How Kenya’s New Constitution is likely to impact on access to safe abortion services

Background:

The aim of this presentation is to contribute to the understanding of the provisions in the New Constitution as they relate to access to safe abortion services in Kenya, and to analyse areas of particular concern in the implementation of the Constitution. In order for Kenya to achieve Millennium Development Goal 5 on Improving Maternal Health, it is imperative that the issue of unsafe abortions is addressed, since this is a major contributor to the high maternal mortality rates in the country. In addition, complications resulting from unsafe abortion contribute to serious sequelae for women’s reproductive health such as chronic pelvic inflammatory disease (PID) and infertility.

 

The incidence of unsafe abortion generally reflects the magnitude of unwanted pregnancies in a particular community. Hence, the only sure way of effectively minimizing unsafe abortion is to ensure women have easy access to contraceptive information and services, backed up by positive legislation that decriminalizes abortion. According to UN data[ii], in most so-called developing countries like Kenya, there was a trend towards enactment of more restrictive abortion laws in the period between 1999 and 2007 (Figure 1). Whereas in nearly all countries abortion is permitted to save a mother’s life, only 60 percent and 57 percent respectively of the countries permit abortion to preserve a mother’s physical and mental health. Rape or incest, and fetal abnormalities are respectively considered in 37 percent and 32 percent of the countries; and in only 19 percent are economic or social considerations entertained. Abortion is available on demand in some 15 percent of developing countries.

 

Figure 1: Grounds on which abortion is permitted – percentage of countries

Source: (World Abortion Policies 2007 )

Constitutional provisions that are relevant to abortion services in Kenya

The new Constitution of Kenya, while maintaining the longstanding restrictive stance towards abortion[i], it nevertheless, does provide opportunities for enhancing the reproductive health and rights of Kenyan women, which if adequately implemented can significantly contribute to the reduction of the high maternal mortality rates prevailing in Kenya today, and the achievement of MDG 5. In particular, the Constitution of Kenya:

  • Is committed to nurture and protect the well-being of the individual, the family, communities and the nation[ii].
  • Guarantees reproductive health care as a right for all Kenyans[iii]
  • Commits the government to implement international conventions, and regional commitments that Kenya has pledged to support such as CEDAW[iv] and the Maputo[v] Plan of Action[vi],
  • Guarantees that every person has inherent dignity and the right to have that dignity respected and protected[vii], and
  • Guarantees equality and freedom from discrimination for every Kenyan[viii]

 

The Constitution of Kenya is explicit in the chapter on Bill of Rights regarding circumstances when abortion may be legal. Article 26 (4) states: 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. In other words, abortion can be permissible if in the opinion of a trained health professional there is need for emergency treatment (as in cases of severe pre-eclampsia and eclampsia), or the life or health of the mother is in danger (as in the case of severe cardiac disease, or complicated diabetes mellitus that is not adequately responding to treatment).

 

To a certain degree Article 26 (4) has widened access to safe abortion in Kenya through the inclusion of danger to ‘health’ as a ground for abortion in addition to danger to ‘life’, of the mother previously provided in Section 240 of the Penal Code[ix]. As it stands today, the Code of Professional Conduct and Discipline published by the Medical Practitioners and Dentists Board mentions, in addition, the health of the baby: “There is room, however, for carrying out termination when in the opinion of the attending doctors it is necessary in the interest of the health of the mother or baby”.

 

Restrictive medical practices

The Code of Professional Conduct and Discipline (see above) goes on to provide guidance on how medical practitioners should proceed in cases where there is ground for termination of pregnancy (TOP): “In these circumstances, it is strongly advised that the practitioner consults with at least two senior and experienced colleagues, obtains their opinion in writing and performs the operation openly in hospital if he considers himself competent to do so in the absence of a Gynecologist”. This guideline can present a serious access barrier, for example for the solitary medical worker in rural areas, where a second opinion may be a considerable distance away. Similarly restricting performance of abortion procedures to hospitals is not only restrictive but may also be unnecessary, considering that modern techniques for TOP can safely be carried out on an outpatient basis.

 

In addition, quite often in order to establish the risk to the life of the woman, a psychiatric assessment is required. This is not only discriminative to those living far from urban centres where psychiatrists are to be found. In addition, it is a process that gives the woman a label of psychiatric illness, besides being expensive, time consuming, and in many respects completely unnecessary. It is an invasion of the inherent dignity of the woman (see above). In many respects these practices serves to discourage rather than facilitate access to safe abortion services.

 

Provision of Safe abortion services[x]

The World Health Organization defines ‘unsafe abortion’ as “a procedure for terminating an unwanted pregnancy either by persons lacking the necessary skills or in an environment lacking the minimal medical standards, or both”[xi]. ‘Safe abortion’ services, on the other hand, imply the services are provided by well-trained health personnel and supported by policies, regulations and a health systems infrastructure, including equipment and supplies.

