A policy storm is brewing at just the right time. Last week, women and youth activists took to Nairobi streets to stop the launch of the Health Ministry’s Reproductive Health Policy 2020-2030. Two days later, Malindi High Court Judge Reuben Nyakundi delivered an iconic ruling in favour of women’s right to abortion. Coming five months before the election of 47+1 administrations, parties, political aspirants, and the public need to pay attention.
The nation has fundamentally changed since the Health Ministry first drafted the Reproductive Health Policy (2020-2030) in 2018. For two solid years, COVID-19 subjected women and girls to a double-barrelled threat. Sexual and gender-based violence increased five-fold alongside rising living costs, joblessness, and economic distress. Primary health services were diverted from reproductive health to respond to the pandemic and family planning services access plummeted nationally.
National Council for Population and Development research astonishingly suggests that probably 1 in 4 girls aged ten to nineteen years are now balancing a pregnancy or child-care. The right to choose, health rights information and safe public services is central to reducing these statistics and advancing sexual and reproductive health rights for all Kenyan women and girls.
Justice Nyakundi’s 24 March judgement vividly exposes the dangers of denialism, incoherent policies, and conflicting laws. Two years ago, police officers arrested a girl seeking an abortion and Salim Mohammed, the trained clinician who safely cared for her. Given the controversy around abortion, the clarity of his judgement is iconic jurisprudence. The ruling noted that under the constitution (26.4), abortion is legal under exceptional circumstances by a qualified practitioner. By arresting, detaining, and interrogating the sixteen-year-old without legal representation and confiscating her health information without her consent, the state had violated both patient and provider’s constitutional rights. Dismissing the case against them, Judge Nyakundi further directed Parliament to enact abortion law and policies in line with the constitution.
It is cases like this that catalysed hundreds of women and youth activists under the banners of twenty civic organisations and associations to march to Afya House and demand the public participate in the writing of the new Reproductive Health Policy. The petitioners make three basic points. The Ministry has failed to make the policy available on their website or involve women and girls despite requests to do so. The policy does not address unsafe abortion as a major driver of maternal mortality and morbidity or provide safe abortion guidelines for trained medical personnel. Thirdly, by classifying sex for under 21-year-olds as a harmful reproductive health practice, the policy contradicts Article 43(1) of the constitution and emerging county policies that allow minors to consent to their own reproductive health services.
Studying the draft policy closely, the constitutional requirement of public participation was not met. While the Council of Governors, Health Ministry, Kenya Medical Association and Kenya Obstetrics and Gynecology society officials are listed as being consulted, key women, girls and provider organisations and associations are missing. Notably, the Council of Governors has since withdrawn support and asked for further consultation. The policy could also incorporate new global WHO guidelines on lifesaving care and safe abortion released this year.
Rushing such an important policy without public buy-in in the last five months of the 47+1 administrations is ill advised. The Ministry risks squandering the opportunity to re-imagine with women, county governments, and health-practitioners, the future of sexual and reproductive healthcare. It is also disappointing that very few political aspirants and parties are yet to make this issue central to their policy manifestos and campaigns
If there is one lesson from the spiking numbers of unwanted pregnancies, it must be that turning a blind eye to the high levels of sexual violence or criminalizing teenage sex doesn’t work. Leaving citizens to browse “safe contraception”, “safe abortion services in Kenya” online or exit family planning services is not good enough. Present and future national and county policymakers must consider how to provide comprehensive sex education, safe abortion and post abortion care services for those that require them.
This opinion was also published in the Saturday Standard 2 April 2022
Four days after this article was published, the Health Ministry wisely abandoned the launch to allow for more input on the policy.
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