From The Bench

Press Summary – Petition 266 of 2015

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

(Coram: A O Muchelule,  M. Ngugi, G V Odunga, L A Achode & J M Mativo)

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO 266 OF 2015

FEDERATION OF WOMEN LAWYERS

(FIDA – KENYA)……………………………………………………………..1ST PETITIONER

JMM THROUGH PKM (SUING AS GUARDIAN

AND NEXT FRIEND OF JMM).……………………….………………..……2ND PETITIONER

RUTH MUMBI MESHACK..…………………………….…………….…… 3RD PETITIONER

VICTORIA OTIENO AWUOR….…………………………………………. 4TH PETITIONER

AND

THE ATTORNEY GENERAL……….…………………………..……..….. 1ST RESPONDENT

THE CABINET SECRETARY,

MINISTRY OF HEALTH…………………………………………………………………… 2ND RESPONDENT

THE DIRECTOR OF MEDICAL SERVICES.…………………………………….3RD RESPONDENT

EAST AFRICA CENTER FOR LAW

AND JUSTICE……………………………..………………….……. 1ST INTERESTED PARTY

KENYA CHRISTIAN PROFESSIONALS FORUM………………….2ND INTERESTED PARTY

CATHOLIC DOCTORS ASSOCIATION…………………………………3RD INTERESTED PARTY

JOHN MBUGUA….………………………………….….………….4TH INTERESTED PARTY

ARTICLE 19 EASTERN AFRICA………………………………………….5TH INTERESTED PARTY

PHYSICIANS FOR HUMAN RIGHTS……………………………………..6TH INTERESTED PARTY

NAZLIN UMAR RAJPUT…………………………………….……7TH INTERESTED PARTY

 

WOMEN’S LINK WORLDWIDE….…………….………………………….. 1ST AMICUS CURIAE

NATIONAL GENDER

AND EQUALITY COMMISSION………………..………………….… 2ND AMICUS CURIAE

KENYA NATIONAL COMMISSION

ON HUMAN RIGHTS ……………………………………………………3RD AMICUS CURIAE

 

MEDIA SUMMARY

The following explanatory note is provided to assist the media in reporting this case and is not binding on the High Court or any member of the Court.

The stated subject of the petition is the withdrawal of the 2012 Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya and the National Training Curriculum for the Management of Unintended, Risky and Unplanned Pregnancies. These documents were withdrawn by the Director of Medical Services (DMS) through a letter dated 3rd December, 2013 and Memo dated 24th February 2014.

Hovering over the subject of this petition is the spectre of JMM, an eighteen year old girl who died during the pendency of this petition and is represented in the proceedings by her mother and next friend, PKM. The respondents and the interested parties view the 2012 Standards and Guidelines and the Training Curriculum as opening the door for abortion on demand. The Court was therefore called upon to make a determination on the meaning and implication of Article 26(4) of the Constitution.

The Court held that abortion is illegal save for the exceptions provided under Article 26(4) of the Constitution which provides that abortion is permissible, if 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. That is the letter of the Constitution.

On the issue whether pregnancy resulting from sexual violence falls under the permissible circumstances for abortion under Article 26(4), the Court observed that this issue cannot be dealt with without determining the issues relating to right to health and the right to reproductive health. Health in section 2 of the Health Act, 2017 entails a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. This is a definition substantially reflected in the international instruments.

It was the view of the court therefore that women and girls in Kenya who find themselves pregnant as a result of sexual violence have a right, under Kenyan law, to have an abortion performed by a trained health professional if that health professional forms the opinion that the life or health of the mother is in danger. It therefore follows that if a pregnancy results from rape or defilement, and in the opinion of a trained health professional, endangers the physical, mental and social well-being of a mother, abortion is permissible (that is the health of the woman or girl).

The Court cited section 6(1) and (2) of the Health Act, 2017 and took the view that contention by the 2nd and 3rd Interested Parties that the term “trained health professional” means a ‘qualified medical doctor’ was not borne out by the constitutional and statutory provisions, or by the reality on the ground.

On the issue whether the DMS’s impugned letter and Memo met the test for limitation of rights set out in Article 24 of the Constitution, it was held that the withdrawal of the 2012 Standards and Guidelines, the Training Curriculum was ultra vires the powers of the DMS since those powers are bestowed upon the Board Medical Practitioners and Dentists Board.

The Court held that the actions of the DMS further violated the rights of the petitioners, other women and adolescent girls of reproductive age to the highest attainable standard of health guaranteed under Article 43(1) (a). Being a right that inures to women and girls only, the Court was of the view that unjustifiable limitation also amounted to the violation of their right to non-discrimination, the right to information, the right to benefit from scientific progress and was a violation of their consumer rights.

On the issue whether the circumstances of JMM qualified her for post-abortal care under Article 43, the Court held that a holistic reading of the said Article together with the Health Act lead to the conclusion that JMM was clearly entitled to emergency treatment including post-abortal care. It was the view of the court that all persons who are in need of treatment are entitled to health care, and it matters not the circumstances under which they find themselves in those situations.

On the issue whether PKM as the personal representative of the estate of JMM was entitled to comprehensive reparation, including indemnification for material and emotional harm suffered as a result of the actions of the respondents. The court held that PKM as the personal representative of the estate of JMM is entitled to comprehensive reparation including indemnification for material and emotional harm suffered as a result of the actions and omissions of the respondents.

 

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