” of Abortion Laws After 2010 ...... 13 Experiences of Health Providers ...... 13 Experiences of Women and Girls Seeking Abortion Services After 2010 ...... 14 C. Constitutional Cases on Article 26(4) ...... 14 Standards and Guidelines Case ...... 14 Marie Stopes International Kenya Case ...... 15 CONCLUSION ...... 16 ENDNOTES ...... 16

A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution . 1 For the effective implementation of Article 26(4) of the constitution, it is essential to promote women's access to safe abortion services and abortion-related care within the context of all relevant Kenyan Recommendations law. This report makes the following recommendations for these organizations:

The Ministry of Health To end violations in prosecution of abortion- $ Develop robust public education and awareness on lawful and unlawful abortion under Article 26(4) of the constitution, including available services for access to safe abortion. related offences and toward enhanced legal protection $ Ensure that all health facilities and trained health professionals have essential medicines and equipment for safe and legal abortion in accordance with the Constitution of Kenya. for access to safe abortion services as guaranteed in $ Implement policy framework on access to safe abortion services with a guarantee for access and availability across the country and within reach of all women and girls, Article 26(4) of the 2010 regardless of their social or economic status. Constitution The Director of Public Prosecutions and the National Police Service $ Develop capacity of criminal justice actors, including police and prosecutors, on interpretation and application of Article 26(4), and on identifying and addressing gender stereotypes — on pregnancy, termination of pregnancy, and legal abortion — during investigations and prosecutions. Capacity development must be sustained and regular to ensure shift of attitudes. It must also be evidence-based, to address the contextual realities of affected women and girls. $ Direct all prosecutors to ensure that duly trained doctors, nurses, midwives, and clinical officers who provide legal abortion services to women and girls are not harassed through spurious extortion, arrests, and prosecution.

The National Assembly $ Commence the amendment of sections 158, 159, 160, and 240 of the penal code to incorporate key elements provided in Article 26(4) of the constitution, the Sexual Offences Act, and all relevant laws. $ Draft and pass legislation on reproductive health care to offer more clarity regarding legalities, systems, and procedures on Article 26(4).

The Chief Justice Pronounce judicial recognition of the permitted grounds under Article 26(4) of the constitution as an immediate obligation in criminal and civil cases — arguments that can be applied in the present context, even before the necessary legal reforms take place.

2 . A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution.

I. Introduction

BACKGROUND In the years leading up to the 2009-2010 constitutional reform process, an estimated 2,600 women died annually in Kenya from complications of unsafe abortion.1 In the early 2000s, 35% of maternal deaths in Kenya were attributable to unsafe abortion.2 That rate was nearly triple the worldwide average of deaths from unsafe abortions (13%).3 A mobile clinic outreach by Marie Stopes at Rabai hospital . Photo credit: Jonathan Torgovnik / Getty Images. The high maternal mortality rate in Kenya, coupled with the critical national goal of protecting women's health and lives, from induced and spontaneous abortions in the constitutional provisions on abortion informed the constitutional reform debates health facilities (public and private) in the and subsequent laws that provide for on abortion. Public health and human same year, and of these, 119,912 received abortion, such as the Health Act (2017); to rights concerns were both key drivers for care for complications from induced identify potential gaps in implementation; advocates of progressive reforms on abortions.6 The subsequent cost of treating and to offer recommendations to ensure abortion. Indeed, a recognition of this complications arising from unsafe abortion that women who qualify for abortion under public health data on the contribution of in public facilities was estimated to be the law are not prevented from accessing unsafe abortion to maternal deaths and 432.7 million Kenyan shillings (about US$ the same. morbidities contributed to the constitu- 5.1 million) in 2012. tional provisions aimed at protecting and RESEARCH METHODOLOGY promoting women's rights to life and In a further study in 2013, this position was health, in part, by making safe abortion reaffirmed and seen to be an accurate This research is based on desk research and 4 7 key informant interviews with relevant legal under limited circumstances. In a reflection of the reality on the ground. stakeholders, including medical experts in national referendum on August 4, 2010, OBJECTIVE OF THE REPORT the field of sexual and reproductive rights, 67% of voters accepted the draft constitu- health service providers who have tion with the article allowing for abortion It is against this backdrop that this study 5 specifically interacted with law enforce- under certain conditions. examines the implementation of the 2010 ment officers in the context of abortion, and Kenyan constitutional provisions on access Despite the constitutional provisions, the women and girls who have interacted with to legal abortion with an emphasis on the situation of unsafe abortion has not law enforcement officers and courts in the legal sector implementation. In particular, changed much. A study by the Ministry of context of abortion. Health (MoH) and the African Population the study traces the interaction of the police The literature review methodology adopted and Health Research Center estimated that and the courts with cases related to included desktop research on existing nearly a half-million induced abortions abortion, and critically analyzes their reports, laws, policies, international human (464,690) were performed in 2012. interventions for conformity with the legal rights normative frameworks, principles Furthermore, it estimated that 157,762 provisions. The objective of the study is to and standards, Kenyan jurisprudence on women received care for complications understand the status of implementation of

A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution . 3

A total of 29 cases filed in criminal PHOTO courts between 2010 and 2019, with charges relating to provisions of the Members of the Young Mothers, and Breast Feeding women group gather to discuss sexual and reproductive penal code that health, family planning options and self empowerment. Photo credit: Jonathan Torgovnik / Getty Images. prohibit abortion

and related acts women and girls' access to abortion. This February 2019 and sought to understand: was followed by field research that were identified, entailed a manual review of court registers $ Service providers' understanding of the reviewed, and at the various law courts' registries. legal framework on abortion in the 2010 Constitution. A total of 29 cases filed in criminal courts analyzed. between 2010 and 2019, with charges $ The experiences of women, girls, and relating to provisions of the penal code health practitioners as they interacted with that prohibit abortion and related acts law enforcement officers and courts were identified, reviewed, and analyzed. seeking to enforce abortion laws. The court stations records review was LIMITATIONS OF THE STUDY conducted from October 2018 to November 2019 in Makadara and Kibera The study acknowledges that implementation Law Courts in Nairobi County, Limuru of the abortion provisions as per the and Kiambu Law Courts in Kiambu Constitution of Kenya, 2010, requires a County, Kilifi Law Courts in Kilifi multisectoral approach. However, this study County, Nakuru (Central) Law Courts in emphasizes mostly legal sector implementa- Nakuru County, and Machakos (Town) tion of the constitutional provisions. In Law Courts in Machakos County. addition, despite efforts to obtain other key Key informant interviews were Key informant interviews were under- stakeholders' perspectives through consulta- undertaken in three counties in taken in three counties in Kenya (Kiambu, tions and multistakeholder forums, the study Kenya (Kiambu, Nairobi, and Nakuru) Nairobi, and Nakuru) by the Center for was unable to receive input from the MoH Reproductive Rights (hereinafter “the and law enforcement officials on the issues Center”) between October 2017 and raised herein.

4 . A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution.