 

Almost all the deaths and complications from unsafe abortion are preventable through application of safe abortion practices. Termination of pregnancy (TOP) is a safe medical procedure when performed by trained health care providers using proper equipment, correct technique and ensuring infection prevention standards.

 

Regrettably, in many circumstances where women are legally entitled to have an abortion, safe services are not available to them due to a range of reasons, which include the following:

  • Provider associated problems and biases: a lack of trained providers (recruitment constraints; poor deployment and distribution); negative provider attitudes; stigmatization and other sanctions; conscientious objection among health workers.
  • Medical policies and practices: insistence on hospitalization; insistence on use of unnecessary or outdated techniques including use of general anaesthesia; opposition to task-shifting, and other regulatory bottlenecks.
  • Lack of knowledge of the law or lack of application of the law by providers; lack of public information about the law and women’s rights under the law.
  • Lack of awareness about facilities providing abortion or the need to obtain abortion services early in pregnancy.
  • Lack of awareness among health workers of their ethical and legal obligations to respect women’s rights, and to provide women in need with adequate information on where and how safe abortion services can be obtained.

 

Prevention of unsafe abortion and its complications

The Africa Union’s Maputo Plan of Action for the Operationalisation of the Continental Policy Framework for Sexual and Reproductive Health and Rights (2007-2010) aimed to reduce the incidence of unsafe abortion, through the following strategies:

  • Enacting policies and legal frameworks to reduce incidence of unsafe abortion;
  • Preparing and implementing national plans of action to reduce incidence of unwanted pregnancies and unsafe abortion;
  • Training service providers in the provision of comprehensive safe abortion care services where national law allows;
  • Providing safe abortion services to the fullest extent of the law;
  • Educating communities on available safe abortion services as allowed by national laws;
  • Training health providers in prevention and management of unsafe abortion

 

On the whole, there is consensus that to effectively reduce the incidence of unsafe abortion women must have easy access to contraceptive information and services, backed up by positive legislation that decriminalizes abortion. Table 1 shows a suggested three-tier scheme for the prevention of unsafe abortion and the related morbidity and mortality.

 

Table 1: A three-tier scheme for the prevention of abortion related morbidity and mortality[xii]

Conclusion 

 

This review has shown that the new Constitution of Kenya, despite the restrictive stance on abortion, does at the same time provide opportunities for enhancing the reproductive health and rights of Kenyan women. Hence, to be effective in the provision of safe abortion services, it is imperative that health care providers do familiarise themselves with these provisions in the Constitution. This will avoid the introduction or continuation of unwarranted access barriers to what should be legally availed to women in need.

Unsafe abortion remains an important contributor to the unacceptably high levels of maternal morbidity and mortality that prevail in Kenya; it is a key challenge to the achievement of MDG 5, as well as attaining the health targets set out in Kenya’s Vision 2030. In addressing the issue of unsafe abortion particular focus should be on ensuring equity in access to health care, especially for the poor and marginalised communities. Despite the paucity of supportive data, it is highly possible that considerably more induced abortions occur among the wealthier and more mature women than among the poor young single women that are often reported from public institutions. However, it is the latter that protract Kenya’s high maternal mortality rates, and who create the stiffest challenge to the attainment of national and international goals, if they are left ‘out of the loop’. In any case, the Constitution guarantees equality and freedom from discrimination for everyone.

 

Related Links


[i] Japheth Mati, New abortion law is still bad for women. STAR Thursday 29 April 2010

[ii] Preamble to the Constitution of Kenya

[iii] Article 43 (1) (a) Every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care

[iv] CEDAW, the Convention on the Elimination of All Forms of Discrimination against Women, is an international agreement that affirms principles of fundamental human rights and equality for women around the world. It was adopted by the UN General Assembly in 1979 through Resolution 34/180.

[v] Maputo Plan of Action for the Operationalisation of the Continental Policy Framework for Sexual and Reproductive Health and Rights 2007-2010

[vi] Art. 2 (6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya

[vii] Article 28 Every person has inherent dignity and the right to have that dignity respected and protected

[viii] Article 27 on Equality and freedom from discrimination

[ix] “A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon an unborn child for the preservation of the mother’s life if the performance of the operation is reasonable having regard to the patient’s state at the time, and to all the circumstances of the case” Section 240 of the Penal Code, Laws of Kenya.

[x] World Health Organisation. (2003) Safe Abortion: Technical and Policy Guidance for Health Systems. Geneva, World Health Organisation

[xi] World Health Organization. (1992) The prevention and management of unsafe abortion. Report of a Technical Working Group. Geneva, World Health Organization. (WHO/MSM/92.5)

[xii] Source: Mati JKG J. Adolescent reproductive health in the era of HIV/AIDS: Challenges and Opportunities. Obstet. Gynecol. East Cent. Afr. (2005); 18: 1-18


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