Addressing the COVID-19 Pandemic in Kenya: Human Rights Lessons from the HIV/AIDS Epidemic

Global epidemics and their impact

The world has been plagued by a number of epidemics including the Spanish flu, HIV/AIDS, Smallpox, SARs and Ebola. These pandemics have had a devastating impact on the globe both in the number of lives claimed and the ravages wrought to the economies of the world.

The 1918 Spanish flu for example is estimated to have claimed at least 50 million lives with HIV/AIDs having claimed about 32 million globally. The current epidemic had topped about 270, 000 deaths at the time of writing this article. The economies of the world are threatened with collapse with China’s economy shrinking for the first time in 28 years.

Kenya and the COVID-19 pandemic

Locally, even with minimal loss of lives compared to the global statistics, the epidemic has had a devastating effect on our Kenyan economy with Kenya’s GDP expected to contract significantly. To address the economic impact on its economy, Kenya has so far sought from IMF and has been advanced by the institution Kshs. 79.3 billion.

Lessons from previous epidemics

The impact of the COVID-19 epidemic notwithstanding a number of lessons can be drawn from previous epidemics. Lessons on international cooperation and social distancing have been learned as effective measures to slow pandemics. International cooperation between the Soviet Union and the United States during the smallpox pandemic for example was hailed for the eradication of the disease. Previous pandemics may also play a key role in projecting the number of deaths and effect on economies during this epidemic.

Human rights based approaches

As we grapple with the epidemic and learn lessons from past epidemics, the past epidemics also have revealed that it is significant for states to adopt human rights based approaches to effectively combat epidemics.

Lessons from discrimination, stigmatization and criminalization of a pandemic

An investigation of how governments and societies responded to the AIDS epidemic at the initial stages of the pandemic reveal that many people were discriminated and stigmatized on the basis of their serostatus. Those who contracted the disease were mostly shunned by the society and were reprimanded for engaging in risky behaviour. The criminalisation of homosexual conduct and commercial sex work in most laws has been attributed to the restricted access to medical treatment for high risk populations.

For the COVID-19 pandemic, upon the declaration of the curfew in Kenya the police enforced the orders in the most un-proportionate and brutal manner. The brutality by the police was a clear demonstration of criminalization of the COVID-19 pandemic rather than treating it as a health concern.

In fact in the case challenging the curfew order it was argued by LSK and Kituo Cha Sheria that it was erroneous for the state to issue the curfew order under the Public Order Act which is a statute that mainly governs criminal conduct. The COVID-19 being a health emergency then the government should have issued the order under the Public Health Act.

Though the court did not quash the curfew order on the basis of the precautionary principle as a protective measure of the risk of the disease, the court recognised that for the Curfew Order to achieve its objectives and to be embraced by the public it should not be seen as a tool of force but something that aims to protect the health of the people.

The stigmatization of the COVID-19 pandemic in Kenya has been fueled by the forced quarantine, squalid conditions within the quarantine facilities and the requirement by individuals to pay for the quarantine fees. Most of the people who have been sent to the quarantine facilities have felt to be disproportionately targeted.

There is further no doubt that the use of quarantine measure to control the spread of COVID-19 has not been embraced by most Kenyans who view it as punishment. While the quarantine measure may be well intentioned it is obviously clear that the problem is that it is not people driven and its execution has been mismanaged.

The AIDS pandemic taught us that an effective control of the pandemic should recognize the presence of the disease and high risk persons without judgment. The government should then initiate all inclusive, community led campaigns to educate the citizenry to achieve de-stigmatization and tolerance in the society.

The government should also adopt initiatives aimed at curbing spread that are lawful, participatory and that apply uniformly. The International Covenant on Civil and Political Rights (ICCPR) dedicated to various rights requires that restrictions on the rights should be for reasons of public health or national emergency and must be lawful, necessary and proportionate. Restrictions such as forced quarantine must be strictly necessary, apply uniformly and recognizing human dignity.

The South African AIDS pandemic experience in de-criminalizing consensual sex has taught us that stigmatization and discrimination is reduced and in turn encourages access to adequate prevention and medical treatment. South Africa with its laws that abhor discrimination on the basis of sexual orientation remains a perfect example of governments that have overcome the barriers of HIV/AIDS prevention, treatment and care efforts.