permits a surgical operation on an unborn from prejudicing the health of the 2. The Legal child as a lawful act, if it was considered deceased,” thereby making it illegal. 10 Framework reasonable to perform, for the preservation The MoH sought to provide guidance to of the woman's life, even though its result medical professionals through the Medical may include an abortion. A. BACKGROUND: PROHIBITION Practitioners and Dentists Board Code of OF ABORTION IN KENYA'S No further guidance was provided within Professional Conduct and Discipline PRE-2010 LEGAL the penal code or any other Kenyan law on (MPDB Code) and the 2004 National FRAMEWORK how the provision would be Guidelines on Medical Management of operationalized. Moreover, the wording of Sexual Violence,11 which provide standards section 240 of the penal code implied that of care that health providers are expected to In contrast to the current only an abortion resulting from the adhere to in the provision of health services. constitutional approach, which performance of a surgical operation on a Although the MoH's guidance helped to fill focuses on protection of the fetus could be permitted, suggesting that a legal and policy vacuum, it nonetheless any other methods of treatment, such as right to health and life of introduced further restrictions, ambiguities, medical abortion, even when applied to and uncertainties in the application of women, legal provisions on preserve a woman's life, could be section 240 of the penal code by health abortion were contained only considered unlawful. professionals. The MPDB Code defined a in the penal code, particularly Preceding section 240 of the penal code skilled professional, for purposes of under “offences against was the 1938 landmark United Kingdom performing an abortion, to include only case, Rex v. Bourne.8 In that case, a medical doctors and gynecologists, morality” in Chapter XV, surgeon was charged, under section 58 of excluding clinical officers and nurses who sections 158 to 160, and the Offences against the Person Act 1861, form the bulk of the health workforce, under “offences connected with unlawfully procuring the abortion, especially in semi-urban and rural areas, and with murder and suicide” in through surgical operation, of a 14-year- who are trained to intervene in cases of post- old girl who was pregnant as a result of abortion care (PAC). Chapter XXI, sections 221 to rape. The jury was directed that it was for The requirement in the code, which 228. the prosecution to prove beyond reason- “strongly advised” medical practitioners to able doubt that the surgical operation was The Kenyan penal code prohibited consult with at least two senior and not performed in good faith for the “unlawful administration” or “unlawful experienced colleagues and obtain their purpose, only, of preserving the life of the supply or procurement” of any substance, opinion in writing before performing an girl. The court and jury were guided by force, or means to “unlawfully… procure abortion, introduced an additional hurdle for and concurred with the surgeon's opinion, the miscarriage of a woman” but failed to medical doctors in settings where there were based on his expert knowledge and include corresponding provisions no senior and/or experienced colleagues to experience. He had not waited until the explicitly indicating circumstances when consult, let alone enough professionals patient was in peril of immediate death but abortion could be considered lawful. within the cadre of medical doctors. The was certain that the pregnancy resulting situation was compounded by the Section 240 of the penal code under from rape would be “most prejudicial” to misperception and misrepresentation among Chapter XXII, which lists “offences the physical and mental health of the medical trainers and providers that the two endangering life and health,” introduced young girl, thereby posing a significant senior colleagues referred to in the code an implied exception to the prohibition 9 threat or risk to her life. The surgeon was should include a gynecologist and psychia- against abortion. It states that “a person is acquitted. trist, who were even more challenging to not criminally responsible for performing access in the majority of health facilities in in good faith and with reasonable care The standard established in Rex v. Bourne Kenya. and skill a surgical operation upon any was subsequently affirmed in a Kenyan person for his benefit, or upon an unborn case, Mehar Singh Bansel v. R (1959). The Further, the code's requirement that medical child for the preservation of the mother's trial court held that the prosecution had doctors could perform the operation if they life, if the performance of the operation is proven that the surgical operation in considered themselves “competent to do so reasonable, having regard to the patient's consideration was performed by the in the absence of a gynecologist” was often state at the time and to all the circum- surgeon “for some purpose other than … misconstrued to mean that abortion stances of the case.” Thus, this provision with a view to saving the life or preventing procedures required specialization in

A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution . 5

gynecology, thereby causing non- Criminal cases involving health profes- 214 of the penal code, which provided that specialized doctors to shy away from sionals, women, and girls alleged to have “a child becomes a person capable of being offering abortion-related services. unlawfully provided or procured abortions killed when it has completely proceeded in a living state from the body of its mother, The 2004 National Guidelines on Medical prior to the enactment of the 2010 whether it has breathed or not, and whether Management of Sexual Violence required constitution reveal that the criminal justice it has an independent circulation or not, and psychiatric evaluation and recommenda- sector adopted a similar stance as the whether the navel-string is severed or not.” tion before women and girls who became health sector — that abortion was unlawful The court ruled that the prosecution had pregnant from rape could access termina- under all circumstances, without due failed to prove a case of murder against Dr. tion-of-pregnancy services. Furthermore, regard to the lawful exceptions recognized Nyamu and the two nurses and found them the majority of health professionals were in section 240 of the penal code and related not guilty.18 not aware of the provisions of the MoH's interpretation by courts and the MoH. guidance on interpretation of lawful Research conducted in Nyeri and Kisumu In another case, Republic v. Jackson Tali, the exceptions to termination of pregnancy, in 2010 revealed that approximately three trial court found Tali, a registered health mostly owing to lack of pre- and post- new cases of procurement of abortion, worker operating a clinic guilty of murder service training and varied interpretations mostly involving women and girls, were and sentenced him to death after a young of the law. This resulted in inconsistencies filed in lower courts every week. 14 Such woman with pregnancy complications died in teaching curricula. 12 cases were mostly initiated when commu- in his care. The trial court determined that there was an unlawful act of procuring an Consequently, despite lawful exceptions to nity members lodged reports, triggering abortion or attempted abortion, causing the prohibition against abortion, particu- investigations by local administration and excessive bleeding and anemia resulting in larly when necessary to preserve the life or police officers, and eventual prosecution. the death, which was enough proof of malice health of an expectant woman, the scope of In most cases, accused persons did not aforethought. The trial court convicted Tali access to corresponding services remained have legal representation; they pleaded despite the lack of any form of medical or ambiguous, unclear, and restrictive. In guilty and were often convicted without 15 forensic evidence to prove that the deceased most cases, health professionals preferred much evidence. The courts rarely had undergone an abortion or that Tali had to err on the side of caution, applying a sentenced the accused to the jail terms performed the abortion, unlawfully, outside conservative approach that considered all provided for in the penal code, and instead the exceptions in section 240 of the penal instances of abortion, except “the most ordered them to serve short-term proba- code. Moreover, the trial court disregarded extreme and indisputable circumstances,” tionary periods and perform community 16 the government pathologist's expert which were the rarest cases, to be service. evidence showing that at the time of the unlawful.13 Pre-2010 Cases Against Health postmortem examination there were no signs Professionals of an attempted abortion. When Tali appealed his conviction, the One such renowned case was Republic v. Court of Appeal took issue with the above John Nyamu & 2 Others.17 Dr. Nyamu, a and with the way the explanation provided well-known gynecologist who provided by the accused during his initial trial was reproductive health services, was arrested dismissed. The Court of Appeal was “far and charged, along with two nurses from satisfied that the offence of murder was working at his clinic, for the alleged proved beyond any reasonable doubt,” murder of two fetuses that were dumped on finding instead that all that was established a highway in Nairobi. The allegation was Two renowned cases are: was “suspicion that the appellant may have that the fetuses were illegally aborted at had a hand in the death of the deceased, but Nyamu's clinic. Although the media and mere suspicion, however strong, is never Republic v. John Nyamu public narrative focused on the provision probative of an offence in our criminal of alleged illegal abortions, Dr. Nyamu and & 2 Others. justice system.”19 the two nurses were charged with two and counts of murder. The court determined While abortion was alleged to be the that besides “wide yawning gaps” in the underlying unlawful act resulting in death in Republic v. Jackson Tali. facts and evidence submitted by the both cases, no attempts were made by the prosecution, fetuses were not capable of courts to determine whether the prosecution being murdered as established in section had proved beyond a reasonable doubt that

6 . A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution.

