Network for Adolescent and Youth of Africa (NAYA-Kenya) & Another v. Attorney General & 4 Others (Nairobi High Court Petition No. 428 of 2018)
This case challenges institutional stigma against the provision of abortion information and services in Kenya.
Summary: In August 2018, Marie Stopes Kenya (MSK) in collaboration with the Ministry of Health (MOH) embarked on a nine-week public awareness campaign on abortion. Between September and November 2018, various government agencies including the Kenya Film Classification Board (KFCB) and the Kenya Medical Practitioners and Dentists Board (KMPDB) directed MSK to end the campaign and immediately cease offering any form of abortion services in all its facilities. Additionally, the Director of Medical Services (DMS) banned MSK from providing any form of post-abortion care (PAC) in all its facilities within the Republic of Kenya.
On December 19, 2018, Kenya’s Ministry of Health lifted the MSK ban on post-abortion service. 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.
Between November 23, 2020, when the case first came up for hearing, and November 5, 2023, the matter did not proceed due to various reasons including interlocutory applications due to a related case and the trial judge’s transfer. On November 5, 2023, the court directed that parties hear the case by way of written submissions. The case is set for a mention on February 14, 2024, and a hearing date will be confirmed then.
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, according to the opinion of a trained health professional, there is need for emergency treatment or the life or health of the pregnant woman is in danger or when allowed by any other written law. The law, including the Constitution and the Health Act No. 21 of 2017, places an obligation on the government to make available reproductive health information and services to citizens, including on abortion access.
Contrary to the Constitution’s protections, Kenya’s 1963 Penal Code continues to criminalize all abortion care, leaving abortion and post-abortion services inaccessible, 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
On or around August 22, 2018, MSK, a nonprofit organization, embarked on a nine-week public awareness campaign (“Campaign”) on comprehensive reproductive health services, undertaken in conjunction with the Radio Africa Group. Among other things, the Campaign aimed to highlight the statistics and dangers of unsafe abortion, abortion stigma, and discrimination of women and girls who have undergone unsafe abortions.
Three weeks after the Campaign started, the Chief Executive Officer (“CEO”) of the KFCB banned the Campaign on allegations that it “clearly promotes abortion contrary to Article 26(4) of the Constitution of Kenya, and targets teenage girls by giving them alternatives to unwanted or unplanned pregnancies.”
KFCB alleged that MSK had contravened the Communication Authority of Kenya’s Programming Code for Free-to-Air Radio and Television Services.
On November 5, 2018, the CEO of the KMDPB summoned MSK to appear before the Board on November 7, 2018. On November 10, 2018, KMPDB issued an order (among others) directing MSK to immediately cease offering any form of abortion services in all its facilities within the Republic of Kenya.
On November 20, 2018, the DMS further banned Marie Stopes from providing any form of PAC in all its facilities within the Republic of Kenya. On December 19, 2018, the PAC ban was subsequently withdrawn by the DMS.
Why this case matters:
The latest study on incidents of unsafe abortion in Kenya shows that an average of seven women die daily from unsafe abortions, with severe complications of unsafe abortions most common among women aged 19 years or younger. These facts make it imperative for any responsible government to develop programs that target this category of persons, including through information that reduces stigma and prevents unsafe abortions.
What this case is about:
- This case is about the responsibility of the government of Kenya to proactively make healthcare information and services available and accessible without stigma.
- It challenges the blanket limitation of constitutionally guaranteed healthcare services without justification and seeks to hold the institutions and the individuals responsible for their violation of the rights of women and girls.
- It confronts practices that perpetuate the chilling effect created by unreasonable restrictions on access to abortion information and services, which deters women and girls from seeking evidence-based care within the law from trained health professionals in line with the Constitution.
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 to proactively disclose information to the public on abortion and accessing abortion services.
- Declare that the bans undermine the petitioners, women, and girls’ constitutional rights by denying them access to information and abortion services as permitted by the Kenyan Constitution.
- Declare that the public officials’ actions constitute violations of fundamental human rights protected under the Kenyan Constitution and they should be declared unfit to hold public office.
Petitioners: Network for Adolescent and Youth of Africa (NAYA-Kenya) and Jackline Karanja
Respondents: The Ministry of Health, the Kenya Medical Practitioners and Dentists Board (KMPDB), the Attorney General, and the Kenya Film and Classification Board (KFCB)
Center Attorneys: Martin Onyango, Prudence Mutiso and Timothy Thondu
Timeline:
| September 11, 2018 | The Kenya Film Classification Board (“KFCB”), through a widely publicized notice, unilaterally and arbitrarily bans the public awareness campaign on allegation that it promotes abortion contrary to Article 26(4) of the Constitution of Kenya and targets teenage girls by giving them alternatives to unwanted or unplanned pregnancies. |
| November 14, 2018 | The Kenya Medical Practitioners and Dentists Board (“KMPDB”) CEO, through a widely publicized decision of the board, unreasonably directs Marie Stopes to immediately cease offering any form of abortion services in all its facilities within the Republic of Kenya. |
| November 20, 2018 | The Director of Medical Services (“DMS”), through a widely publicized letter, unlawfully bans Marie Stopes from providing any form of post-abortion care (“PAC”) in all its facilities within the Republic of Kenya. |
| November 30, 2018 | The Center files a lawsuit on behalf of the Network for Adolescent and Youth of Africa and Jackline Karanja, on their own behalf and in the interest of the public, to challenge the limitation of access to abortion information and services in Kenya by KFCB, KMPDB and the Ministry of Health. |
| December 21, 2018 | The post-abortion care ban is withdrawn by the DMS in a letter to Marie Stopes dated December 19, 2018. The letter also reiterates that all other orders contained in the KMPDB remain intact. |
