Update, 02.23.24: In a significant victory for all Kenyans, the Court of Appeal of Kenya dismissed the appeal and affirmed the right to respectful maternal health care under the Kenyan Constitution. Read about the Court of Appeal’s decision here.

Summary

The Center for Reproductive Rights filed a case in 2014 on behalf of Josephine Majani, a Kenyan woman who was denied maternal care and abused by hospital staff during her labor and delivery.

In 2018, the High Court of Bungoma issued a landmark judgment in the case, Josephine Oundo Ongwen v. the Attorney General and 4 Others (Bungoma High Court Petition No. 5 of 2014), recognizing that the neglect and physical and verbal abuse of women seeking maternity health services constitute a violation of rights as guaranteed by the Constitution of Kenya as well as international human rights instruments. The Court ruled that Bungoma County Hospital, the Bungoma County government, and the Cabinet Secretary of Health had violated Josephine’s rights when she was denied quality maternal health care and was abused by hospital staff.

In 2018, the County Government of Bungoma appealed the High Court’s judgment to Kenya’s Court of Appeal in County Government of Bungoma & 2 others v. Josephine Oundo Ongwen (a.k.a. Josephine Majani) & 2 Others (Kenya Civil Appeal No. 61 of 2018).

In February 2024, the Court of Appeal of Kenya issued a sweeping decision affirming the right to respectful maternal health care and the 2018 judgment by the High Court.

About the case

The case, Josephine Oundo Ongwen v. The Attorney General and 4 Others (Bungoma High Court Petition No. 5 of 2014), was brought in 2014 by the Center for Reproductive Rights on behalf of Josephine Majani.

In August 2013, Josephine Majani, a woman from a low-income background, was admitted to the Bungoma County hospital for an induced labor. Despite a national directive instructing all public health care facilities to offer free maternity health care services as of June 1, 2013, Josephine had to purchase the medicine necessary to induce her labor. After taking the medicine, she was not physically checked or monitored by any of the nurses and was informed that if she needed medical attention, she would have to walk from the labor ward to the delivery room herself.

Josephine walked unaided to the delivery room where she discovered that all the beds were occupied. While attempting to return to her bed in the labor room, she collapsed and gave birth on the floor. On finding her there unconscious, two nurses repeatedly slapped and verbally abused Josephine in anger because she had dirtied the floor when she delivered her baby.  Once conscious, she was ordered to walk to the delivery room, still unaided, to be examined. She was released with her baby the following day, and suffered severe emotional trauma as a consequence of her treatment. Josephine’s treatment at the hands of staff at the Bungoma County Hospital received widespread media coverage in part because evidence of the abuse was caught on camera by another patient.

Unfortunately, Josephine’s story is not unique, save for the fact that her abuse was captured on video and subsequently aired on national television, sparking a national outcry. According to the Ministry of Health, poor quality of care was identified in the care of 92.4% of women who died in the hospitals involved in the Confidential Inquiry into Maternal Deaths in Kenya in 2014. According to the report, improving the care for 88.1% of the women who died could have resulted in a better outcome.

The Constitution of Kenya guarantees every person the right to the highest attainable standard of health, which encompasses the right to health care services, including reproductive health care. In 2013, operationalizing the constitutional right to reproductive health care, President Uhuru Kenyatta issued a directive stating that free maternity services would be provided in public health facilities. Additionally, a patient’s charter was established which recognizes an individual’s right to the highest standard of health, the right to emergency treatment, and the entrenchment of a provision on dispute resolution.

Despite a robust legal framework on reproductive health care, the quality of Kenya’s maternal care, especially with respect to labor and delivery, is dismal. According to a report by the Kenya National Commission on Human Rights, inadequate resources, insufficient infrastructure, and lack of physical access to health care facilities adversely impact maternal health care services. In addition, abuse and neglect in Kenya’s delivery and postnatal health care is systemic and widespread.

