Abortion Rights and Realities in Kenya: The Constitutional Debate
FRIDAY FILE: Abortion rights currently dominate the constitutional reform debate in Kenya. What is the reality of abortion in the country?
By Kathambi Kinoti
Ever since the pro-democracy movement in Kenya gained momentum in the 1980s, the constitution has been an explosive issue in the country’s politics. Successive presidential and parliamentary candidates have made it a campaign issue, but due to a mix of ethnic, political and ideological factors, the constitution has never been overhauled. The last draft constitution was defeated in a referendum in 2005.
The current constitution gives the President excessive powers which have been abused by holders of the office. Reform advocates want these powers better spread or monitored among the three branches of government. They also criticise the land dispensation system in the constitution, and this is a critical issue in Kenya’s predominantly land-based culture and agriculture-based economy with its high population of peasant farmers. The constitution is also faulted for the inferior citizenship rights that it confers on women, and for not entrenching affirmative action despite previous political commitments. Though there are references to equality and non-discrimination in the current constitution, they could be stronger and more specific. And they are in the proposed new constitution.
Abortion rights in contention
Now Kenya stands on the brink of a new constitutional order and an issue that was never a contentious issue in the decades of work on constitutional reform has been brought to the fore:abortion rights.
Like the current constitution, a draft produced in late 2009 by a Committee of Experts[i] secured the right to life in the Bill of Rights. Religious groups, not satisfied with this provision demanded that a clause be added to specify that life begins at conception. The Committee made this alteration and went ahead to add that abortion would only be permitted if in the opinion of a registered medical practitioner a pregnant woman’s life is in danger. Now some religious leaders – mainly Catholics and evangelical Christians - are campaigning for a total rejection of the draft constitution because it ‘will legalise abortion.’
Although Kenya’s current constitution does not address abortion, its criminal laws prohibit abortion on demand. Only in cases where a woman’s life or health is severely threatened can a doctor determine to carry out an abortion. This exception to the restrictive laws is contained in both statutory and case law. Therefore the proposed constitution simply reflects what is already the legal situation in Kenya; abortion is illegal except in a few cases. It is not clear why the religious leaders oppose the provision in the proposed constitution when they have never challenged the identical laws that have existed for almost fifty years. Abortion – though an important issue - is really a non-issue in relation to the constitution, because the draft doesn’t propose to extend abortion rights, and because in any case, this is not the business of the constitution. It is the business of ordinary legislation which already says something on abortion rights.
Women’s rights advocates and health workers are calling not only for the existing limited abortion rights to be preserved, but for the full legalisation of abortion. The position of the law doesn’t begin to tell even a fraction of the story of abortion in Kenya. Illegal or not, women elect to have abortions every day of every year.
According to “In Harm’s Way,”[ii] a report by the Center for Reproductive Rights, at least 2,600 women die annually from unsafe abortions in Kenya and 21,000 more are hospitalised for post-abortion complications. These figures reflect only reported cases; not all abortion-related deaths are recorded as such, nor do all those who develop complications visit health facilities. The fact is that girls and women who can afford to have abortions do so at well-equipped health facilities whether or not it is a criminal offence. Those who cannot afford the services of a gynaecologist have abortions in the backstreets, or do it themselves by inserting crude objects into their uteruses, drinking bleach or overdosing on malaria tablets. The majority of these women are young. A 2002 study in one province in Kenya found that 51 per cent of patients with post-abortion complications were under the age of 20.
The toll on Kenya’s already strained public health care system is heavy. Sixty per cent of the resources of the maternity ward of Kenyatta National Hospital, the country’s national public hospital, are taken up by post-(backstreet) abortion care. Not all women, however, have access to hospitals and many do not seek help for abortion complications for fear of stigma or prosecution. As a result they suffer in silence or die. Kenya’s restrictive abortion laws contribute to its high maternal mortality rate. Out of all the pregnancy and delivery related deaths, 35 per cent are abortion-related. The worldwide rate of abortion-related maternal mortality is 13 per cent.
Cocktail of factors
Poor sex education (or none at all), low levels of contraceptive use and high rates of sexual violence all contribute to women’s abortion-related deaths or illnesses. Although some non-governmental organisations provide sex education for adolescent girls and boys, overall the quality and quantity of information provided to this growing sector of the population is poor. Young people who seek condoms and other forms of contraceptives report encountering negative judgmental attitudes from health care professionals at public- and some private - health facilities. Often these professionals refuse to provide emergency contraception or post-abortion care to women. Sometimes it is out of fear: they think they might be prosecuted for assisting women and girls after they have procured illegal abortions. The law doesn’t criminalise post-abortion care. Sometimes it is out of moral judgement that these healthcare providers turn women and girls away. While contraceptives are readily available in private pharmacies, they are often out of stock in public health facilities which have a wider reach throughout the country and charge much less.
Some pregnancies result from rape, a daily reality in Kenya, and in moments of crisis, such as the post-election conflict in 2007/8, cases of rape increase exponentially. Yet the most vocal voices against liberal abortion legislation are not as vocal against sexual violence. Kenya’s Ministry of Health policies permit abortion in cases where women or girls have been raped and the Medical Board has similar guidelines. This information is not publicised and so many people do not know about these policies.
Church leaders are mobilising their considerable flocks to vote “no” in the upcoming referendum on the proposed constitution. Even if it doesn’t pass, abortion will continue to happen legally and illegally, safely and unsafely. Although the provision on abortion rights in the draft constitution is hardly progressive, it does solidify some limited rights that already exist in statutory and case law, and policy guidelines. But there are numerous other potential gains for women in the draft constitution which will be lost if the country votes “no.” It will be tragic if a non-issue is allowed to dominate the debate on “yes” or “no.”
[i] The Committee of Experts was tasked to harmonise the perspectives and opinions of Kenyans reflected in the various draft constitutions that have been drawn over the years.
[ii] Centre for Reproductive Rights: In Harm’s Way: The Impact of Kenya’s Restrictive Abortion Law. CRR, 2010: New York.