FIDA (Federation of Women Lawyers) is one of four petitioners at the Nairobi High Court, Constitutional Petition no. 266 of 2015. The petition was filed on Monday 29th June in the matter of an alleged contravention of articles including Article 26 of the constitution. There are three respondents: The Attorney general, The Cabinet Secretary Ministry of Health and The Director of Medical Services.
Article 26(4) of the constitution states that abortion is permitted when ‘in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.’ There has been a lot of misinformation as far as this provision is concerned with the belief that it legalizes abortion in all cases. This is untrue as the provision provides for abortion under certain circumstances for the benefit of a woman whose life or health is endangered by a pregnancy.
The Ministry of Health launched the Standard and Guidelines on Reducing Maternal Mortality and Morbidity from Unsafe Abortion in 2012. The guidelines were drawn up with the participation of various stakeholders, including religious leaders, and were a comprehensive guide for health professionals on safe abortion in accordance to Article 26 (4). The guidelines were withdrawn in 2013 without any explanation and a memo sent to both private and public health workers in February 2014 from the Director of Medical Services warning them against offering or attending training on safe abortions. This has left health workers in a limbo not sure if they will be prosecuted for following what is in the constitution when it comes to safe abortion.
An unsafe abortion is a procedure for terminating a pregnancy carried out in an environment that doesn’t conform to medical standards or by a person lacking the required skills or both. A safe abortion is therefore the termination of a pregnancy performed by a health profession in an environment that conforms to medical standards. 120,000 Kenyan women received post abortion care due to complications arising from unsafe abortions in 2012. Kenya has one of the highest abortion rates in the world at 48 abortions per 1000 women of reproductive health.
These statistics are unacceptable and an intervention is necessary. The petition at the High Court is one way as the constitution must be implemented fully to reduce the unsafe abortion numbers. For the regular citizen, sign the petition asking President Kenyatta to tackle unsafe abortion in Kenya. We cannot claim to care for the women of this country and take no action when it comes to their health. We must speak up and push for the implementation of Article 26(4).