There is no doubt then that from the South African HIV/AIDS experience, Kenya can take measures aimed at decriminalization and de-stigmatisation of the COVID pandemic to enhance prevention and treatment. Kenya can further enhance recognition, support and put in place targeted interventions for high risk populations like those living in slums and prisons as a critical measure in curbing the spread of COVID-19.

Conclusion

Finally, the WHO Director-General Tedros Adhanom Ghebreyesus has put it eloquently, “The greatest enemy we face is not the virus itself; it’s the stigma that turns us against each other.”

By: John Mwariri

Programme Coordinator, Legal Aid and Education Department

Kituo Cha Sheria.

Self-care tips during the COVID-19 pandemic

The COVID-19 pandemic can feel overwhelming to most of us due to new information and caring for your family and yourself. It is important to pause for a moment and collect your thoughts. Remaining calm can help. It is normal to feel stressed or overwhelmed during uncertain times like these. Emotions in response to uncertainty may include anxiety, fear, anger and sadness. Take care of yourself in order to be equipped to help your family and colleagues through this time.

Watch this simple self-care routine clip>>>https://www.youtube.com/watch?v=JFCtWc77aUQ

Coping with Stress during the COVID-19 (Coronavirus) pandemic

Some simple tips on how to deal with stress and anxiety during this pandemic…

1. Feel free to feel your feelings

You and your colleagues are likely to feel immense pressure given the potential surge in care demands, risk of infection and equipment shortages, among other stressors. Experiencing stress and the feelings associated with it are by no means a sign of weakness or a reflection on your ability to do your job.

2. Intentionally employ coping strategies

Put into practice strategies that have worked for you in the past during times of stress. These can include getting enough rest and finding rest time during work or between shifts, eating meals (ideally, healthy food, on a schedule), engaging in physical activity and staying in contact (with appropriate social distancing) with family and friends.

3. Perform regular check-ins with yourself

Monitor yourself for symptoms of depression/stress disorder such as prolonged sadness, difficulty sleeping, intrusive memories and/or feelings of hopelessness. Talk to a trusted colleague or supervisor. Be open to seeking professional help if symptoms persist or worsen over time.         

4. Take breaks from the news and social media

Make a regular habit of stepping away from your computer and smartphone from time to time. When returning online, focus on information from reputable sources, not just sources in your social media feed.  You don’t have to take in everything produced by a 24/7 news cycle.

5. Be fortified by remembering the importance and meaning of your work

Remind yourself that despite the current challenges and frustrations, yours is a noble calling – taking care of the most vulnerable in the community.  Together, we are all stronger.

By: Shem Alubala, Psychologist

MHPSS-Kituo Cha Sheria

Working from Home!

A psychologist’s perspective in these COVID-19 pandemic times

 A majority of us have had predetermined set schedules an 8am-5pm job with clear lines between our homes and the work place. Since early March, 2020 these walls came tumbling down and no one knows exactly when they will be rebuilt, although we are asked to keep hope alive. The world is faced with a virus so lethal and cruel which has not just put our humanity to test, but also gripped us with fear and lots of introspection.

Man must live! Life must go on! Bills must be paid!

Most importantly we must safeguard our HEALTH as well as look into rebuilding after the turbulence is over. How are we transiting? To what extent has our resilience been pushed to? How is the experience of working from home as foreign as it sounds?

From a mental health perspective experts and pseudo-experts across the world have put forth some recommendations- people are wired differently but here are some cues:-

Drastic changes require drastic adjustments: For most of the people who have always separated the office and workplace function, the sudden shift of the office to your home means re-adjustment to bring the office amenities to the household. Beyond the need for infrastructure (computer, internet); is the need for a quiet working space, and for most people this has become either the dining table or the bedroom but  if you have the little  running, hyper active and over energized soldiers then  your best bet is the bedroom  working under lock and key.

