MADISON, Wis. — While the Kenyan Constitution, passed a decade ago, enshrines reproductive rights for the country’s citizens, there is still no law that provides guidance on how to protect and advance these rights.
In 2014, a reproductive health bill was presented for a parliamentary vote. The bill would have provided some much-needed guidance on protecting reproductive rights. It would have also made prenatal and delivery services free but failed because of misinformation — a fixation on the sections about abortion and access to contraception for adolescents. Now, the bill has reemerged, and the Senate could call it for a vote in the coming weeks. But it is still surrounded by similar controversies.
Devex spoke with Stephanie Musho, a Nairobi-based expert in gender and reproductive justice and a human rights lawyer, about the bill's criticisms, as well as the important measures it includes.
This conversation has been edited for length and clarity.
What are the controversies around this bill?
A lot of critics of this bill say it's an abortion bill. Kenya has a lot of cultural and religious dogma at play. Abortion is only one clause of the bill. … It's not talking about abortion in any stronger terms than is already provided for in the constitution. Under the bill, abortion remains unpermitted, except in three cases: in the case of emergency treatment, in the case where the life or the health of the pregnant woman is at risk, or in the event that the unborn child is likely to suffer severe physical or mental deformities.
“Data shows that Kenyan teenagers are already engaging in a lot of sex. … It's very important that those teenagers have the correct information and that they have access to services .”— Stephanie Musho, a human rights lawyer and expert in gender and reproductive justice
It says that if a health care provider has any conscientious objection to performing the termination, in nonemergency cases, they should refer the pregnant woman to another health care provider who is willing to perform the abortion. So, in that sense, this bill will not force any health care provider to conduct an abortion.
Those opposed to the bill are making it look like a woman will be able to walk in, freely, into a public health care facility and ask for an abortion. The public hasn't read the bill. They have been told that it's an abortion bill and they have totally shut off from it without going further and finding out what exactly this bill talks about.
Data gathered by the International Rescue Committee in northern Kenya adds weight to fears that school closures and lockdowns have led to a surge in early and unintended pregnancies.
When we passed the constitution, the Ministry of Health put out standards and guidelines for safe abortions for these three instances where abortion is permitted. However, they withdrew those guidelines, and civil society had to go to court. The court reinstated the standards and guidelines on safe abortion.
However, 15 months after the ruling, the Ministry of Health has not issued any directive as to what should happen when a woman needs an abortion in these three instances. Health care providers don't have the training on safe abortions and they don't want to perform abortions because there's no clarity around it. They need a memo of some sort giving them permission from the ministry and instructions on how to conduct abortions, and they also need reassurance that there are no repercussions if they provide abortions.
In practice, it's just very shaky, and women continue to die just because there's so much confusion around this issue.
Who exactly is in opposition?
A lot of the opposition is coming from religious groups, mostly led by the Catholic Church.
What other reproductive health issues are included in the bill?
The bill outlaws forced sterilization. In this country, women — particularly those living with HIV — have been forcefully sterilized because of the thinking of certain health care providers who feel this is the best way to stop the transmission of the virus from mother to child, even though we know that women living with HIV, for the longest time, have been able to get pregnant, carry the babies to term, and give birth without transmitting the virus.
The reproductive health bill also makes prenatal, delivery, and postnatal services free for every woman in this country. The national government, under this bill, has an obligation to provide resources, both human and financial, to the county health systems.
Opponents also say this bill is going to increase promiscuity among the youth. This couldn't be further from the truth. Data shows that Kenyan teenagers are already engaging in a lot of sex. … It's very important that those teenagers have the correct information and that they have access to services so that they can make informed decisions and can protect their futures. We need to keep our girls in school.
This bill does exactly that. It gives them access to reproductive health services, including information and access to contraception. This is the biggest issue for critics of the bill because they say they shouldn't have contraception.
The Kenya National AIDS Control Council has drawn on religious texts to help faith leaders deliver science-based messages about HIV prevention, treatment, and stigma to their congregations.
The bill promotes the right to privacy and the right to consent. When you look at patients who have mental health disorders, a lot of times, decisions are made for them. … With depression, for example, you're able to give consent, but if it's very severe, then the bill says that consent has to come from the spouse, parent, or the next of kin. We are not just going to make decisions for people about their bodies just because they have mental health conditions.
It also protects the rights of children. … In the Births and Deaths Registration Act, for a father to be entered in the register as a child's father, he has to be married to the mother. ... This bill seeks to delete that section of that act and protect children who have been disinherited or have been relegated to the periphery.
Where does this bill stand in the legislative process in Parliament?
They debated the bill already. Now, when it comes up on the floor of the Senate, it’s for a vote.
Do you think it will pass?
If you look at the attempt for a reproductive health law in 2014, this time around, I think the chances are better. I've heard some interviews on radio and on TV, and people are actually very interested. They had just closed their minds because they were told it’s an abortion bill, but once you start breaking it down, people are taking interest. And that is very encouraging.