the alleged abortions had not been B. CONSTITUTIONAL REVIEW $ Recognize the opinion of any trained performed in good faith to preserve the PROCESS: THE MAKING OF health professional, and not only a lives or health of the affected women, a ARTICLE 26(4) IN THE 2010 registered medical practitioner, in standard that was established in the Rex CONSTITUTION determining whether an abortion is and Mehar cases. required. The ambiguity, confusion, and stigma These cases seemed to have been surrounding the circumstances when $ Provide for additional exceptions to the intended to send a clear message to health abortion may be lawfully permitted general prohibition of abortion beyond professionals that there would be no reared its head during Kenya's constitu- circumstances presenting a danger to the reprieve for procuring abortions even tion reform processes leading up to the life of a mother, to include situations when they fall within legal exceptions promulgation of the 2010 constitution. when there is need for emergency established in the penal code; the treatment or the health of the mother is in perceived prohibition against abortion Abortion first emerged as a contentious danger. under all circumstances persisted as if issue in the Constitution of Kenya section 240 of the penal code did not Review Commission (CKRC) Draft $ Leave room for enactment of future exist. Constitution. However, this draft was legislation to permit additional excep- rejected by 57% of the votes cast through tions to the prohibition against abortion. The stance within the criminal justice a national referendum in 2005, primarily sector had a chilling effect on health Groups from the religious sector outright due to differing political views on professionals and led to further limitation opposed the proposed constitution and proposed changes to the executive and and stigmatization of access to safe actively disseminated distorted information legislature.20 The constitutional review abortion, PAC, and other reproductive and and propaganda on the implication of Article process was reignited following the maternal health services associated with 26(4). These groups purported that the widespread violence experienced in pregnancies, including in situations that constitution would permit abortion on Kenya after the 2007 general election. A 22 could result in death. demand. They also asserted that the Committee of Experts (CoE) was recognition of the opinion of any trained To wit, when the charges of murder established in 2009 to “facilitate the health professional in the constitution against the accused in Republic v. John completion of the review of the implied that any person working in a Nyamu & 2 Others failed, the state then 21 Constitution of Kenya.” hospital, including mortuary attendants, attempted to charge them with the offence Sections of the clergy threatened to take would be permitted to perform abortions. 23 of killing an unborn child. Although the legal recourse to amend the Revised charges were withdrawn within one The proposed constitution was subsequently Harmonized Draft Constitution (RHDC) month of being initiated, this was enough accepted with all its provisions, including the that had been developed and to reject it at to instill fear in health professionals who articles on right to life and abortion, by the national referendum if it failed to handle cases of preventable maternal 68.55% of the voters who cast their ballots in recognize that life begins at conception 24 death on a routine basis. a referendum in August 2010. and ends in natural death. The religious The criminal cases further caused sector eventually persuaded the Effects of Article 26(4) of the Constitution apprehension among women and girls Parliamentary Select Committee (PSC), who would otherwise freely seek services which was offering recommendations to The constitution eventually affirmed women for conditions affecting their health the CoE, to reopen debate on the clauses and girls' right to life and health, including during pregnancy or even in cases on the right to life during its review of the reproductive health. While adopting the resulting in unintended, involuntary, or RHDC. position advanced by the religious sector that inevitable abortions or miscarriages; in life begins at conception, the 2010 constitu- The outcome was the insertion of two the latter situations, women and girls tion nonetheless affirms the position new clauses by the PSC into the RHDC faced the threat of being charged with the established in international human rights law stating that “the life of a person begins at offence of killing an unborn child or and medical practice. conception” and that “abortion is not concealing birth. permitted unless, in the opinion of a As such, it did away with the debate over The police, the office of the prosecutor, registered medical practitioner, the life of whether abortion could be lawfully permitted and the judiciary did not implement the mother is in danger.” The CoE in situations affecting the life or health of a public awareness to inform women and adopted the new clauses introduced by woman, besides those requiring emergency girls of the lawful exceptions to the the PSC. Notably, the CoE broadened the treatment, as had been envisaged in section prohibition against abortion. scope of the abortion clause, to: 240 of the penal code.

A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution . 7

Article 43 (1) (a) of the Constitution “Abortion is not permitted unless, in provides that every person has the the opinion of a trained health right to the highest professional, there is need for attainable standard of health, which includes emergency treatment, or the life or the right to health care services, including health of the mother is in danger, or reproductive health if permitted by any other written law.” care.

Constitution of Kenya (2010), Article 26(4). Right to Life

Article 26(4) of the constitution paves lawfully permitted as emergency the way for: treatment or to protect the life or health of an expectant woman. a. Robust, sober, open, and transparent Article 35 – Access state-driven public education, d. Legal reforms, including in the penal code, to align provisions of existing to Information – sensitization, awareness, and discourse among citizens on the laws with Article 26(4) of the provides that: legal parameters for and access to constitution, and provision of clear lawful abortion services, when read guidance and training to law enforce- (1) Every citizen has in line with Article 35 of the ment officers, prosecutors and judicial the right of access to: constitution on access to informa- officers on the nature of civil and/or (a) information held by tion. criminal cases that may be instituted the State; and (b) in relation to Article 26(4), and the b. Provision of safe abortion and other information held by criteria for determining or adjudicat- comprehensive reproductive health another person and ing such cases. services to expectant women as a required for the component of their right to the e. Progressive adjudication and exercise or protection highest attainable standard of health, determination of cases on abortion of any right or by the state, when read with Article and related offences by judicial fundamental freedom. 43 of the constitution. officers in tandem with the provisions of Article 26(4) of the constitution. (2) Every person has c. The development of a legal and the right to the policy framework, including future f. Progress in addressing wanton correction or deletion legislation, regulations, guidelines, harassment and intimidation of of untrue or misleading and standards, and corresponding women, girls, and health professionals information that affects competency-based training, to guide by police officers and in the criminal the person. health professionals in forming an justice system, by clarifying the opinion on circumstances when lawful exceptions to abortion in termination of pregnancy may be Article 26(4).

8 . A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution.

However, on December 3, 2013, the B. Impact of Withdrawal of the 3. Implementation of Director of Medical Services (DMS) at the Standards and Guidelines and the the Constitutional MoH, wrote a letter addressed to the Training Curriculum County Directors of Health and various Provisions on stakeholders, including medical profession- The action of withdrawing the Standards and als and religious bodies, indicating that the Guidelines confused service providers and Access to Safe Standards and Guidelines, and the National left “health care professionals with no Training Curriculum for the Management direction about their responsibilities or Abortion of Unintended, Risky and Unplanned protections when providing legal abortion Pregnancies had been withdrawn, effective services — and numerous women, including 29 those eligible to access abortion services A. The Standards and Guidelines immediately. under the law, with no options other than for Reducing Morbidity & On February 24, 2014, the Office of the unsafe abortion.”32 Public health facilities Mortality from Unsafe Abortion in DMS circulated a memo informing health stopped offering abortion services, while the Kenya care professionals that they would face police resumed harassing and demanding professional and legal sanctions for bribes from reproductive health workers that A study by the MoH, con- undergoing training on safe abortion they accused of performing abortions. practices and the use of the abortion drug ducted in 2012, emphasized The lack of clarity and the palpable fear of the importance of set guide- Medabon, a brand name for a combination of mifepristone and misoprostol. On the prosecution and criminal sanctions caused lines for medical practitioners same date, the DMS also reprimanded the health professionals to err on the side of and acknowledged that the Kenya Obstetrical and Gynecological caution and refrain from providing services Society over research and training on safe altogether, even to women who needed the missing link in reducing mater- 33 abortion and for developing a policy services and were legally eligible. This nal mortality has been the document and training curriculum on safe further resulted in larger numbers of women, absence of technical and abortion.30 especially poor and rural women, going to policy guidelines for preventing health facilities with complications from The letter withdrawing the Standards and unsafe abortions. and managing unsafe abor- Guidelines and the Training Curriculum claimed there was a need for wider The withdrawal of the Standards and tions, to the extent allowed by Guidelines also left a gap in referrals. The 25 stakeholder consultation. This despite the Kenyan law. Ministry's own earlier concession that the Standards and Guidelines provided clear In 2011, the MoH set up a working group development of the Standards and guidance on conscientious objection and that included a wide range of stakeholders, Guidelines had been accomplished with referral in this case, making it clear that including representatives from the medical wide consultation. It is notable that when conscientious objection should not result in a profession, the religious sector, develop- the MoH withdrew the Standards and complete denial of services. The withdrawal Guidelines, its officials said that they of the Standards and Guidelines also ment partners, and civil society to draft 34,35 guidelines to manage all the aspects of would be reintroduced later. However, this reinforced the stigma around abortion, prevention, management of unsafe never happened and it was five years later which has resulted in health professionals abortion, and provision of PAC, using the that a Constitutional Court decision being unwilling to provide abortion openly multisectoral approach in line with the eventually declared the withdrawal of the or exempting themselves from providing 36 constitution.26 The Standards and Standards and Guidelines and National abortion-related care. Abortion stigma also Guidelines on Reducing Mortality & Training Curriculum arbitrary and illegal. 31 harms women in fundamental ways. It results Morbidity from Unsafe Abortion in Kenya As of the date of publication of this report, in the segregation of one reproductive health — which included guidance from 2012 the Ministry has not addressed reinstate- care service from the mainstream health care World Health Organization (WHO) safe ment and implementation of the Standards system, reducing women's ability to obtain abortion guidelines — were published in and Guidelines and has filed a notice to that service. It also encourages incomplete September 2012.27 They were seen as a tool appeal the decision. and false information about abortion and for implementation of Article 26(4) and abortion providers, undermining women's ability to make decisions with informed articulated the responsibility of service 37 providers and the state with regard to the consent. It has also been argued that at the provision of safe abortion. 28 policy level, stigma influences the resources