Time management is an utmost discipline: Suddenly we all have a lot of time in our hands but confronted with very few options. An old adage goes, to whom much is given, much is expected, and this time we are almost all equally gifted with long extended hours at home. Managing this time becomes critical to achieve an effective work and life or is it home balance. Once we have attended to the work needs, we have been forced to become creative in spending time to make the stay at home interesting. 

Technological savviness is inevitable: With the transition almost all services have become virtual, with technology   being employed in sharing, meetings, group tasks and even conferences.  Suddenly distant IT terms like ‘Microsoft teams, drop box, we transfer, documents collaborations, etc have become inevitable. Needless to say some people are more challenged than others, but one thing that is clear is that we cannot avoid technology.  Virtual IT support has become the norm but this means you have to work on the nuts and bolts of learning software yourself. But take it in stride; it’s all in the learning curve!

Work life balance taken literally: For the longest time we’ve been guilty of tossing the statement work-life balance and especially in relation to the family. However the full experience had been limited to the weekends that are further disrupted by personal errands, limiting it to a few hours of interaction. However, the experience of being under the same floor with our families for extended hours- 24/7 is almost surreal. Gone are the days families would exchange small talk and pleasantries between catching up on news, doing homework and having dinner together before catching sleep for a few hours before the routine replays.  With no school or much engagement outside, there is all the time and suddenly there is need to have longer and hopefully meaningful and impactful conversations as a unit. Consequently, many people are relearning their children, spouses, and partners and even rediscovering themselves and their hidden talents and gifts, given the time in our hands.

When to hold and when to let go: When initially catching up on the news every second was critically important for most people, as the pandemic evolves, some people have sometimes opted to have a media block. This could be so as to avoid unnecessary panic but also to focus on work or maybe it’s the adjustment setting in, that actually working from home can happen. In the face of such a pandemic, psychologists have advised that keeping off the negative news is important, as it may have negative consequences on your health.

The true value of colleagueship: Once upon a time before COVID-19,   weekends and sometimes working away from the office was one of those welcome breaks from sometimes monotonous office spaces with the same people and same vibe. But  as the days go by, and with  every  consultation coming  at a cost, and brainstorming sessions having  to be pre-planned unlike when you’d just walk up to a colleague to pick their brain on an issue; the invaluable importance of the these engagements is becoming avid. We are slowly learning that the 8 hours that sometimes came across as toilsome, offered a lot in terms of comradeship that we may have often downplayed.  Boundaries have not just been challenged but thoroughly redefined.

Health is the greatest wealth; with the globe grinding to a halt because of the virus, there has been great introspection of what ones health and the health of a nation means and the need to safeguard health as the greatest wealth.

As we continue to novel our experiences, we must remain positive and hopeful, because after this tide, we have an opportunity to not just rebuild but to better what we had previously.

Stay close to your normal routine: Try and maintain some semblance of structure from the pre-quarantine days. For those individuals with children, sticking to a routine might be easier; however as you work from home, it could be tempting to fall into a more lethargic lifestyle, which could lead to negative thinking. Wake up and go to bed around the same time, eat meals, shower, adapt your exercise regimen, and get out of your PJ’s. Do laundry on Sundays as usual. Not only will sticking to your normal routine keep you active and less likely to spiral, it will be easier to readjust to the outside world when it’s time to get back to work.

Avoid obsessing over endless Corona virus coverage: Freeing up your day from work or social obligations gives you plenty of time to obsess, and if you have a tendency to consult Google for every itch and sneeze, you may be over-researching the pandemic as well. Choosing only certain credible websites (who.int or Kenyan Ministry of Health or is it Mutahi Kagwe daily briefs??) fora limited amount of time each day (perhaps two chunks of 30 minutes each) will be in your best interest during this time.

A chaotic home can lead to a chaotic mind: With all the uncertainty happening outside your home, keep the inside organized, predictable and clean. Setting up mental zones for daily activities can be helpful to organize your day. For example, try not to eat in bed or work on the sofa- just as before, eat at the kitchen table dining table and work at your desk or an equivalent. Loosening these boundaries just muddles your routine and can make the day feel very long.

Additionally, a cluttered home can cause you to become uneasy and claustrophobic of your environment- so keep it tidy.

