Extending sexual health and reproductive rights through the Court: Analysis and lessons from FIDA – Kenya & Ors v The Attorney General & Ors High Court Petititon No 266 of 2015

Author: Nimrod Muhumuza
Lawyer and LLD candidate, Dullah Omar Institute, University of Western Cape

On 3 December 2013 and 24 February 2014, the Kenyan Director of Medical Services respectively withdrew the 2012 Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya, and the National Training Curriculum for the Management of Unintended, Risky and Unplanned Pregnancies.

In June 2018, JMM, at just 18 years of age, died as a result of a botched abortion in an attempt to terminate a pregnancy resulting from rape. Activists and JMM’s mother petitioned the High Court of Kenya linking the withdrawal of the guidelines to JMM’s death which they argued was a violation of her right to life, and her right to health. It would be first time under the new 2010 Constitution of Kenya that Court would flesh out the application of sexual and reproductive health rights, particularly the right to abortion, to a particular demographic: teenage girls from economically and socially impoverished backgrounds. The Court also had to determine, if it found that JMM’s rights had been violated, the appropriate remedies available to the petitioners.

While the petition was in relation in to JMM’s unfortunate and unnecessary death, the Court found that abortion is permissible, if in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law. The application of these rights would apply to women and girls in Kenya. In determining the what amounted to ‘health,’ the Court provided an expansive definition stating that ‘health’ entails a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity.

1. Facts, arguments and the decision

JMM was defiled at the age of 14. She did not find out that she was pregnant as a result of the assault until after two months when she missed her menstrual cycle and started feeling nauseous. She also did not inform anyone about either the assault or the pregnancy for fear of being blamed and ostracised by her family members. In December, 2014, she was introduced to an individual whom she thought was a doctor. The individual advised JMM that she could terminate the pregnancy. The individual did not examine JMM, nor did he carry out any test before he gave JMM an injection and advised her to return home and wait for the foetus to be expelled the next day. The foetus was not expelled and JMM returned to the pharmacy where the individual who had administered the injection, inserted a metallic object in her vagina and advised her, yet again, to return home and wait for the foetus to be expelled.^[1]

JMM was taken to Kisii Teaching and Referral Hospital where the foetus was removed. However, Kisii Hospital could not treat JMM’s renal failure caused by the heavy bleeding she had suffered from. JMM’s mother, PKM was advised to transfer JMM to a hospital with better facilities. JMM ended up at Kenyatta Hospital. At Kenyatta Hospital, JMM was diagnosed with and treated for septic abortion and hemorrhagic shock and had also developed chronic kidney disease. Following treatment, JMM was detained at the hospital for failure to pay her bills during which she fell ill again and stayed at the hospital for two extra weeks until the bill was waived by the hospital.^[2] JMM died before she could undertake dialysis treatment for kidney failure suffered as a result of excessive bleeding from the attempted, botched abortion.

These facts highlight several issues that plague the guarantee of sexual and reproductive health rights not just for women but for girls. JMM was afraid of informing her immediate family about her condition, she did not know that she was pregnant until two months after she was defiled. The institutions, particularly the hospitals both private and public did not, for the most part have skilled staff or equipment to attend to her condition. Where these were available, such as ambulances, they came at a prohibitive cost for JMM and her mother. JMM’s mother and the petitioners lay blame on the respondents: that in the absence of information on how safe abortions would or could be procured, chances are that many women and adolescent girls would not know how to secure a safe abortion thus imperiling the lives of many women and adolescent girls.^[3]

The major issues of contention could be reduced to four: a) is abortion permitted; b) if so, under what circumstances; c) what amounts to ‘health’ under Article 26(4) of the 2010 Kenyan Constitution; d) who should make the determination under Article 26(4) regarding the conduct of an abortion procedure.