A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution . 9

available to address unsafe abortion. 38 The four cases were ongoing at the time of the prevailing stigma, compounded by the 4. Legal Sector review. lack of service delivery policies in form of Implementation of In addition, this analysis discusses two the Standards and Guidelines, left women constitutional cases seeking interpretation and girls in a position where they sought Article 26(4) of the of Article 26 of the constitution, one services from unqualified providers, completed and the other ongoing. risking their health. 39 Constitution The training ban potentially had an impact Persons Accused of Abortion-Related This section discusses the legal sector on PAC as training for provision of safe Offences implementation of the constitutional abortion and PAC are not markedly a. Persisting stigma and 40 provisions and presents the experience of different. misperceptions on abortion in the medical providers as well as women and public and criminal justice system Unlike doctors who are taught about safe girls who have interacted with law abortion practices in medical school, other enforcement officials and courts in the Virtually all the reviewed cases originated health professionals, such as nurses and context of abortion. when family members, relatives, clinical officers, who often work in rural neighbors, or community members and low-income areas and who are A. SNAPSHOT OF ABORTION- reported women and girls after the loss of accessible to the community members RELATED OFFENCES IN THE advanced pregnancies. The prosecutions around them, rely on training led by CRIMINAL JUSTICE SYSTEM IN in these cases proceeded mostly based on medical associations and private institu- POST-2010 CONSTITUTIONAL the women and girls admitting they had tions because the MoH has failed to offer ERA committed the alleged offences, as well as such training. The ban on safe abortion on eyewitness testimony and circumstan- The Center conducted a rapid assessment training impacts these professionals. From tial evidence. In the cases of concealing to establish the status of abortion-related the outset, it has been found that gaps still birth, accused women were mostly linked cases filed in various courts between “exist with respect to provider skills to dead fetuses that were found disposed August 2010, when the new constitution despite trainings conducted by different of in hidden locations. In other cases, went into effect, and November 2019. partners,” which in itself suggests “the women were allegedly caught in the act The assessment was carried out through a need for a standard approach to improving of concealing the birth of fetuses. thorough review and analysis of criminal the capacity of providers to offer safe case registers and court files with charges The complaints were triggered by the abortion services including having a on abortion and related offences in six persisting public misperception that all standard training curriculum.” 41 high court stations, in Kibera, Makadara, instances of loss of pregnancy must The Health Act, 2017, envisions that Limuru, Machakos, Kilifi, and Nakuru. amount to criminal conduct. The facts training would be offered when it refers to provided in the charge sheets indicate that The review established that at least 27 persons who are considered eligible to any sign of a terminated pregnancy, dead criminal cases on abortion and related provide services that may include abortion fetus, or unidentified disposed fetus were offences had been filed in five of the services as, “… a nurse, midwife, or a explained only as unlawful. This resulted court stations during the nine-year clinical officer who has been educated in a “public lynch mode,” where affected period.43 The reviewed files include eight and trained to proficiency in the skills women and girls were all accused of cases of attempts to procure abortion by needed to manage pregnancy-related being criminals without investigation of woman with child, one case of supplying complications in women …” the circumstances surrounding the drugs or instruments to procure abortion, terminations of their pregnancies. That Health professionals cannot be expected three cases involving killing of an unborn not only violates their right to be free to feel confident to provide medical child, and 15 cases of concealing birth. from cruel, inhumane, and degrading services for which they are not trained, The majority of the cases involved treatment but also hampers access to any even in emergency situations in which charges of concealing birth, which health or psychosocial support that they such services are required to save life. The constituted 47% of the reviewed files, may require. In one case, a paralegal banning of training altogether exacerbates 42 followed by attempts to procure abortion, testified that she had to call the police and this situation. constituting 22% of the reviewed cases. report an alleged abortion incident to Most of the cases had been concluded and avoid a rowdy crowd that had gathered a determination on sentencing made by around the accused person. 44 This the various courts, while no more than narrative was replicated in every criminal

10 . A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution.

case: Once an accusation had been made default, triggered within criminal judicial repealed by the provisions in the later by the public, the police took over the case proceedings involving offences or conduct legislation.) The penal code also fails to with the aim of obtaining evidence, often that violate the general prohibition against recognize medical abortion as a lawful self-incriminating and circumstantial, to abortion. The second part ought to be means of procuring abortion within the establish the guilt of the accused person. applied to determine whether a procured permitted circumstances. 47 As such, charges Twenty-one of the cases reviewed were abortion falls within the exceptions listed in are still framed and prosecuted based on the filed against women and girls accused of the constitution, to establish if it is lawful or provisions of the penal code as they existed self-induced abortions, concealing birth, unlawful. prior to the enactment of the 2010 constitu- and killing an unborn child. Only six of the Eight of the reviewed cases involved tion. This gap in the legal framework limits cases involved the accused and health charges for the offence of “attempts by a the ability of judicial officers to determine professionals who provided medical skills, woman with child to procure abortion,” whether cases charged as abortion-related instruments, or drugs to procure unlawful contrary to section 159 of the penal code. 45 offences fall within or outside the constitu- abortions. This data suggests that most of Two cases included a charge for the offence tional exceptions. As a result, courts have the accused persons were either unaware of “supplying drugs or instruments to failed to assert the constitutional protection that access to safe abortion is lawfully procure abortion,” contrary to section 160 for women and girls who seek services from permitted to safeguard the life or health of of the penal code.46 health professionals to obtain lawfully an expectant woman or were afraid to seek permitted abortions. Health professionals However, none of the courts adjudicating such services due to fear of being are also left exposed, with no legal frame- the eight reviewed cases explicitly referred stigmatized, reprimanded, or prose- work to seek for protection in instances to or applied Article 26(4) of the constitu- cuted—even in cases where girls con- where they provide lawfully permitted tion to its full extent, either during the ceived as a result of defilement, and when abortions; while they shield themselves from proceedings or in their final determinations. expectant women and girls were suffering prosecutions, women and girls are left This is primarily due to the lack of from varied health problems, including vulnerable to unsubstantiated criminal provisions incorporating elements of Article mental health conditions. charges and convictions. The upshot: The 26(4) in the penal code. While the penal criminal justice system continues to operate b. Application of Article 26(4) of the code includes offences of unlawfully under the notion that abortion is unlawful constitution by courts adjudicating procuring and supplying drugs or instru- and criminalized in all circumstances. cases on abortion and related ments to procure an unlawful abortion, offences there are no corresponding provisions to Notably, four of the reviewed cases included protect women, girls, and health profession- charges of attempted abortion, one against a Article 26(4) of the 2010 constitution can als who fall within the exceptions listed in woman and a second against a girl who had 48 be examined, interpreted, and applied by Article 26(4) of the constitution when sought abortion services from two clinics. courts in two concomitant strands. abortions are lawfully permitted. The other two cases were against health professionals. Yet the courts did not require a. First, it asserts that “abortion The penal code has maintained section 240, the prosecution to adduce evidence to is not permitted”, thereby which provides a limited defense to establish whether an opinion had been invoking the application of abortion-related offences, when abortion is formed by the two health professionals to penal sanctions against performed “as a surgical operation upon an affirm the need for the alleged abortions as procuring abortion. unborn child for the preservation of the emergency treatment or to safeguard the b. Second, it elucidates that the mother's life.” This excludes the broader lives or health of the expectant woman and prohibition against abortion is scope of permitted grounds in the constitu- girl. None of the accused persons provided not absolute and can be tion and Sexual Offences Act, 2006, evidence of an opinion from health permitted under specific including provision of abortion as emer- professionals49 as a defense against the circumstances when, “in the gency treatment or when the health of an charges. opinion of a trained health expectant woman is in danger as well as in professional, there is need for cases of rape or defilement. It further fails c. Stereotyping in abortion and other emergency treatment, or the to recognize the provisions in the Sexual termination-of-pregnancy cases within life or health of the mother is Offences Act, a subsequent legislation that the criminal justice system in danger, or if permitted by addresses the same issue. (If the provisions In addition to the gaps in the legal frame- any other written law.” in a piece of legislation are inconsistent work, the reviewed cases revealed a clear Therefore, the application of the first part with the provisions in earlier legislation, the pattern of stereotyping in the initiation of of Article 26(4) of the constitution is, by earlier legislation may be implied to be charges and prosecution of abortion and