Start a new quarantine ritual: With this newfound time, why not do something special during these quarantined days? For example, perhaps you can start a daily journal to jot down thoughts and feelings to reflect on later. Or take a walk every day at 4 pm, connect with your loved ones over phone every morning, or start a watercolor painting which you can add to everyday. Learn a new recipe. Just be innovative….and stay safe!

The article was compiled by Shem Alubala a psychologist at MHPSS- Kituo Cha Sheria with pieces drawn from a number of articles online.

MHPSS: Kituo Cha Sheria and GIZ have worked together since 2017 in providing mental health and psychosocial support to refugees in urban areas through the Mental Health and Psycho-Social support Services (MHPSS) which is under the Forced Migration Program. The MHPSS program at Kituo cha Sheria is part of urban refugee MHPSS working group comprising of UNHCR, RCK, HIAS, DRC, CVT, ReFuShe, NCCK, Hesed Africa, AAA, MSF and REFUGE POINT. The program is also an active member of SGBV (sexual gender based violence) and IPPL (integrating psychosocial peace and legal) working groups. MHPSS’s focus is on refugees and the host community with emphasis on mental health awareness creation, individual counseling, group counseling, community forums, training of key stakeholders like the police, judiciary and other government officials on the mental health concerns among the persons of concern (refugees and host community). In addition, the program offers self-care and team training to the Kituo staff and has been of support to the team in terms of debriefing and emotional support.

COVID-19 Information

WHAT IS CORONA VIRUS (COVID-19) DISEASE?

It’s a new respiratory disease which is highly contagious and it’s mainly spread from person-to-person. The COVID-19 virus spreads primarily through droplets of saliva or discharge from the nose when an infected person coughs or sneezes, so it’s important that you also practice respiratory etiquette.

GENERAL INFORMATION ABOUT COVID-19

  1. Corona Virus Disease 2019 (COVID19) is a new respiratory illness that can easily be spread from person to person.
  2. COVID-19 is spread through contact with droplets produced by a person who is sneezing or coughing or contaminated surfaces or objects.
  3. COVID-19 can cause severe symptoms like fever, cough, headache, body aches and difficulty in breathing.
  4. COVID-19 is preventable through;

-Washing your hands with soap and running water or using an alcohol based hand sanitizer,
-Keeping a social distance of at least 1 meter or 2-3 steps from people with flu-like symptoms.
-Avoiding shaking hands, hugging or kissing with people with flu-like symptoms.
-Staying at home and avoiding travel when you have flu-like symptoms.

  • Early detection and treatment can contribute greatly to survival of the patient.
  • COVID 2019 cannot be transmitted through air.

How do you protect yourself?

Wash your hands frequently

Regularly and thoroughly clean your hands with an alcohol-based hand rub or wash them with soap and water.

Why? Washing your hands with soap and water or using alcohol-based hand rub kills viruses that may be on your hands.

Maintain social distancing

Maintain at least 1 meter (3 feet) distance between yourself and anyone who is coughing or sneezing.

Why? When someone coughs or sneezes they spray small liquid droplets from their nose or mouth which may contain virus. If you are too close, you can breathe in the droplets, including the COVID-19 virus if the person coughing has the disease.

Avoid touching eyes, nose and mouth

Why? Hands touch many surfaces and can pick up viruses. Once contaminated, hands can transfer the virus to your eyes, nose or mouth. From there, the virus can enter your body and can make you sick.

Practice respiratory hygiene

Make sure you, and the people around you, follow good respiratory hygiene. This means covering your mouth and nose with your bent elbow or tissue when you cough or sneeze. Then dispose of the used tissue immediately.

Why? Droplets spread virus. By following good respiratory hygiene you protect the people around you from viruses such as cold, flu and COVID-19.

CONTACT INFORMATION  

If you feel unwell, have a cold or a cough or fever, please call 719 or text *719# which is a toll-free number provided by the Government of Kenya.