About the ruling

In bringing the case, the Center argued that:

• The 2010 Constitution of Kenya states that every person has a right to the highest attainable standard of health, which includes access to quality reproductive health care, including maternal care. The abuse, mistreatment, and denial of care experienced by Majani violated the Kenyan Constitution and her fundamental human rights.
• The hospital also violated the 2013 presidential directive instructing public health facilities to offer free maternity health services.
• The court should uphold the rights of all pregnant women in Kenya and hold the government accountable for violating its obligations under the Constitution.
• The national and county governments must ensure that Kenyan women have access to affordable, acceptable, available, and quality maternal health care. 

On March 22, 2018, the High Court of Kenya in Bungoma issued a landmark judgment, finding that Bungoma County Hospital, the Bungoma County government, and the Cabinet Secretary of Health had violated Josephine’s rights when she was denied quality maternal health care and abused by hospital staff. Additionally, it recognized that the neglect and abuse of women seeking maternity health care services constitute a violation of rights as guaranteed by the Constitution of Kenya and international human rights law.

In its ruling, the High Court:

• Declared that the physical and verbal abuse experienced by Josephine amounted to a violation of her right to dignity and her right to not be subjected to cruel, inhumane, and degrading treatment.
• Found that the National and Bungoma County Governments failed to implement and monitor the standards of free maternal health care and services, thus resulting in the mistreatment of Josephine.
• Awarded Josephine KES 2,500,000 in damages for the harm she suffered.
• Emphasized the need to develop and implement policy guidelines so that quality and accessible health care services are available to all Kenyans, especially in the context of maternal health care.

About the appeal

Dissatisfied with the decision of the High Court, on May 2, 2018, the County Government of Bungoma appealed the entire judgment to the Court of Appeal of Kenya, the country’s second highest court. In its appeal, the County argued there was no evidence that the County had violated Majani’s rights—despite video and eyewitness accounts clearly documenting the abuse—and challenging the financial renumeration awarded for damages.  

The Court of Appeal heard arguments challenging the judgment on June 14, 2023. The Center argued:

• This case is about the right of all Kenyan women to give birth in a safe, respectful and supportive health care setting, free from discrimination and abuse. Already affirmed by the courts of Kenya, this right must be upheld by the Court of Appeal.
• Systemic denial of quality maternal health in Kenya is a violation of the Kenyan Constitution and international human rights.
• The Court of Appeal must hold the government accountable for violating its constitutional obligations to guarantee safe, quality maternal health care.
• As Kenya’s second highest court, the Court of Appeal sets precedent and gives guidance to lower courts, adding weight to this judgment.
• While incremental improvements have been made in access to health care in Kenya in recent years—in part due to favorable court decisions—negligence and lack of access still exist.
• Nearly 5,000 women still die each year in Kenya due to complications in pregnancy and childbirth, but an estimated 80% of those deaths are due to poor quality care.

Continuing to represent Josephine, the Center argued that the High Court of Kenya correctly ruled in 2018 that Josephine’s constitutional and human rights were violated and it urged the Court of Appeal to uphold that decision and affirm Josephine’s right to respectful and safe maternal health care.

On February 23, 2024, the Court of Appeal issued a sweeping decision affirming the right to respectful maternal health care and upholding the 2018 High Court judgment defending the human rights of Majani. “Health care settings across the country take note: Abuse, denial of care, and discrimination in maternal health care is a grave violation of rights and will not be tolerated in Kenya,” said Salima Namusobya, the Senior Regional Director at the Center in Africa.

In its decision, the Court of Appeal:

• Affirmed the High Court’s 2018 decision holding that the national and county governments had violated Majani’s rights to health, dignity, and freedom from cruel, degrading inhuman treatment and awarding Josephine damages for the harm suffered.  
• Dismissed the Appeal as meritless. 
• Held that appellants were directly liable for the violations against Majani and for failing to implement policies promoting respectful maternal care.  
• Emphasized that human rights-based maternity care, as stipulated in the Kenya Constitution, includes ensuring positive and affirming care experiences for women during childbirth, encompassing dignified, respectful healthcare and freedom from violence and discrimination.  
• Underscored the obligation of health systems to respect women’s sexual and reproductive health rights, including their right to dignity, which would entail adopting specific policies for respectful maternal care and ensuring their meaningful implementation.  
• Noted that health systems must be held accountable for mistreatment during childbirth and failure to prevent such practice and underscored the government’s obligation to ensure functional healthcare systems. 

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