A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution . 11

mischarged as killing an unborn child, with socioeconomic status of the accused women the latter offence holding a potential and girls were provided, they were penalty of life imprisonment, compared primarily used to advise the courts on the Conspicuously, the offences of with a 14-year prison term for abortion. necessity of noncustodial sentences. concealing birth and killing an unborn child were mostly preferred In another case charged as concealing In some cases, medical evidence with in cases where abortion was birth, the probation officer, while propos- findings of physical examinations con- suspected but the available ing a probationary sentence, reported to the ducted on accused persons were presented evidence was insufficient to support court that the accused, a single mother of in police medical forensic forms, a.k.a. P3 forms. Health professionals who performed an abortion-related charge... to six other children, had “previously aborted 51 the examinations were often listed as ensure that accused persons face two years ago.” In two other cases of prosecution witnesses to give evidence of punishment under all suspected concealing birth, the prosecution presented their findings during court proceedings. circumstances, using any means medical evidence, in one case indicating However, such medical evidence merely and alternative offences available that an examination conducted on the confirmed that an accused person had been under the penal code. accused person had confirmed that she had procured an abortion, 52 and in another case expectant and that a fetus was expelled stating that the accused was presented to a from her uterus within the period when the health facility by a police officer for abortion or related offence is alleged to examination on the basis of a report have been committed. The medical alleging that she had aborted a 36-week- evidence did not establish the circumstances term baby.53 surrounding, or the potential causes of, the termination of pregnancies. The evidence related offences. This is particularly In at least nine of the reviewed cases, 54 the failed, altogether, to aid the courts in evident in the types of charges instituted adjudicating courts sentenced the accused determining whether such termination was against accused women and girls, and the persons after they pleaded guilty to the lawful or unlawful. (See R v. Anne Mbethi processes undertaken to initiate and charges. It could be construed from the Kilonzo and R v. Naentie Linnet Nangai).55 determine related charges. The majority of general context of the cases' origins that the reviewed cases were determined and the guilty pleas were motivated by a pre- d. Investigating the function of criminal concluded without full investigation of the existing belief among the accused women sanctions in abortion and related facts and evidence presented in judicial and girls that any termination of preg- offences proceedings. Many times, the testimony of nancy, induced or spontaneous, was accused women and girls was immoral and unlawful. Thus, the guilty The review findings depict the challenges disregarded. pleas conformed to the expected societal experienced in prosecution and proffering Conspicuously, the offences of concealing moral standards and stereotypes, rather criminal sanctions against individuals birth and killing an unborn child were than the nature and content of the offences charged with abortion and related offences. mostly preferred in cases where abortion under which they were charged. Approximately 46% of the reviewed cases was suspected but the available evidence Regardless, the courts almost entirely resulted in discharges, withdrawals, and was insufficient to support an abortion- relied on the accused persons' pleas and acquittals; 30.8%, in noncustodial sen- related charge. These charges were failed to give due attention to other facts tences, including probation and community preferred to ensure that accused persons and evidence, which could have changed service. Only 11.5% resulted in custodial face punishment under all suspected the outcome and proved the cases beyond sentences ranging from one year to 18 circumstances, using any means and reasonable doubt, as required in criminal months' imprisonment. In 11.5% of the alternative offences available under the proceedings, in arriving at their reviewed cases, sentencing was pending at penal code. This is evident in some of the determination. the time of the review. charge sheets, which conflated the charges As was the case in the majority of the Only three of the 27 reviewed cases with alleged acts of abortion. For instance, reviewed cases, eyewitnesses and involving charges of unlawful abortion, in one of the cases, the charge sheet for the complainants were not required to present killing an unborn child, and concealing offence of killing an unborn child stated testimony in court to prove the circum- birth, resulted in custodial sentences that the accused, “by an act of abortion, stances or other elements of the offences. ranging from one year to 18 months' prevented from being born alive a child Further, although probation reports with imprisonment. The offence of concealing 50 who was to be delivered …” In this case, details of the circumstances of the birth is classified as a misdemeanor in the the offence of abortion seems to have been offences, history of previous offences, and penal code and should attract a penalty of

12 . A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution.

either a fine or imprisonment for a period which is a felony that attracts a life B. IMPACT OF “ENFORCEMENT” OF not exceeding six months. However, in sentence, were withdrawn by the ABORTION LAWS AFTER 2010 one of the cases the accused person was prosecution under section 87(a) of the sentenced to one year of imprisonment Criminal Procedure Code. There were no Experiences of Health Providers after she pleaded guilty and evidence of a clear reasons provided for the withdrawal Police appear to use the penal code, the pathology report was produced in court in two of the cases. However, one of the confusion caused by the withdrawal of the confirming that the fetus had been cases was withdrawn after eight prosecu- standards, and general abortion stigma as strangled to conceal the birth. 56 In the tion witnesses failed to appear in court. 59 opportunities to harass, entrap, and extort second case, despite the accused woman's Notably, in two of the 12 cases, accused both service providers and women and testimony that she had suffered a persons separately charged with conceal- girls. The Center interviewed at least six spontaneous miscarriage, she was ing birth were unconditionally discharged health care providers. Patterns of arrest sentenced to one year of imprisonment under section 35(1) of the penal code as with no intent to prosecute, as well as with no indication that any evidence had the courts determined that it was prosecutions not progressing because of a been adduced to rebut her assertion. 57 The “inexpedient to inflict punishment” and lack of evidence after long periods in third case resulted in 18 months' impris- that a probation order would not be courts, were apparent. onment, but the details of the judgment appropriate in either case. were not available in the court registry.58 Rose, a 59-year-old female community In one of these cases the magistrate stated health nurse and midwife working in Twelve of the 27 cases were dismissed or that the trauma caused by the premature Nakuru County; Mwita, a 39-year-old male withdrawn or resulted in discharge or loss of the accused woman's child clinical officer from Kayole, Nairobi; acquittal of the accused persons. This was because of medication she took to treat Elizabeth, a 42-year-old nurse based in mainly due to accused persons and her illness was beyond what “neither a Kiambu County; and Justus, a 58-year-old witnesses failing to appear in court for prison nor a probationary sentence can male registered nurse, also from Kayole, lengthy periods of time, and delays in 60 take away.” In the second case, the Nairobi, were among the providers presentation of substantive evidence and magistrate stated that a woman accused of interviewed. They all had similar stories to witnesses by the prosecution. concealing birth needed assistance rather tell about their interaction with police. Three of the 12 cases involving charges of than punishment as she seemed to be They faced police harassment, were forced the offence of killing an unborn child, experiencing mental health problems, and to pay bribes to police, faced discrimination advised her to seek counseling. 61 due to the stigma surrounding abortion, and The courts provided noncustodial were threatened with criminal prosecution sentences in eight of the cases. 62 In in the course of providing safe and legal several of the cases resulting in abortion services. The other providers, who noncustodial sentences and unconditional requested anonymity, provided similar discharges, judicial officers determined information, and told of police harassing that abortion-related offences go far and extorting several of their colleagues. beyond criminal intent to include other Health service providers have attempted to socioeconomic and cultural factors that take a stand against the actions of law are often not prosecutable in criminal enforcement. In 2014, service providers Police appear to use the penal code, proceedings. convened and shone a spotlight on the the confusion caused by the with- issue. It was reported that “police threats drawal of the standards, and general These findings suggest that post-2010 against patients and medics they accuse of abortion stigma as opportunities to constitutional reform, courts have largely giving 'illegal abortions,' coupled with harass, entrap, and extort both applied noncustodial sentences over reversals in Kenyan policies, are stirring service providers and women and custodial sentences or imprisonment in fears likely to reduce access to safe girls... forced to pay bribes to police, abortion and abortion-related cases before abortions …”63 faced discrimination due to the them. They necessitate an investigation of stigma surrounding abortion, and the function and appropriateness of Jackson Tali had been sentenced to death in were threatened with criminal criminal sanctions in abortion and related the month before the meeting, and police prosecution in the course of providing offences and suggest that it is time to intimidation had increased. Health safe and legal abortion services. review and reform the penal code's professionals highlighted that the police provision criminalizing abortion. were taking advantage of Tali's conviction,

