Network for Adolescent and Youth of Africa (NAYAKenya) & Another v. Attorney General & 4 Others (Nairobi High Court Petition No. 428 of 2018; Marie Stopes Kenya)
This case challenges three Kenyan public institutions’ prohibition on Marie Stopes Kenya (MSK) providing post-abortion care services.
Status: On December 21, 2018, Kenya’s Ministry of Health lifted the ban that had barred Marie Stopes Kenya (MSK) from providing post-abortion services for those who had legal abortions. After an audit of MSK, the government determined the organization was not violating any laws, but ordered that MSK be under “regular supervision” going forward.
Health Care is a Right Under the Kenyan Constitution
The 2010 Kenyan Constitution states that health care is a fundamental right, including access to reproductive and emergency health care services. The Constitution provides the right to access abortion when there is need for emergency treatment or the life or health of the pregnant woman is in danger, according to the opinion of a trained medical professional.
Contrary to the Constitution’s protections, Kenya’s 1963 Penal Code continues to criminalize all abortion care, leaving abortion and post-abortion services unattainable, even for emergencies. Unsafe abortions are routinely performed, resulting in high rates of maternal morbidity and mortality. Severe complications from these unsafe abortions are most common in women 19 years old and younger. Unsafe abortion ranks among the five leading causes of maternal deaths and injuries in Kenya.
Case Background
Marie Stopes Kenya is a nonprofit organization that operates clinics across Kenya, providing reproductive health services in collaboration with the government. Starting on August 22, 2018, MSK partnered with Radio Africa Group to launch a nine week public awareness campaign about reproductive health with the goal of reaching young women and girls to educate them about the dangers of unsafe abortions. The campaign, which included sharing data on the mortality rate of unsafe abortions and the possible health outcomes, also addressed the stigma and discrimination of abortions. Listeners were directed to call MSK’s helpline if they were in crisis.
On September 11, 2018, the Kenya Film and Classification Board (KFCB) ruled that the campaign was promoting abortions and therefore in violation of Article 26(4) of the Constitution.
The Kenya Medical Practitioners and Dentist Board (KMPDB) banned MSK from providing any type of abortion or post-abortion services as well as continuing the radio campaign on November 5, 2018. KMPDB said it had not approved the MSK campaign and claimed it was spreading false information about abortions. Shortly thereafter on November 20, 2018, the Director of Medical Services also issued its own ban on MSK and ordered the organization to delete all abortion-related information from its website, ruling that to be an advertisement for abortions and a violation of the KMPDB ban.
On November 30, 2018, the Center, representing Network for Adolescent and Youth of Africa (NAYA-Kenya) and Jackline Karanja, filed this case against the Ministry of Health, the KMPDB and KFCB, the three public institutions which prevented MSK from providing information about unsafe abortions to young people and adolescents online or via radio.
The case did not seek to introduce any new ground for access to abortion but for full implementation of Article 26 (4) of the Constitution and stopping public institutions from wrongfully limiting the rights of citizens protected in the constitution without justifiable grounds or due process.
The lawsuit requests the court to:
- Rule whether the decisions of the DMS, KFCB and KMPDB were constitutional and/or violated the rights of those of reproductive age
- Overturn the decisions of the DMS, KFCB AND KMPDB to ban MSK from providing abortion information and services.
- Rule that government agencies cannot interfere with the provision of accurate information and lawful healthcare services
- Issue an order restricting government agencies from issuing misleading information on abortion statistics and access
- Issue an order compelling the Ministry of Health proactively and fully disclose accessible information to the public on abortion and accessing abortion services
The Ruling
The Ministry of Health then conducted an audit of MSK operations and clinics. On December 21, 2018, the Ministry lifted the ban on MSK after determining the campaign was not in violation of the Constitution. MSK was allowed to resume providing post-abortion care services in its 23 clinics around the country.
Plaintiff: Marie Stopes Kenya, Network for Adolescent and Youth of Africa (NAYA-Kenya) and Jackline Karanja
Respondent: The Kenya Ministry of Health, the Kenya Medical Practitioners and Dentists Board, (KMPDB) and Kenya Film and Classification Board (KFCB).
Center Attorney: Sofia Rajab-Leteipan of Leteipan & Associates Advocates
Timeline:
| September 11, 2018 | Kenya Film and Classification Board (KFCB) rules that MSK’s public awareness campaign was promoting abortions and therefore in violation of Article 26(4) of the Constitution. |
| November 05, 2018 | Kenya Medical Practitioners and Dentist Board (KMPDB) bans MSK from providing any type of abortion or post-abortion services as well as continuing the radio campaign. |
| November 20, 2018 | Director of Medical Services issues its own ban on MSK and orders the organization to delete all abortion-related information from its website. |
| November 30, 2018 | The Center files a lawsuit on behalf of the Network for Adolescent and Youth of Africa and Jackline Karanja to affirm the right of Marie Stopes Kenya to provide post-abortion care services in cases of emergency abortions, per the constitution. |
| December 21, 2018 | After an audit of the clinics had been completed, the Kenyan Ministry of Health declares that Marie Stopes can resume post-abortion care services under “regular supervision.” |
Legal documents:
High Court of Kenya in Nairobi Petition No. 428 of 2018 Ruling, 10.17.19