1.1 Petitioners’ arguments

The Petitioners contended that a number of rights had been violated by the Respondents as a result of the withdrawal of the Guidelines and that JMM’s death is linked to the withdrawal of the Guidelines. These included the right to life, the right to reproductive health, the right to equality, and non-discrimination, and the right to dignity. The petitioners argued that there is need for the government to provide information to the public on the circumstances in which abortion is allowed in Kenya and who can offer legal abortion services.  Without information on how or where to access abortion services in cases of sexual violence such as rape or defilement, the respondents jeopardised JMM’s rights and as a result, she and other minors similarly situated, could not access timely and necessary post-rape care including emergency contraceptives and post-exposure prophylaxis. They argued that the Constitution allows abortion where both the physical and psychological health of the mother is endangered by the pregnancy. The Petitioners were of the view that the determination of whether a pregnancy was a health-risk to the mother should be made by a trained health professional which they argued includes nurses, midwives and clinical officers and not necessarily a medical doctor.^[4]

1.2 Respondents’ case

The respondents made the case for another set of victims, that of unborn children, who are protected by the 2010 Constitution. They argued that the reinstatement and implementation of the Guidelines would sound the death knell for these children. They further contended that the documents would open a get-way for ‘abortion on demand.’ They also prayed that Court declare abortion permissible only in the narrowest of circumstances, that is, when the physical health of the mother is in danger. The respondents argued that the term ‘trained health professional’ should be construed to mean only medical doctors.^[5]

1.3 Judgment

Court was cognisant of the social context in which abortion takes place noting that ‘there is a high incidence of sexual violence amongst the poor women and girls. [A] large proportion of those who procure abortions in unsafe environments are from the lower echelons of society.’^[6] The Court noted ‘the reality, which is acknowledged by the Ministry of Health, is that the bulk of those who seek abortion in unsafe environments seek treatment in public health institutions.’^[7]JMM is the face and the name of many girls who die in the process of trying to get rid of unwanted pregnancies, failed by the deliberate actions and omission of the very entity supposed to protect and care for her. JMM’s case was a microcosm of what many children in Kenya endure: unwanted pregnancies as a result of sexual violence which too often leads to death due to unsafe, botched abortions.

1.3.1 Is abortion permitted?

The Court held that the general rule is that abortion is not permitted under Article 26. However, the Court found that Article 26(4) only creates exceptions to the general rule.^[8] Article 26(4) provides circumstances and exceptions under which abortion is permissible. The Court also found that by virtue of Article 26(4), and section 35(3) of the Sexual Offences Act women and girls in Kenya who find themselves pregnant as a result of sexual violence have a right to an abortion if the pregnancy resulting from rape or defilement endangers their lives.^[9] This construction turned on the Court’s interpretation of the right to life and the right to health which includes reproductive health care which the Court found were at the core of the petition. The Court found abortion was permissible in a situation in which emergency treatment is required, or where the life of the mother is in danger. One would, therefore, extrapolate that the Court’s rationale for this holding was the protection of the life and health of the mother.

1.3.2 Under what circumstances?

The judgment was unequivocal that abortion is permissible if in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by written law.^[10] To arrive at this conclusion, the Court had to determine what amounts to ‘emergency treatment’ and what amounts to ‘health’ under Kenyan law. ‘Emergency treatment’ refers to necessary immediate health care that must be administered to prevent death or worsening of a medical situation.’^[11] The Court clarified the question of what amounted to ‘health’ under the Constitution. It provided an expansive and women and girl-child-friendly definition when it stated that health is a state of complete, mental and social well-being and not merely the absence of disease or infirmity.^[12] This definition has to be read disjunctively and only one of these conditions need to be present for one to have the right to an abortion.^[13] While the case before the Court concerned a pregnancy arising from sexual violence, the Court seemed to go further in stating that ‘it is not the cause of the danger that determines whether an abortion is necessary but the effect of the danger.’^[14] In other words, interpreted liberally, a pregnancy that is a result of consensual sexual intercourse that impairs the health, expansively defined, of the mother gives her a right to terminate it subject to the determination of a trained health professional. This particular finding is revolutionary given that health includes the mother’s psychological health.