A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution . 13

referring to it when harassing and scaring C. CONSTITUTIONAL CASES ON The court noted that because the state has providers and visiting clinics every Friday ARTICLE 26(4) an obligation under Article 21(1) to to seek bribes. The health professionals “observe, respect, protect, promote and Standards and Guidelines Case were concerned that the “fear provoked by fulfil” the rights guaranteed under the Bill of Rights, and to take legislative, policy, the Tali ruling will make it harder for The only case that has explicitly discussed and other measures, including the setting of women to receive safe abortions or post- Article 26(4) of the constitution is FIDA 64 standards, to achieve the progressive abortion care.” The Reproductive Health Kenya & 3 Others v. Attorney General & 2 realization of the rights guaranteed under Network (RHN), a network of health Others67 (Nairobi High Court Petition No. Article 43; any action that limits or professionals at private and public 266 of 2015). The decision in this case diminishes this right is a violation of the facilities committed to comprehensive was handed down by a five-judge bench constitution (paragraph 334). sexual and reproductive health and rights, on June 12, 2019. advocacy, and service provision, said that The court noted that the government In the judgment, the court sets out the case many in their 467-member network had recognized the challenge posed by unsafe of “JMM,” the second petitioner, whose reported police harassment and that others abortions resulting from lack of a clear defilement, pregnancy, unsafe abortion, had been charged and taken to court. The framework for ensuring that women have failure to receive quality health care, and RHN felt compelled to “work alongside access to safe reproductive health care and ultimate death are representative of the lawyers to defend them, yet their work is post-abortion services and that it had issued 65 plight of many women and girls in Kenya. protected by the constitution.” guidelines in the past but appeared to be The petitioners blamed JMM's predica- intimidated by the objection from other ment on the MoH for withdrawing the Experiences of Women and Girls sectors, particularly from the faith-based Standards and Guidelines for Reducing Seeking Abortion Services After 2010 sectors (paragraph 355). Morbidity & Mortality from Unsafe The Center interviewed seven women and Abortion in Kenya and the National The court concluded that the constitution girls who shared their experiences seeking Training Curriculum in 2012. permits abortion in situations where a abortion after 2010. An analysis of their pregnancy, in the “opinion of a trained In reviewing the evidence, the court experiences reveals two patterns. health professional,” endangers the life or conducted in-depth analysis of the social the mental, psychological, or physical First and foremost is the severe lack of context of unsafe abortions in Kenya, health of the mother (paragraph 262). information and perennial misinformation citing reports by the MoH that acknowl- on abortion, and post-abortion care, that is edged the need for standards, guidelines, The court also implied a repeal of the penal disseminated to women in the community and training (paragraph 314). The court code by the Sexual Offences Act to the by the police and the public. This leads to also recognized that it was called upon to extent of its inconsistency with the later exploitation, harassment, and arrests, and decide on the meaning and implication of statute. The judges observed that it is constitutes a violation of the right of Article 26(4) of the constitution (para- correct that the penal code prohibits access to information on sexual and graph 297). In establishing the intention of abortion. However, it is an Act of reproductive health care services, which in the drafters, the judges relied on the final Parliament that predates the Sexual turn impacts access to the right to health. 66 report of the Committee of Experts on Offences Act, 2006, and the constitution. Accused women and girls, often victims Constitutional Review (paragraph 298). Because the constitution provided a right to abortion under specific circumstances, the of a state that has failed to ensure their The court noted that the right to life and apparent blanket prohibition of abortion access to health services that they require, health are at the core of the petition and under the penal code cannot stand. This is are targeted and treated as criminals. reiterated the protection of the right to because, in accordance with sections 6 and Second, the stigma associated with health under Article 43(1) of the constitu- 7 of the 6th Schedule to the Constitution, procuring abortion is at a critical point. tion (paragraph 335). The judges adopted the provisions of the penal code must be Instead of families seeking medical the WHO's definition of health, which is read with the necessary alterations, services, even in instances where women similar to that contained in the Maputo adaptations, qualifications, and exceptions have sought unsafe abortions and are in Protocol (paragraph 336). The court to bring it into conformity with the dire need of emergency treatment, they further recognized the interlinkage and constitution. While the said section is still resort to reporting the matter to the police, interdependence of rights and in this valid insofar as unlawful abortions are who in turn solicit bribes or charge the regard observed that the right to health is concerned, the same must be read taking women falsely and take them to court. an underlying determinant of the enjoy- into consideration the provisions of the This only fuels further discrimination. ment of other rights (paragraph 337). constitution as well as the Sexual Offences

14 . A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution.

Act. (paragraph 369). The provisions of the First, the KFCB canceled advertisements Sexual Offences Act, which was created that Marie Stopes was running as part of a after the penal code, take precedence communication campaign; The KFCB (paragraph 367). The judges unanimously argued that the advertisements were Some Constitutional Cases agreed that under the constitution and the promoting abortion. A few months later, an on Article 26(4) Sexual Offences Act, while the general rule anti-abortion organization petitioned the is that abortion is prohibited, it is permissi- KMPDB to deregister Marie Stopes for FIDA Kenya & 3 Others v. ble in the circumstances prescribed under providing abortions. Eventually, the Attorney General & 2 Article 26(4), and further as provided under KMPDB, after hearing both sides, ordered section 35(3) of the Sexual Offences Act. Marie Stopes to stop providing any kind of Others. The 2009 Guidelines issued by the Minister abortion services. (Nairobi High Court in accordance with the Sexual Offences Act This case challenges the limitation of Petition No. 266 of 2015) — providing that victims of sexual violence reproductive health information and who became pregnant as a result should be services, including abortion, in Kenya that informed that termination of pregnancy may is perpetuated by public institutions be allowed after rape, and should they opt through the actions of individual officers Network for Adolescents for termination, should be treated with at the helm of those institutions. The case and Youth of Africa and compassion, and referred appropriately — also seeks to hold the institutions and the are also valid. (paragraph 371). individuals personally responsible for the Another v. the Attorney The court concluded that it is clear that the violation of the rights of women and girls General and 4 others. 2012 Standards and Guidelines and the in the pretext of executing nonexistent (Petition 428 of 2018) Training Curriculum were public policy mandates or wrongfully using lawful documents, which were the product of a authority. public participatory process as required The argument the petitioners are making is under the constitution. Their withdrawal, that the ban is contrary to Kenyan citizens' however, did not follow the same process right to access information, because it and was thus arbitrary. The court indicated deprives Kenyan women of information that a decision to withdraw a public policy that they need to be able to exercise and/or document must similarly be subjected to the protect their right to health enshrined in constitutional dictates. The power to the constitution. It further prevents women withdraw cannot therefore be arbitrarily from accessing essential information about exercised even where it exists as this is a how they can seek reproductive services ground to grant a judicial review relief, and PAC as part of their right to health. which is one of the reliefs under Article 23(3) of the constitution (paragraph 382). Furthermore, the Abortion Services Ban is in direct violation of Article 26(4) of the Marie Stopes International Kenya Case constitution as it imposes a blanket ban on all abortion services; it does not allow for Another case that is expected to have an the legal abortions outlined in Article import on Article 26(4) of the constitution is 26(4). In addition to being in direct Petition 428 of 2018 (Network for violation of domestic law, the abortion The Court concluded that it is Adolescents and Youth of Africa and services ban is a violation of Kenya's clear that the 2012 Standards Another v. the Attorney General and 4 international obligations to uphold its and Guidelines and the Training others). This is a case challenging the bans people's human rights. Another effect of Curriculum were public policy by the Kenya Film Classification Board the ban: Pregnant women and girls, who documents, which were the (KFCB), the Kenya Medical Practitioners are lawfully entitled to medical treatment product of a public participatory and Dentists Board (KMPDB), and the in the form of a legal abortion, as specific- process as required under the DMS on Marie Stopes International's ally enshrined in the constitution, are constitution. Their withdrawal, provision of abortion services and informa- being denied this right and are unable to however, did not follow the same tion in Kenya. The case, filed November 30, access safe and legal abortion services. process and was thus arbitrary. 2018, was a result of a series of events.