You can also call the following County Hotline number/visit the websites:

Nairobi- 0800721316 (tollfree) / 0732353535

Mombasa- 0793390984/0734881233/0777777242

https://www.who.int/

We would also like to remind you of alternative hotlines available in specific situations:

  • National GBV (Gender-Based Violence) hotline: 1195
  • Kenya police emergency hotline: 999/112
  • MSF sexual violence hotline (Doctors without borders): 0711400506
  • LVCT Health (Liverpool voluntary counselling and treatment for HIV): 0800720121

We thank you for staying calm and request that you exercise all reasonable precautions issued by the World Health Organization (WHO) and the Government of Kenya so as to protect yourselves and your families against COVID-19.

Unity of purpose: the case of resolution of the challenge relating to P3 form by Stakeholders in Mombasa County to enable access to justice

Unity of purpose: the case of resolution of the challenge relating to P3 form by Stakeholders in Mombasa County to enable access to justice

Towards the end of 2019, the Coast Civil Society Network worked together with Judiciary, County Government of Mombasa, the Office of Director of Public Prosecution, Kenya National Commission on Human Rights and the National Police Service on the matter of P3 form. On 10th December 2019, the day of International Human Rights celebration, the above mentioned stakeholders conducted a session under the Mombasa Court Users Committee forum, albeit expanded to streamline access to P3 forms.   

P3 form has presented numerous hurdles for access to justice for the poor and vulnerable. The community had expressed challenges on how to access P3 form, to enable them seek justice. This is because some people were compelled to pay in order to access the form while others paid health officers to fill the form. Some failed to issue receipts. The amount issued was also unpredictable. In most circumstances, clients paid Kshs. 1500 others paid up to Kshs. 3,000. In some cases, the health officers failed to appear to adduce evidence in court.

Doctors admitted that they sought money from the patients to cover for their transport to court. They indicated that the hospitals were not providing any amount. As such, they needed money to enable them travel to court to adduce evidence.

The police were however categorical that there’s no amount charged to the public to access P3 forms. They added that the forms are readily available in the internet and could be downloaded therefrom. They however needed it filled by health facilities before presenting to the Office of Director of Public Prosecution as part of the content of the prosecution file.

The office of the Director of Public prosecution counseled that in case doctors present taxi receipts for attendance to court as witnesses, they would apply to court for their refund. In that case, the representatives from the county health facilities and office of Director of Public Prosecution needed to share the information in their various offices.

Upon this clarification, the team felt obligated to sensitize public for their information. As such, the subsequent activity was held at the community Hall in Nyali Sub County. This was on 14th December 2020 and another in Likoni on 20th December 2020. During the forums, even though Kituo took leadership, other organizations under the banner of Coast Civil Society Reference Group participated actively.   

The Chief Magistrate joined us at the Legal Aid and Legal at KICODEP hall. This was a meeting where community was invited. The community sought answers relating the P3 form at the plenary during the session. The community also sought to know why there have been delays in handling of the cases, especially land. On the other hand, there were challenges with defilement matters. Some needed to know why suspects of defilement were always immediately after their arrests. The chief Magistrate explained that some were released on bail bond terms pending hearing of the cases. She also explained that delays were as a result of constraint of human resource at the Judiciary.

There were also Governance issues raised, which we assigned our community justice centre. The entire Bombolulu Estate Roads do not have names or are not marked and assigned names. As such, the Kicodi justice centre, under Kituo, was assigned to lead a process of engaging the County Government of Mombasa to ensure the roads are properly marked.

UNDP Amkeni Wakenya has been supporting the strengthening of the Coast Civil Society Network. This support has been delivered through Kituo to facilitate Civil Society Quarterly meetings. It is in these meetings and subsequent Legal Aid forums where the plan to engage stakeholders was developed and implemented to ensure clarity on the matter of access to P3 form in Mombasa County.

