Implementing the
Reproductive health Provisions
of the Kenya Constitution
The Role of the Medical Fraternity
Presented at the
Kenya Medical Association Scientific Conference
Merica Hotel, Nakuru, April 27- 30, 2011
by
Professor JKG Mati
Mua Hills, Machakos
Outline of Presentation
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Introduction
Scope of roles of Medical Fraternity
Implications of Art.26(4) to provision of safe
abortion services
Questions arising from Art 26(4)
Access barriers to legal safe abortion
Time for a paradigm shift
Conclusions
Provisions in Art 43 (1) of the
Constitution of Kenya
Every person has the right—
(a) to the highest attainable standard of health, which
includes the right to health care services, including
reproductive health care;
(b) to accessible and adequate housing, and to reasonable standards of
sanitation;
(c) to be free from hunger, and to have adequate food of acceptable
quality;
(d) to clean and safe water in adequate quantities;
(e) to social security; and
(f) to education.
Other constitutional guarantees that are
relevant to health care, (besides Article 43
(1) (a)
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Commitment to nurturing and protecting the well-being of
the individual, the family, communities and the nation
(Preamble).
Implementation of international/regional conventions and
commitments (Art. 2 (6))
Respect and protection of dignity for every person (Article
28)
Equality and freedom from discrimination (Article 27)
Emergency medical treatment (Article 43 (2))
Health Professionals at all levels have key
roles to play in implementation of health
provisions in the Kenya Constitution:
These roles include:
 Guiding making and/or updating of laws and
policies to reflect new provisions
 Defining and/or interpreting provisions w.r.t.
improved access to quality health care
 Ensuring health planning and provision observe
principles enshrined in Constitution: human rights,
equality, equity, dignity and freedom from
discrimination.
Health policies and strategies
Need to review/update current policies and strategies
to reflect constitutional provisions related to RH,
these include:
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National Health Sector Strategic Plans
National RH Policy
National RH Strategy
National Road Map for accelerating the attainment of
MDG4,5 in Kenya
etc.
Implications of constitutional guarantees to
RH programming
Examples
 Access to RH information and services is a right for all
 Access to quality RH services is a right for all
 Provision of RH services must respect the dignity of every
person
 Planning of RH services must observe principles of
equality and freedom from discrimination
 State has responsibility to ensure access to adequate health
care by all including the poor and marginalised groups
Right to life
Article 26
On The Big Debate
NEW ABORTION LAW IS STILL BAD
FOR WOMEN
Whichever way the referendum will go, abortion may
still be the only birth control option available since
many [women] lack access to contraception
Japheth Mati in STAR Thursday 29 April 2010
Article 26:
(1) Every person has the right to life.
(2) The life of a person begins at conception.
(3) A person shall not be deprived of life intentionally, except to the extent
authorised by this Constitution or other written law.
(4) Abortion is not permitted unless, 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.
Implications of Art.26(4) to provision
of safe abortion services
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Art 26(4) implies constitutional recognition of
legal abortion in Kenya, even though under
certain specified conditions.
Health providers have responsibility to ensure
women have access to what they are legally
entitled.
Note: Art 26(4) specifies “life or health” as
grounds for legal abortion; this has expanded
access to legal abortion beyond what existed in
Penal Code Section 240, i.e. “life” only.
A number of questions arise from Art 26(4)
1.
2.
3.
4.
5.
6.
Who is a trained health professional?
What constitutes danger to life or health of the mother?
At what stage is emergency treatment mandatory?
What definition of ‘health’ is implied, is it WHO’s?
Is there a need for a list of conditions (or situations) that
may necessitate emergency treatment?;
etc.
Concerns regarding lists
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Lists may provide examples of conditions that are
considered life-threatening, but must not preclude
a doctor’s clinical judgment.
There is risk of Lists being interpreted
restrictively, or be considered exhaustive, when in
fact they cannot be.
Who among these is implied in “trained
health professional”?
Obstetrician Gynaecologist?
Registered medical practitioner?
Registered Clinical Officer?
Registered Nurse?
Registered Midwife?
Any health worker trained to competency?
All of the above?
Beware, Medical Guidelines may obstruct
rather than facilitate access to legal safe
abortion:
Current MPDB guidelines on abortion state:
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“…. it is strongly advised that the practitioner consults
with at least two senior and experienced colleagues,
obtains their opinion in writing and performs the
operation openly in hospital if he considers himself
competent to do so in the absence of a Gynaecologist”.
NOTE:
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(ii)
MPDB does not restrict TOP operation to gynaecologists
only;
One of the two colleagues is often a psychiatrist- usually
to establish risk to life
MPDB guidelines that may obstruct access
to safe abortion services:
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Consulting at least two senior and experienced
colleagues- how feasible in rural areas?
Restricting abortion procedures to hospitals- TOP
often an OP procedure, and not always surgical!
Psychiatric assessment- how available is a
psychiatrist? fear of psychiatric label; expensive,
causes delay
Provision of ‘safe abortion’ services
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WHO defines ‘safe abortion’ services as those
provided by trained health workers using proper
equipment and correct techniques, and supported
by policies, regulations and a functional health
infrastructure, including equipment and supplies.
Conditions for providing ‘safe abortion’
services within the law
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Requirements of Article 26(4) are met
Conditions for WHO definition of ‘safe abortion’
are satisfied
Under such scenario termination of pregnancy is a
legal safe medical procedure
“Unsafe abortion” implies termination of
pregnancy outside above conditions
Factors behind denial of abortion
services to women who are legally
entitled to them:
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Provider related factors:
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Ignorance of the law, negative attitudes and
biases, and conscientious objection
Lack of trained workers; and/or appropriate
facilities
Note: Service providers have ethical and legal obligations
to provide women in need of abortion with appropriate
information on where safe services may be obtained.
Factors behind denial of safe abortion
services to women who are legally
entitled to them cont’d.
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Medical policies and practices:
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Insistence on unnecessary procedures/practices
Opposition to task-shifting, and other regulatory
bottlenecks
Community related factors:
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Lack of awareness about facilities providing legal
abortion services
Lack of awareness (among women) of need to report
early in pregnancy
Is it time for a paradigm shift?
Attitudes of health workers towards women
who seek TOP require a paradigm shift:
 FROM that of deep-rooted suspicion TO one of
considerate review of all evidence present in order
to ensure women are not denied safe abortion
services to which they are legally entitled.
 This is a right provided for under Art 26 (4) of the
Kenya Constitution.
Conclusions
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The Constitution of Kenya provides opportunities for
enhancing health, including RH and rights of Kenyan
women
The Constitution of Kenya has established the entity of
legal abortion, under certain specified conditions
Health care providers must familiarise themselves with
these constitutional provisions for effective
implementation of quality RH services, and to avoid
unwarranted access barriers to services that are legally
sanctioned.
Conclusions
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The relevant regulatory authorities and
professional bodies have a responsibility to ensure
their members are well updated on the RH
provisions in the Constitution.
The medical fraternity has a responsibility to
advocate for equitable access by all women to
quality RH services, and to promote positive
policies which eliminate unnecessary access
barriers to legal safe abortion services.