A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution . 15

ENDNOTES 5. Conclusion Population and Health Research Center, Ministry of Health, Kenya, Ipas, and Guttmacher Institute 2013) available at 1 Maternal mortality in 2005: Estimates The explicit provision in the 2010 https://www.guttmacher.org/sites/default/file developed by WHO, the United Nations constitution permitting abortion in cases s/report_pdf/abortion-in-kenya.pdf Children's Fund (UNICEF), the United of danger to the woman's life or health [hereinafter Incidence and Complications of Nations Population Fund, and the World Unsafe Abortions in Kenya (2012)]. was an important step in clarifying the Bank 25 (2007). Available at legal and policy framework. However, http://whqlibdoc.who.int/publications/2007/ 8 Rex v. Bourne, Central Criminal Court 3 All the expected reduction in unsafe 9789241596213_eng.pdf (according to this E. R. 615 (1938), available at abortions has not materialized, partly, as publication, Kenya has 7,700 maternal https://msu.edu/user/schwenkl/abtrbng/rvbo the findings show, due to the continued deaths per year; according to the Ministry urne.htm. of Health and the Kenya Demographic and application of section 240 of the penal Health Survey 1998, 35% of pregnancy 9 Rex v. Bourne, Central Criminal Court, 3 All code. The inadequate implementation of related mortality is attributable to unsafe E. R. 615 (1938), available at the constitutional provisions has also abortion), quoted in Kenya National https://www.womenslinkworldwide.org/en/fil maintained the stigma and Commission on Human Rights: A report on es/2769/gjo-reinounido-1939-en-pdf.pdf (accessed on July 4, 2019). misperceptions that existed prior to the the Public Inquiry into Violations of Sexual and Reproductive Rights, 47 (2012), 2010 reform, impacting women's access 10 Mehar Singh Bansel v. R, Court of Appeal available at to safe abortion. The effects of both have at Nairobi, Criminal Appeal No. 115 of http://www.knchr.org/Portals/0/Reports/Rep 1959, available at manifested in the health sector where roductive_health_report.pdf); See also the https://www.womenslinkworldwide.org/en/g health care providers may fail to provide Magnitude study by Ministry of Health, ender-justice-observatory/court-rulings- adequate services out of fear of criminal FIDA (K), KMA, and Ipas 2004. database/mehar-singh-bansel-v-r prosecution, as well as in the legal sector, 2 Ministry of Health, Republic of Kenya, (accessed on July 3, 2019). where charges are still based on the Kenya National Post Abortion Care 11 Center for Reproductive Rights, In Harm's provisions of the penal code as they Curriculum for Service Providers: Trainer's Way: The Impact of Kenya's Restrictive existed prior to the enactment of the 2010 Manual 1, 26 (2003) Cited in Center for Abortion Law (2010), page 32 [hereinafter Reproductive Rights Et. Al., In Harm's constitution. As a result, courts have CRR: In Harm's Way (2010)] Way: The Impact of Kenya's Restrictive failed to assert the constitutional Abortion Law (2010), 26. 12 id. at 32-39. protection for women and girls who seek 3 David A. Grimes et al, Unsafe abortion: the 13 id. at 39. services from health professionals to preventable pandemic, 368 THE LANCET 14 Interview with reproductive rights obtain lawfully permitted abortions. 1908, 1910 (November 2006); See also researcher (name withheld), Nairobi, Without penal code reform, clear WHO Preventing Unsafe Abortion available November 5, 2009; Center for at https://www.who.int/news-room/fact- implementing policies and regulations, Reproductive Rights, In Harm's Way: The sheets/detail/preventing-unsafe-abortion and widespread education on the Impact of Kenya's Restrictive Abortion Law, constitution's provisions, the challenges 4 The Constitution of Kenya, 2010, Article 68. 26(4). associated with a lack of clarity sur- 15 Id. rounding Kenya's abortion laws and 5 U.S. Government Accountability Office, 16 CRR: In Harm's Way (2010) supra note 11 policies will remain. Foreign Assistance: Clearer Guidance at 68-69. Needed On Compliance Overseas With Legislation Prohibiting Abortion-Related 17 Republic v John Nyamu & 2 others, High Lobbying (2011), available at Court Criminal Case No. 81 of 2004 [2005] http://www.gao.gov/assets/590/585758.pdf. eKLR , available at http://kenyalaw.org/caselaw/cases/view/11 6 Ministry of Health: The Costs of Treating 246. Unsafe Abortion Complications in Public Without penal code reform, clear Health Facilities in Kenya, 12 18 Id, judgment delivered June 14, 2005. implementing policies and http://aphrc.org/wp- 19 Jackson Namunya Tali v. Republic, content/uploads/2018/02/The-Costs-of- regulations, and widespread Criminal Appeal No. 173 of 2016, judgment Treating-Unsafe-Abortion-Complications- education on the constitution's delivered October 19, 2017. provisions, the challenges in-Public-Health-Facilities-in- Kenya_Final.pdf. 20 Committee of Experts on Constitutional associated with a lack of clarity Review, Final Report, 2010, page 21. surrounding Kenya's abortion 7 Incidence and Complications of Unsafe laws and policies will remain. Abortion in Kenya: Key Findings of a 21 The Constitution of Kenya Review Act, No. National Study (Nairobi, Kenya: African 9 of 2008.

16 . A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution.

