Challenging Institutional Stigma Against Care in Kenya

Network for Adolescent and Youth of Africa (NAYA- Kenya) & Another V. Attor- ney General & 4 Others. Nairobi High Court Petition No. 428 of 2018

On November 30, 2018, the Center for , ap- pearing for NAYA-Kenya and Jackline Karanja filed a case against the Ministry of Health, the Kenya Medical Practitioners and Dentists Board, (KMPDB) and Kenya Film and Classification Board (KFCB). The three public institutions had banned Marie Stopes Kenya (MSK) from providing information to adolescents and youth on the magnitude and impact of in Kenya — including where to get help from — through radio and online platforms. They also banned MSK from providing any kind of abortion care even where legal, including post abortion care, despite the same being emergency treatment under the right to health.

BACKGROUND Article 26 (4) of the Constitution access affordable SRH services that provides the right to access abor- meet their needs. MSK implements a tion when in the opinion of a Since 1985, Marie Stopes Kenya (MSK) service delivery approach that is free trained health professional, there is has been providing high quality afforda- from stigma, judgement, and discrimi- need for emergency treatment, or ble sexual and reproductive health nation regardless of age, location, the life or health of the pregnant (SRH) services for all people across background, marital, or economic sta- woman is in danger. Unsafe abor- Kenya. As one of the leading special- tus. MSK provides all modern methods tion is among the 5 leading causes ized SRH providers in Kenya, MSK of contraception and comprehensive of maternal deaths and injuries in works with the Government of Kenya post-abortion care (CPAC), ante- and Kenya. and other stakeholders to ensure the post-natal care, sexual health counsel- poorest and hardest to reach clients can ling, gynecological check-ups, cervical

cancer screening and treatment, and not based on the actual complaint or any testing and treatment of HIV and other material evidence presented before it as

sexually transmitted infections. In 2018, the complaint to KMPDB was on the In Kenya, an estimated 464,690 over 1,200,000 clients were reached legality of the campaign whereas the de- induced occurred in through MSK's service delivery points cision made by the KMPDB did not the year 2012. spread across the country. address the campaign but proceeded to In the same year, an estimated Beginning August 22, 2018, MSK, be- stop all kinds of abortion services offered 157,762 women received care gan a 9-week public awareness by MSK. for complications of induced and campaign on Comprehensive Reproduc- spontaneous abortions in health tive Health and information together facilities. with Radio Africa Group of media WHAT THIS CASE IS ABOUT Severe complications of unsafe houses. The objective of the campaign abortions were most common was to provide adolescents and youth In Kenya, an estimated 464,690 induced among women aged 19 years or with relevant SRH information in ad- abortions occurred in 2012. In the same younger ... making it imperative dressing the rising morbidity and year, an estimated 157,762 women re- for any responsible government mortality from unsafe abortion in Ken- ceived care for complications of induced to develop programs that target ya. The campaign highlighted the and spontaneous abortions in health facili- this category of persons includ- statistics on unsafe abortions in Kenya, ties. Severe complications of unsafe ing through information that the dangers of unsafe abortion, abortion abortions were most common among reduces stigma and prevents stigma and discrimination of women women aged 19 years or younger. Young unsafe abortions. and girls who have undergone unsafe women and girls comprised about half of abortion. It directed members of the the patients treated for complications of public in need of pregnancy crisis coun- unsafe abortions in 2012¹ making it imper- selling to call Marie Stopes-Kenya ative for any responsible government to customer care helpline. develop programs that target this category On September 11, 2018 , the KFCB of persons including through information banned the Marie Stopes campaign that reduces stigma and prevents unsafe claiming it 'clearly promotes abortion abortions. contrary to Article 26(4) of the This case challenges the blanket attempts Constitution' and on November 5, 2018 to limit a constitutionally guaranteed health the KMPDB directed Marie Stopes to care service through back door channels immediately cease offering any form of without justifiable grounds. It confronts abortion services in all its facilities efforts to restrict reproductive health in- within Kenya on grounds that the adver- formation and services including legal tisements were erroneous and not abortion in Kenya that is perpetuated by approved by the Board. Shortly thereaf- public institutions through the actions of ter, on November 20, 2018, the Director individual officers at the helm of those of Medical Services (DMS,) further institutions based on their personal convic- banned MSK from providing any form tions. It seeks to hold the institutions and of post abortion care in any of its facili- the individuals personally responsible for ties within the country. MSK was also the violation of the rights of women and ordered to pull down all reproductive girls in the pretext of executing nonexistent health information on its website which mandates or wrongfully using lawful au- 1. African Population and Health Research the Board considered to be in violation thority. It confronts practices that Centre, Ministry of Health [Kenya], Ipas, of the guidelines set by the Medical perpetuate the chilling effect created by and Guttmacher Institute. 2013. Inci- Practitioners rules on advertisement. dence and Complications of Unsafe unreasonable restrictions on access to abor- Abortion in Kenya: Key Findings of a Na- The ban against MSK was arbitrary and tion information and services which deters tional Study. Nairobi, Kenya, African MSK was never given a fair hearing. women and girls from seeking evidence- Population and Health Research Center. Equally, the finding of the KMPDB was based care.

WHAT THIS CASE IS NOT ABOUT • Right to equality & freedom from discrimination and the right to This case is about the critical role that equal protection from the law information plays as a gateway right for • Right to life the rights to health, dignity, life and • Right to freedom from torture and equality and the core mandate of making cruel, inhuman, or degrading treat- health care services accessible without ment stigma or consideration of extraneous • Right to human dignity factors. The case asks the court to: This case does not seek to introduce any new ground for access to abortion but for a) Declare that decisions of the DMS, full implementation of article 26 (4) of KFCB and KMPDB were unconstitu- the Constitution and stopping public insti- tional and violated the rights of tutions from wrongfully limiting the women and girls of reproductive age. rights of citizens protected in the consti- b) Give an order quashing the decisions tution without justifiable grounds or due of the DMS, KFCB AND KMPDB to process. ban MSK from providing abortion in- formation and services.

c) Give an Order barring all government WHAT THIS CASE IS ASKING THE agencies from interfering with provi- COURT TO DO sion of accurate information and lawful healthcare services and an or- der restricting government agency Decisions like the ones rendered by from issuing misleading information KMPDB and KFCB undermine women's on Abortion. constitutional rights by denying countless women, including survivors, access d) Give an Order compelling the Minis- to information and safe, legal abortion try of Health to disclose information even under circumstances permitted by proactively and fully on abortion and the Kenyan Constitution. It stigmatizes make available and accessible infor- post abortion care which is emergency mation on legal and safe abortion that care which Ministry of Health has been is accurate, transparent uncensored. encouraging as part of strategies for ad- dressing the high incidents of maternal deaths and injuries from unsafe abor- NOTE: tions. The bans not only deny women life- Following the filing of the case and advo- saving reproductive health services but cacy from reproductive rights also constitute several unjustifiable viola- organizations, the Minister for Health tions of fundamental human rights withdrew the ban on provision of post protected under the Kenyan Constitution, abortion care on the 20th December 2018. including: The bans not only deny women life- saving reproductive health services • Right to a fair & administrative action but also constitute several unjustifi- • Right to access information able violations of fundamental human rights protected under the • Right to the freedom of expression Kenyan Constitution. • Right to health

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