By:

Zedekiah Adika, Advocate
Kituo Cha Sheria

An analysis of Reproductive Health Laws in Kenya

Introduction

Reproductive Rights according to the Black’s Law Dictionary are a person’s constitutionally protected rights relating to the control of his or her procreative activities specifically the cluster of Civil liberties relating to pregnancy, abortion and sterilization.[1] Reproductive Health according to the Reproductive Health care Bill has is a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity, in all matters relating to the productive system and to its functions and processes. The Bill also defines reproductive rights to include the right of all individuals to attain the highest standard of sexual and reproductive health and to make informed decisions regarding their reproductive lives from discrimination, coercion or violence;[2]

Legal Framework on Reproductive Health Rights

It is important to note that we borrow most of our laws on reproductive health rights from International and regional conventions and declarations. These include:

  • United Nations Universal Declaration of Human Rights. New York: United Nations, 1948 (Article 2,3,25 and 26)
  • UN. International Covenant on Economic, Social and Cultural Rights (ICESCR). New York: United Nations, 1966 (Article 2,10 and 12)
  • Convention on the Elimination of all Forms of Discrimination Against Women (Article 11,12 and 14)
  • Convention on the Rights of the Child (Articles 2,6 and 24)
  • African (Banjul) Charter on Human and Peoples’ Rights (Articles 2,16,18 and 25)
  • The African Charter on the Rights and Welfare of the Child (Articles3,5,11,14, 21 and 27)

National Legal Framework

The most supreme law of the country, the Constitution of Kenya 2010 gives provisions on the right to reproductive health under the Bill of Rights. Kenya has also adopted various International and Regional Conventions to its local law and has also gone further to enact specific laws that protect reproductive rights. The issue of adequacy of the law is determined by the existing provisions.

The Constitution of Kenya, 2010

This is the supreme law of Kenya and through its provisions in Articles 2(5) and 2(6) allow that the general rules of international law shall form part of the law of Kenya and that any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution respectively.

Article 26 is on the right to life of every person and provides that the life of a person begins at conception. In sub article 4 it states that 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.

Article 27(3) states that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. This covers the right to equal treatment in the health facilities. Sub article 4 obliges that the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

Article 28 is on the right to one’s dignity being respected and protected which covers matters such as the services offered by health care providers. They ought to preserve the dignity of all without any discrimination.

Article 29 states that every person has the right to freedom and security of the person, which includes the right not to be subjected to torture in any manner, whether physical or psychological[3]which criminalizes acts such as female genital mutilation and forced or coerced sterilization.

Article 43 is on the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.

The Constitution further singles out health care for specific groups such as children and persons living with disabilities in Article 53 article 54 respectively. The underlying determinants of the right to health are also guaranteed in article 43(1) (b-f) and include right to adequate housing, right to adequate food, clean safe water, social security and to education.

The legal provisions in the Constitution are inadequate when it comes to the protection of reproductive health rights as it is not specific to all the reproductive health rights. The provisions are general and not specific to all the reproductive rights hence necessitating a specific law that focuses solely on reproductive health rights.

HIV/AIDS Control and Prevention Act [4]

The object and purpose of this Act[5] covers some of the principles such as that of non- discrimination, confidentiality, public awareness and participation, freedom as to consent to testing.

As to the specific provisions, Section 4(1) is on the role of the government to promote public awareness about the causes, modes of transmission, consequences, means of prevention and control of HIV and AIDS through a comprehensive nationwide educational and information campaign conducted by the Government through its various Ministries, Departments, authorities and other agencies while Section 5 insists on HIV and AIDS education in institutions of learning.

Section 13 speaks on the principle of informed consent and voluntary treatment as it prohibits compulsory HIV testing. Section 19 is on the access to health care services to persons with HIV without discrimination on the basis of HIV status and that the government shall, to the maximum of its available resources, take the steps necessary to ensure the access to essential health care services, including the access to essential medicines at affordable prices by persons with HIV or AIDS and those exposed to the risk of HIV infection.

The Children Act [6]

The Children Act protects the rights and freedoms of those who are considered children under the law. This is those who are below the age of 18 years. The relevant sections that are linked to the right to enjoy reproductive rights go from the provision of education to the right of privacy for children, which also influences the provisions for adolescents who fall under the category of children under the law.

Section 4(1) which states that every child shall have an inherent right survival and to life and it shall be the responsibility of me best interests Government and the family to ensure the survival and the development of the child.  This section looks at the best interest of the child.

Section 7 is on the right to education which shall be the responsibility of the Government and the parents and every child shall be entitled to free basic education which shall be compulsory in accordance with Article 28 of the United Nations Convention on the Rights of the Child.