22 Id. at 11. http://www.globalcitizenspress.com/africa/ https://www.reproductiverights.org/press- arraigned-in-a-kenyan-court-for-procuring- room/kenyan-women-denied-safe-legal- 23 Grace Maingi, The Kenyan Constitutional an-abortion. abortion-services, and September 28, Reform Process: A Case Study on the Global Day Of Action For Access To Safe Work of FIDA Kenya in Securing 31 Petition 266 of 2015 FIDA Kenya & 3 And Legal AbortionAvailable at Women's Rights, feature article in Others v. Attorney General & 2 Others, 68 http://www.september28.org/wp- Feminist Africa, Issue 15 (2011), 78. http://kenyalaw.org/caselaw/cases/view/17 con- Available at 5490/. tent/uploads/downloads/2015/09/Infog-1- http://www.agi.ac.za/sites/default/files/im 32 Ipas Africa Alliance Making Change factsheet1.pdf. age_tool/images/429/feminist_africa_jou Happen: A Review of Progressive Abortion rnals/archive/15/fa_15_case_study_grac 40 Is Kenya's Approach to Women's Policy Change in Africa (2016), 14. e_maingi.pdf. Reproductive Rights Fair? January 30, Available at https://ipas.azureedge.net/ 2015, http://www.afromum.com/kenyas- 24 Kenya: 2010 Constitutional referendum files/POLCAFE1-MakingChangeHappen approach-womens-reproductive-rights- results by Electoral Institute for PolicyChangeAfrica.pdf. fair/. Sustainable Democracy in Africa 33 Mwende Ngao, Why Do Kenyan Women's http://www.katibainstitute.org/Archives/im 41 Liambila, Wilson, Francis Obare, Edward Lives Matter So Little?, January 26, 2015, ages/Tab%20Introduction/Kenya_%2020 Ikiugu, Vitalis Akora, Jesee Njunguru, http://www.mwendengao.com/2015/01/26/ 10%20Constitutional%20referendum%2 Michael Njuma, Kate Reiss, and Harriet why-do-kenyan-womens-lives-matter-so- 0results.pdf Birungi. 2015. “Availability, use and little/,and Ipas Africa Alliance, Making quality of care for medical abortion 25 Incidence and Complications of Unsafe Change Happen: A Review Of Progressive services in private facilities in Kenya.” Abortions in Kenya 2012 supra note 7. Abortion Policy Change In Africa (2016), 5. Nairobi: Population Council and Marie 26 Id. at iv. 34 Center for Reproductive Rights, Press Stopes International, 7 available at Release, June 29, 2015, Kenyan Women https://www.popcouncil.org/uploads/pdfs/ 27 Standards and Guidelines for Reducing Denied Safe, Legal Abortion Services, 2015STEPUP_MA- Morbidity & Mortality from Unsafe https://www.reproductiverights.org/press- PrivateFacilitiesKenya.pdf, Abortion in Kenya. Nairobi: Kenya room/kenyan-women-denied-safe-legal- Ministry of Medical Services; 2012 42 Id. at vii. abortion-services, and September28.org, available at fact sheet, How does abortion stigma 43 This estimate does not include a handful https://www.safeabortionwomensright.or work, http://www.september28.org/wp- of case files that could not be traced in g/wp- content/uploads/downloads/2015/09/Infog- the court registries, including a few content/uploads/2018/02/Standards- 1-factsheet1.pdf. ongoing cases. Guidelines-for-the-Reduction-of- Morbidity-and-Mortality-from-Unsafe- 35 Ipas Africa Alliance, Making Change 44 R v. Beatrice Achieng Makokha, Criminal Abortion.pdf [September 2012] and Safe Happen: A Review Of Progressive Abortion Case No. 1255/2016, Kibera Law Courts. Abortion: Technical and Policy Guidance Policy Change In Africa (2016), 5. for Health Systems. Geneva: World 45 Which states that “any woman who, 36 Warriner IK and Shah IH, eds., Preventing Health Organization; 2012. being with child, with intent to procure Unsafe Abortion and its Consequences: http://apps.who.int/iris/bitstream/10665/7 her own miscarriage, unlawfully Priorities for Research and Action, 0914/1/9789241548434_eng.pdf. administers to herself any poison or Guttmacher Institute (2006), 127 other noxious thing, or uses any force of 28 Id. at Foreword. http://www.who.int/reproductivehealth/publi any kind, or uses any other means cations/unsafe_abortion/0939253763.pdf, whatever, or permits any such thing or 29 The letter referenced MoH/CIR/2/1/2 was means to be administered or used to her, addressed to the County Directors of 37 Defending Human Rights: Abortion is guilty of a felony and is liable to Health, Chairman of Christian Health Providers facing Threats, Restrictions and imprisonment for seven years.” Association of Kenya, Chief Executive Harassment, 37 available at Officer of Ipas Kenya, the National https://www.reproductiverights.org/sites/crr 46 Which states that “any person who Executive Secretary of Kenya Episcopal .civicactions.net/files/documents/Defendin unlawfully supplies to or procures for any Conference, and the Director of Marie gHumanRights.pdf. person anything whatever, knowing that Stopes Kenya, Nairobi. it is intended to be unlawfully used to 38 Warriner IK and Shah IH, eds., Preventing procure the miscarriage of a woman 30 Bassett L, Naughton J. Africa: Unsafe Abortion and its Consequences: whether she is or is not with child, is Instruments of Oppression. Washington, Priorities for Research and Action, guilty of a felony and is liable to DC: Pulitzer Center on Crisis Reporting; Guttmacher Institute, 2006, 119 imprisonment for three years.” December 3, 2015. http://www.who.int/reproductivehealth/publi https://pulitzercenter.org/reporting/africa- cations/unsafe_abortion/0939253763.pdf, 47 Section 240 of the Penal code (KE) falls instruments-oppression and Shandukani under Chapter XXII that lists “offences 39 Center for Reproductive Rights, Press Omphulusa Mulaudzi, , Arraigned in a endangering life and health.” It states Release, 06/29/2015, Kenyan Women Kenyan Court for Procuring an Abortion, that “a person is not criminally Denied Safe, Legal Abortion Services, April 29, 2016 responsible for performing in good faith

A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution . 17

and with reasonable care and skill a probation sentences for a period ranging surgical operation upon any person for from one to three years, and in one case, his benefit, or upon an unborn child for the court ordered community service for the preservation of the mother's life.” three young girls who were charged with concealing birth. 48 R v. Silvia Naiserian Rorua, Criminal Case Number 112/2016, Limuru High 63 Reuters, Police harass Kenyan patients Court; and R v. Naentie Linnet Nangai, and clinics as abortion battle heats up. Criminal Case No. 5064/2011, Makadara October 31, 2014 Law Courts, Nairobi. https://www.standardmedia.co.ke/health/a rticle/2000140024/police-harass-patients- 49 R v. Randon Amunga Maina, Criminal and-clinics-as-abortion-battle-heats-up. Case Number 113/2016, Limuru High Court; and R v. Joseph Ndung'u, 64 Id. Criminal Case Number 5085/2011, 65 John Muchangi, Nairobi abortion Makadara Law Courts, Nairobi. providers protest police harassment, 50 R v. John Onsongo Nyangweso and November 6, 2017. https://www.the- Jane Njambi, Criminal Case No. star.co.ke/news/2017/11/06/nairobi- 3225/2014, Kibera Law Courts. abortion-providers-protest-police- harassment_c1664830. 51 R v. Joan Mukiuhi Njuguna, Criminal Case No. 135/17, Limuru Law Courts. 66 The Constitution of Kenya, 2010, Article 43(1). 52 R v. Carester Nyaboke, Criminal Case No. 511/2018, Nakuru Law Courts. 67 Constitutional Court of Kenya, Petition 266 of 2015 FIDA Kenya & 3 Others v. 53 R v. Virginia Njeri, Criminal Case No. Attorney General & 2 Others 789/2016, Kibera Law Courts. http://kenyalaw.org/caselaw/cases/view/1 54 These cases involve charges of attempts 75490/. to procure abortion, supplying drugs or instruments to procure unlawful abortion, killing unborn child and concealing birth.

55 R v. Anne Mbethi Kilonzo and R v. Naentie Linnet Nangai, Criminal Case No. 5064/2011, Makadara Law Courts, Nairobi.

56 R v. Nancy Wanjiku Muigai, Criminal Case Number 541/2012, Limuru Law Courts.

57 R v. Grace Wambui Wanjiku, Criminal Case Number 1531/2012, Nakuru Law Courts.

58 R v. Mary Wanjiku Mathuko, Criminal Case Number 3403/2010, Kibera Law Courts.

59 R v. John Onsongo Nyangweso & Jane Njambi, Criminal Case Number 3225/2014, Kibera Law Courts.

60 R v. Hannah Njeri Gathaku, Criminal Case Number 308/2018, Limuru Law Courts.

61 R v. Ruth Ngendo Wangari, Criminal Case Number 2049/2013, Nakuru Law Courts.

62 In seven cases, the courts ordered

18 . A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution. PHOTO CREDIT

Front Cover: Medical clinic in Kenya, dealing with Maternal, Neonatal and Child health. Photo credit: Katari Sporrong.

Right: Young woman going through a family planning session at Mariakani hospital in a rural coastal region in Kenya. Photo credit:Jonathan Torgovnik/Getty Images.

PHOTO DISCLAIMER

The photographs used herein are for illustrative purposes only; they do not imply any particular attitudes, behaviors, or actions on the part of any person who appears in the photographs. None of the people pictured are clients of the Center.

A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution, Revealing Progress, Reversals, and Betrayal of a National Compromise © 2020 Center for Reproductive Rights Printed in Nairobi, Kenya Any part of this report may be copied, translated, or adapted with permission from the author, provided that the parts Center for Reproductive Rights copied are distributed free or at cost Fourth Floor, Pinetree off Ngong (not for profit) and the Center for Road Kamburu Drive Kindaruma Reproductive Rights is acknowledged as the author. Any commercial Road Junction, P.O. Box 48136- reproduction requires prior written 00100, Nairobi, Kenya. permission from the author. The Center Tel: +254 20 251 8361 / 63. for Reproductive Rights would appreciate receiving a copy of any [email protected] materials in which information from this www.reproductiverights.org report is used.