Betty Muindi @BettyMuindi
The landmark ruling delivered by a five-judge bench yesterday has been applauded by civil society, saying it will go a long way in reducing maternal deaths.
A verdict by Justices Aggrey Muchelule, John Mativo, Lydia Achode, George Odunga and Mumbi Ngugi sought to respond to calls for the Ministry of Health to reinstate the 2012 Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya and the National Training Curriculum for the Management of Unintended, Risky and Unplanned Pregnancies.
“Today’s ruling is a commendable move towards a more humane, compassionate and rights-based approach to the reproductive health of women and adolescent girls,” said Trust for Indigenous Culture and Health (TICAH) deputy director Jade Maina in a statement yesterday.
In the statements from various civil societies, Maina said the court’s reinstatement of guidelines holds the State to its obligation of ensuring women and girls have the highest attainable standard of health as guaranteed in the Constitution. “The (standards and guidelines 2012), were developed to standardise services and improve the knowledge and skills of health care providers,” the statement read.
The Director of Medical Services in December 2013 arbitrarily withdrew the standards and guideline and issued a circular to stop the training of medical providers on how to offer safe abortion services. The reinstatement will also allow health care workers to exercise their constitutional mandate pursuant to Article 26(4), which explicitly allows medical services providers to provide safe abortion when the health/life of the woman is in danger, in cases of emergency or under any other written law.
In the judgement, Justice Mumbi said the guidelines were public policy documents that passed through a process of public participation. The withdrawal should have followed the same procedure.
“It’s not the cause of pregnancy, but effect of it that determines whether abortion is permitted. If a trained health practitioner finds that a pregnancy from rape or incest interferes with the mental, social or physical well-being of woman, abortion is allowed,” she ruled.
The Centre for Reproductive Rights filed the case against the Attorney General, the Ministry of Health and the Director of Medical Services on behalf of the Federation of Women Lawyers Kenya, two community human rights mobilisers, an adolescent rape survivor suffering from kidney failure and other health complications due to an unsafe abortion and on behalf of all Kenyan women of reproductive age.