Section 14 criminalizes female circumcision, early marriage or other cultural rites, customs or traditional practices that are likely to negatively affect the child’s life, health, social welfare, dignity or physical or psychological development while Section 15 provides that a child shall be protected from sexual exploitation.

Sexual Offences Act [7]

Section 3 and 4 criminalizes rape and attempted rape respectively. These are violations to the Reproductive health of persons. A person guilty of the rape is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life while the provision of attempted rape is imprisonment for a term which shall not be less than five years which may also be enhanced to imprisonment for life.

Section 8 is on defilement. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

Section 14 is on sex tourism which attracts a 2 million shillings fine for juristic person not less than 10 years imprisonment.

Section 15 provides for the offence of child prostitution and the imprisonment term is not less than 10 yrs.

Section 43 on intentional and unlawful acts. It specifies that these acts may either be coercive, by fraudulent means or through false pretenses. The coercive aspect could be through the use of force, use of threat of harm or through abuse of authority in a way that the victim is inhibited from showing such resistance. All of these acts constitute a crime against human beings with regard to violation of their reproductive rights which is a breach of the law.

Penal Code [8]

Sections 158 to 160 dwell on matters concerned with reproductive health. These sections deal with the termination of pregnancies.

Section 158 is on the liability of the person who has intent to procure a miscarriage and does so by unlawfully administering a poison or noxious drug or uses any other means. Once found guilty is liable to imprisonment for 14 years.

Section 159 makes it an offence for a person to procure their own miscarriage. Such a person is liable to imprisonment for 7 years.

Under Section 160, anyone who supplies or makes available drugs or equipment to procure a miscarriage and has knowledge on the same. Such a person is liable to 3 years imprisonment. These provisions are however restrictive and do not provide for modes and specifications as to safe abortions.

Section 240 can be read as creating a lawful exception. It states that, a person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or 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. However, the provision offers no guidance as to what circumstances may constitute the preservation of the woman’s life resulting in a lacuna in the legal provisions which may result in different interpretations of this exception.

Provisions of the Reproductive Health Care Bill, 2014

This Bill is yet to be made law in Kenya. It provides for reproductive health issues some of which are the focus of this paper.

It has several objectives:

  1. To provide a framework for the protection and advancement of reproductive and health rights for the women.
  2. To promote women’s health and safe motherhood.
  3. To achieve a rapid and substantial reduction in maternal and child mortality rate.
  4. To ensure access to quality and comprehensive provision of health care services to women and children.[9]

Part II of the Bill is on the access to contraceptives and family planning services. The National and County Governments shall make available contraception and family planning services, including contraceptive options, counseling, information and education according to Section 4.

Section 5 of the Bill states that a person has a right to information from the health care service provider prescribing a contraceptive method on the advantages and disadvantages of a contraceptive method so as to make an informed decision.

Part III gives provisions on gestational surrogacy, safe motherhood, termination of pregnancy, the requirement for consent for minors and those of unsound mind, adequacy of health facilities, confidentiality, child health care, the reproductive health of adolescents and penalties for the offences mentioned in the Bill

Are the reproductive health laws in Kenya adequate?

For Kenya to reach complete achievement of reproductive rights, there is need for adequate law on the same. There are various laws that touch on reproductive health rights in Kenya, the challenge is as to whether these laws are adequate to ensure the realisation of these rights.

The Constitution is not specific as to the protection of reproductive health rights and only provides for an umbrella of rights such as that to dignity, right to freedom and security of a person, the right to the highest attainable standard of health and that 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. These provisions are not specific to reproductive health rights. Such inadequacy leaves too much room for discretion when it comes to enforcement of the right to reproductive health which might lead to non-realization of these rights.

In addition to the inadequate Constitutional provisions, there is also no specific Act on reproductive health care. We currently have a Bill in place, the Reproductive HealthCare Bill of 2014. This Bill has not been passed because it faces a lot of opposition by both religious leaders and legal experts. This means that there exists no extensive binding law that prevents the violation of reproductive health rights. Litigants have to use the existing relevant statutes which in most cases do not give specific provisions on matters of reproductive health. The existing laws on reproductive health rights include; the Penal Code, the HIV/AIDS Control and Prevention Act, The Children Act and the Sexual Offences Act.

