On 11th July 2023, the world joined African women in celebrating the 20th year since the Maputo protocol was established. The Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, better known as the Maputo Protocol, was established by the African Union and went into effect in 2005. Since then, 44 out of the 55 African Union member states have ratified the instrument with the latest country being the Republic of South Sudan.
In Kenya, The Ministry of Public Service, Affirmative Action and Gender mainstreaming led by the Cabinet Secretary Aisha Juma, hosted several member states in celebrating the very progressive International Human Rights instrument. Kenya acceded to the protocol in October 2010 but with reservations to article 14 (2) (c) which guarantees the rights of women and girls to access abortion for pregnancies following sexual assault, rape, and incest and where the continued pregnancy endangers the mental or physical health of the mother or the life of mother or the foetus.
While we applaud the state for acceding to the protocol as it has many other international instruments, we cannot ignore the very strong reservations on article 14. A report by the Centre for Reproductive Rights highlights that 2,600 women and girls die annually in Kenya, which is seven deaths everyday related to unsafe abortion complications. Unsafe abortion is reported to be the highest cause of maternal mortality and morbidity in Kenya. A National survey at the Ministry of Health reported 266 deaths resulted out of 100,000 cases of unsafe abortions procured.
The Constitution of Kenya under Article 26(4) allows for abortion where, 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.
Despite the constitutional provision and the alarming data on high maternal mortality and morbidity due to unsafe abortion, the Kenya government has chosen to turn a blind eye and has made little to no progress in ensuring access to safe abortion services, with the Maputo protocol reservations confirming their non-commitment towards the same. Shockingly, the 2012 ‘Standard and guidelines for reducing morbidity and mortality from unsafe abortion in Kenya’, that had been developed by the then ministry of medical services were arbitrarily withdrawn by the government with no explanation.
There has been a glimpse of hope in the judiciary where courts have continued to deliver landmark decisions in support of access to reproductive health services for women and girls. In 2019, in FIDA Kenya and others V Attorney General and others (2015) famously known as the JMM case, the high court upheld abortion as a fundamental human right as provided by the constitution. It also found the government to have violated the rights of women and girls by withdrawing the 2012 standard guidelines.
In 2022, in the case of PAK and Saim Mohammed v. Attorney General et al(2020), the high court held that arbitrarily arresting and prosecuting patients seeking abortion care or healthcare providers offering abortion services is illegal. It also affirmed abortion as a fundamental right.
With the beautiful court orders on paper and with a government not keen on implementation of the same, they remain just that. The result of this has been medical practitioners shunning away from offering safe abortion services in the absence of the guidelines and with the fear of arrest and prosecution under the penal code.
The various human rights international instruments provide for periodic reviews of the progress made by states towards implementation. Civil society organizations in Kenya have continued to report on the above matter and the government has continuously received implementation orders/recommendations without taking any action. Legal advisories to the state on withdrawal of the reservations under Maputo to be in line with the constitutional provisions on, inter alia, accessing the highest attainable standards of healthcare for women and girls, have also been ignored.
An endless cycle of reporting-recommendations and non-implementation with states only receiving a light slap on the wrist during the review processes seems to be the order of the day. As we celebrate the achievements of the Maputo protocol, review the challenges and strategize on the way forward, is it high time we considered punitive actions and more serious sanctions to countries party to various international instruments for non-implementation?
Legal and policy barriers have stood in the way of realizing sexual and reproductive health rights in Kenya contrary to its commitment under the Maputo protocol. Various retrogressive bills have recently been proposed, including the Family Protection Bill, to further limit these rights by for example limiting the right to comprehensive sexuality education for young girls, access to contraceptives and access to abortion care and services.
I was recently in a forum where Dr Ruth Nekura, a women’s rights expert, reminded us that in the fight for the rights of women and girls, progress will not always look or feel linear, and will involve moving backward sometimes and that is okay as long as we are gradually moving forward. This really resonated with me as most times it feels like we keep reaching a cul-de-sac in advancing women’s and girl’s rights, but we must keep fighting, showing up and pushing forward, A luta Continua!