1.3.3 Who should make the determination that a mother’s life is in danger?

The Court was cognisant of the fact that there is a shortage of qualified medical doctors in many Kenyan facilities.^[15] It was also alive to the fact that many health facilities that are the first port-of-call for women and girls seeking reproductive health services are manned by nurses and clinical officers.^[16] To hold that only qualified medical doctors could make this determination would be detrimental to individuals like JMM who, due to socio-economic reasons are unable to access and/or afford the services of a qualified medical doctor. In other words, ‘It would mean that women in poor rural communities without [the services of qualified medical doctors] would be unable to procure abortions with potentially serious or fatal repercussions for some poor women.’^[17]

1.4 Impact of the decision

The decision is one of a handful of Court cases that make pronouncements on the constitutionality of sexual and reproductive health rights, particularly the right to abortion, on the continent.^[18] The Court’s liberal interpretation of the right to health, and who should make that determination should be lauded given the political, legal and socio-economic circumstances in which the right to health in general, and abortion in particular, is situated. Only three countries on the continent permit abortion without any restrictions.^[19] While holding that abortion remains illegal in Kenya, the Court in the instant case seems to have put Kenya on the right direction in a bid to reduce maternal mortality arising from unsafe abortions. In clarifying the law on abortion in Kenya, the decision holds out hope for women and girls who need these services, as well as health care providers who offer them.^[20] It is also a very useful precedent for advocates and jurists in countries with similar

[1] See paras 1-4 of judgment.

[2] Ibid paras 5-11.

[3] Ibid para 12.

[4] Ibid paras 14-23.

[5] Ibid paras 24-33.

[6] Ibid paras 319-320.

[7] Ibid paras 354-356.

[8] Ibid para 356 of the judgment. Article 26(4) provides that ‘abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.

[9] Ibid paras 397-398 of the judgment.

[10] Ibid paras 397-398, 271.

[11] Section 2 of the Health Act, No 21 of 2017 cited at para 356 of the judgment.

[12] Para 361 of the judgment.

[13] Ibid para 362 of the judgment.

[14] Ibid para 399.

[15] Ibid para 358. Court notes that the use of the term ‘trained health professional’ was a ‘concession to the dearth of qualified medical doctors in many of our health facilities.’

[16] Ibid.

[17] Ibid.

[18] Two decided cases are available and both were heard and determined in South Africa. In 1998, the Christian Lawyers’ Association sought to have the Choice of Termination of Pregnancy Act declared unconstitutional on grounds that it violated a foetus’ right to life under section 11 of the 1996 South Africa Constitution in Christian Lawyers’ Association of South Africa and others v Minister of Health and others 1998 (4) 1113 (T) (10 July 1998).  Court found that a foetus is not a person and does not have a right to life, and that the right to make decisions concerning reproduction, contained in section 12 of the Bill of Rights, protects a woman’s right to decide whether or not to have an abortion. In 2004, Christian Lawyers Association of South Africa v National Minister of Health and others 2004 (10) BCLR 1086 (T), the petitioners challenged the constitutionality of an amendment to the Choice of Termination of Pregnancy Act that allowed minors above the age of 12 to terminate their pregnancies without informing or seeking the consent of their parents. The case was also dismissed. Court found that the Constitution protects the right of a woman to determine the fate of her own pregnancy and that the State may not unduly interfere with a woman’s right to choose whether or not to undergo an abortion.

[19] See Guttmacher Institute ‘Abortion in Africa: Incidence and Trends’ March 2018 accessed at https://www.guttmacher.org/fact-sheet/abortion-africa 22 August 2019.

[20] Centre for Reproductive Rights ‘The Center wins a major victory for abortion rights in Africa’ 12 June 2019 accessed https://reproductiverights.org/story/center-wins-major-victory-abortion-rights-africa at on 27 August 2019.

About the Author:
Nimrod Muhumuza is a lawyer and LLD candidate at the Dullah Omar Institute, University of Western Cape