However much the existing Bill tries to provide for surrogacy, termination of pregnancy, free emergency treatment, access to reproductive health services by adolescents, HIV prevention informed consent, the prohibition of female genital mutilation and the creation of a board and tribunal on matters of reproductive and child care, it has been met with a lot of opposition by parents, the clerics, the Ministry of Education and the public. The view on this Bill is that it causes moral decay among the adolescents who are at a very vulnerable stage of their lives as well as its inadequacy as to provisions on the complete protection of all reproductive health rights.

The objectives of the proposed Bill are undefined and vague making it easy for enforcers to interpret them differently. Terms such as child mortality and safe motherhood are not defined in the said Bill. The Bill is also faulted for making very little reference to safe motherhood. It merely provides for who are to offer maternal care in Section 16 and doesn’t give the steps on how to encourage safe motherhood. Section 17 also doesn’t include post-natal care services as a service that facilitates safe motherhood of pregnant women which contributes to its inadequacy.

Part IX of the Bill on the reproductive health of adolescents has also elicited much debate and opposition among legal experts, parents and religious leaders. The argument has been that at the age of 10-17, children need to be guided and parents or guardians need to be involved in the child’s life. It is contrary to the provision in Section 19 of the Children Act that provides the right to privacy of a child is subject to parental guidance. It also goes against Constitutional provisions in Article 53 1(e) which provides that every child has the right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not and Sub article 2 which states that a child’s best interests are of paramount importance in every matter concerning the child.

Legal abortion in industrialized nations has emerged as one of the safest procedures in contemporary medical practice, with minimum morbidity and a negligible risk of death.[10]The restrictive laws we have in Kenya on termination of pregnancies has led to failure of realization of the right that women have to choose when to have children.

Consequences of inadequate laws on reproductive health rights

Inadequacies in the laws results in inadequate enforcement of reproductive health rights which has led to violations such as inadequate reproductive health facilities, poor quality of available health care and increased cases of forced and coerced sterilization of women especially those living with HIV going unpunished.

The restrictive nature of the laws regarding termination of pregnancies has resulted in many challenges. First, procuring an abortion in Kenya, whether safe or unsafe, carries social risks for women, such as stigma and social condemnation as well as legal risks such as fear of arrest and prosecution. Some women are forced to carry an unwanted or unplanned pregnancy to term. This has serious implications for her mental and physical health and her ability to realize other fundamental human rights as this causes a breach to their right to be free from cruel, inhuman, or degrading treatment.

There is also the challenge of accessing post-abortion care which might either be inadequate or too costly to afford. The inadequacy of the legal provisions on abortions in Kenya, has led to lack of clarity concerning clinical officers’ and nurses’ scope of practice in Kenya which has led to most health care providers not offering this service in fear of criminal proceeding being brought against them.[11]

In conclusion, there is need for increased adoption of laws both at the International and Regional level into the National laws we have on reproductive health rights. Kenya is yet to enact a binding law on reproductive rights and the current Bill has been faced by much opposition as to matters of morality and adequacy in provisions which will be discussed in the next chapter. This in turn means that the realization of these rights is not complete in Kenya because of the inadequate legal provisions.

Published by

Tracy Wachira, Advocate

RCKM, Kituo Cha Sheria


[1] Bryan A Garner, Black’s Law Dictionary, 9th Edition

[2] Reproductive Health Care Bill, 2014 part I

[3] Sub article d of Article 29

[4] No 14 of 2006

[5] Section 3 of no 14 of 2006

[6] No 8 of 2001

[7] No 3 of 2006

[8] CAP 63 of 2007

[9] Section 3 of the Reproductive Health Care Bill, 2014

[10] David Grimes et al, Unsafe abortion: The preventable pandemic, (Lancet, 2006)

[11]In Harm’s Way: The Impact of Kenya’s Restrictive Abortion Law. (Centre for Reproductive Rights, 2010) at 14.