Nairobi — Fatuma is a 24 year old girl from Korogocho, an informal settlement in Nairobi. She died in December 2021, from complications arising from an unsafe abortion. Her friend and a few of her neighbors found her bleeding profusely and unable to move. They rushed her to the hospital. Unfortunately, she died before she could see the doctor.
Unfortunately, Fatuma’s story is common for girls and women in Kenya. In fact, at least 7 of them die every day from complications arising from unsafe abortion. Worse still, is that with current trends – where 700 girls between the ages of 10 and 19 are getting pregnant daily; the harrowing statistics on abortions are likely to be worse. If Fatuma knew where she could access safe abortion services, she would not have died.
The Constitution operates a robust Bill of Rights that are legally binding – and not mere suggestions. In addition to expanding the right to safe abortion in Article 26(4), it explicitly provides for the right to the highest attainable standard of reproductive health in Article 43
Despite the Constitution of Kenya providing for three instances where safe abortion is permitted, the right to choose if and when to become pregnant as well as terminate pregnancies continues to be one of the most contested debates across the world. In Kenya, there has been considerable progress in promoting reproductive justice with the judicial arm of the government advancing the law. An example is the Malindi case (Petition E009 of 2020) that re-affirmed that abortion is a fundamental right as provided for in the Constitution.
Additionally, the court outlawed arbitrary arrests of trained healthcare providers and people seeking safe abortion within Constitutional limits. Nonetheless, these gains are under attack in what Kenyans are calling the new cold war. That is, the fight between pro-gender and reproductive justice proponents, against anti-choice subscribers.
In the past few years, there have been a series of events affecting both the social, political and legal environment for access to life-saving safe abortion services. Firstly, was the arbitrary withdrawal of the National Standards and Guidelines for Reducing Maternal Mortality and Morbidity in 2013. A year after they were reinstated by the High Court, the Ministry of Health suspended all training of medical abortion providers.
In July this year, the Ministry of Health launched the National Reproductive Health Policy(2022-2032), an unjust policy that did not follow due process in its enactment including the need for representative public participation as provided by Article 118 of the Constitution. The policy also leaves out a section of the population in access to reproductive health as it enforces parental consent and does not consider deaths and complications from unsafe abortion as a public health issue despite the statistics.
Additionally, consider the sustained attack on women’s health rights by opposition groups led by far-right extremist organization CitizenGO. They work to negate human rights under the guise of Christianity. They pay hungry and unsuspecting Kenyan youth to trend hashtags that intentionally amplify lies and half-truths about sexual and reproductive health and rights issues, especially abortion, LGBTI+ rights and sexuality education.
They continue to influence public opinion; and regressive laws and policies the world over, including in Kenya. Ironically, the organization which is headquartered in Madrid, is heavily funded by institutions in and individuals from the global north, yet maintain that sexual and reproductive health and rights is a foreign agenda to Africa – and must be rejected.
CitizenGO has in the past run smear campaigns against reproductive justice. These have included Hon. Susan Kihika (former Senator – and now Governor of Nakuru County) for sponsoring the Reproductive Health Bill 2019 in the Senate. This Bill would have provided a much needed legal framework on a wide range of reproductive issues such as assisted reproduction – which continue to operate in a vacuum.
Further, they have bullied Hon. Esther Passaris on social media for hosting a Christmas party for sex workers. Recently, they trolled Hon. Mukulia the sponsor of the East East Africa Community Sexual Reproductive Health Bill and called for his dismissal from the East Africa Legislative Assembly.
Critics could advance religious arguments to counter safe abortion and the rights of gender minorities. However, it is worth noting that these beliefs are subjective. Moreover, Kenya is a secular state that operates the doctrine of church-state separation. This principle creates distance between the two; recognizing that morality and religion are subjective.
Besides, the Constitution operates a robust Bill of Rights that are legally binding – and not mere suggestions. In addition to expanding the right to safe abortion in Article 26(4), it explicitly provides for the right to the highest attainable standard of reproductive health in Article 43. Additionally, it protects the right to privacy and human dignity. CitizenGO and such like organizations must therefore operate within the ambit of the laws of the Republic.
While the outcomes of these fights are denial of information and services for marginalized groups; this fight is not just about access to services and information. It is about unequal power relations. There are people who are giving big monies towards initiatives that work to curtail human rights and freedoms; permeating government, media and other key sectors against progress.
It is therefore dire that as supporters of sexual and reproductive health and rights, we invest time and resources studying the ever-changing strategies and tactics opponents use to undermine these rights and re-strategize for the war at hand. We must prioritize movement building and reproductive rights resilience. Until then, girls and women in Kenya – and beyond, will continue to die preventable deaths.
Stepanie is a human rights lawyer and a Senior Fellow at the Aspen Institute. Ritah is the Youth Project Coordinator at Reproductive Health Network, Kenya.