NEWSLETTER May 2023
“We need to be bold” – assert the Kenyan feminists determined to expand access to safe abortion
Of the nearly 6,000 women and girls who die of pregnancy-related causes in Kenya each year, 2,500 perish after an unsafe abortion—usually after they see an unqualified quack or try to self-induce with sharp objects or by ingesting dangerous substances (bleach or detergent, for example). A study conducted by the African Population and Health Research Center (APHRC) found that, of the approximately 464,000 women who had an abortion in 2012 in Kenya, close to 120,000 had to be admitted to public hospitals for severe complications from unsafe procedures, at a staggering cost of $US 5 million a year. Even today, with access to abortion improving, 21,000 women and girls are admitted every year for severe complications of unsafe abortion. Better, but still bonkers!
These deaths are completely preventable with simple and cheap measures. Addressing unsafe abortion would make a significant dent in Kenya’s high maternal mortality ratio, which currently stands at 355 deaths for 100,000 live births—compared with, for example, 97 deaths for 100,000 live births in India, where abortion is legal.
Domestic religious opposition, government inertia, and meddling by foreign actors all contribute to making access to safe abortion difficult. But Kenyan activists, lawyers and health providers are determined to expand access. It’s been a herculean struggle.
Many were hopeful for decisive change in 2010, after the new Constitution of Kenya was adopted by national referendum. As a result of efforts by activists, lawyers and health professionals determined to address unsafe abortion, Article 26 (4) of the Constitution states that “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.” In addition, Article 43 (1) (a) states that “Every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.” Although Article 26 (2) declares, in deference to Catholic views, that “the life of a person begins at conception,” the abortion exception contained in subparagraph 26 (4) gives a lot of discretion to health personnel. The last phrase of Article 26 (4) (“if permitted by any other written law”) also opens up the possibility for Parliament to make services broadly available.
The legislative front has so far been disappointing. The Kenyan Parliament has, since 2010, failed to amend or repeal the provisions of the country’s 1963 Penal Code that criminalize abortion in order to bring them in line with the Constitution. It has also failed to pass a separate law to outline what Kenyans should expect in terms of access to abortion services. Over the years, comprehensive bills on reproductive health have been tabled by individual members of Parliament, but they were never endorsed by the government, and did not move forward. The most recent such bill, on reproductive health including abortion, died on the Kenyan Senate’s agenda in 2019. Its sponsors, progressive Senator Susan Kihika and Member of Parliament Esther Passaris, were publicly attacked by religious right-wing groups.
This legal murkiness has given cover to police, who to this day routinely raid health clinics suspected of offering abortion care—threatening, harassing, extorting and arresting health providers. Of course, police officers often don’t know what they’re looking for, since treating an ongoing miscarriage in a clinic uses the same techniques as inducing an abortion. Sophie Hodder, who was the country director of Marie Stopes Kenya (MSK) from 2019 to 2022, said that, during her tenure, police had even arrested a lab technician at a clinic run by a MSK franchisee, even though lab technicians don’t interact with clients.
Meanwhile, health providers and activists have worked with the Ministry of Health to expand access. At first, this seemed a promising avenue. In 2012, the Ministry issued comprehensive Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya to lay the ground for training health professionals on how and when to provide abortion services. But the Standards and Guidelines were suddenly withdrawn in 2013, apparently under strong pressure from Kenya’s Catholic bishops and other religious actors. In early 2014, the Ministry even went so far as to issue a memo withdrawing the National Training Curriculum and banning all health providers from receiving any training in safe abortion care. The memo claimed that “the 2010 Constitution of Kenya clearly provides that abortion on demand is illegal and as such, there was no need to train health care workers on safe abortion or [on] importation of medicines for medical abortion.”
Confusion ensued. Kenya’s Constitution clearly grants health professionals the authority to decide when an abortion is needed, but mandates that these be trained professionals. So how can the Ministry ban training? Meanwhile, abortion pills were already registered as essential medicines in Kenya at that time, so how could there suddenly be “no need” for them? Health providers expressed dismay, while religious groups praised the Ministry, and the University of Nairobi Students Association proposed burning down abortion clinics. A mess!
Women’s rights activists did not take this lying down. In 2015, the Federation of Women Lawyers (FIDA-Kenya), together with the Center for Reproductive Rights (CRR), sued the government on behalf of a 14-year-old girl (“JMM”) who suffered sepsis and severe damage to her kidneys as a result of an unsafe, clandestine abortion (JMM never recovered and died of renal failure in 2018). In 2019, Kenya’s High Court ruled that the withdrawal of the Standards and Guidelines and the ban on abortion trainings had been arbitrary and in violation of Kenya’s Constitution and its Sexual Offences Act: “The arbitrary withdrawal of the 2012 Guidelines and Training Curriculum clearly left… women and girls to the vagaries of medical quacks and backstreet services.” The Court voided the withdrawal of the Standards and Guidelines, as well as the infamous memo banning training. It ruled that abortion is permitted for any victim of sexual violence, and especially so when the victim is a minor like JMM. It gave the broadest interpretation possible to Article 26 (4) by declaring that “trained health professional” under Article 26 of the Constitution does not refer only to physicians, but to all health personnel such as nurses, midwives, clinical officers and pharmacists, and that the health of the woman encompasses her “physical, mental and social well-being.” The Court also awarded damages to JMM’s mother. All in all, this was a stunning victory for abortion activists!
A second case was brought in 2020 by the Reproductive Health Network Kenya and the Center for Reproductive Rights against the town of Malindi and county of Kilifi, on the coast of Kenya, on behalf of a 17-year-old girl (”PAK”) who experienced a miscarriage, and of Dr. Salim Mohammed, the local physician who treated her. Both were arrested and charged with unlawful abortion a few days after Dr. Mohammed saw PAK at his clinic. In 2022, the High Court in Malindi threw out the charges, and ruled that “Access to abortion is… fundamentally linked to protecting and upholding the human rights of women, girls and others who can become pregnant, and thus for achieving social and gender justice.” Examining the contradictions between the 1963 Penal Code and the 2010 Constitution that allow police to continue to arrest health providers, the court concluded that “…to criminalize abortion under the Penal Code without a statutory and administrative framework on how the victims are to access therapeutic abortion as provided for in the exception under article 26(4), is an impairment to the enjoyment to reproductive rights accorded to the women. These cluster of rights includes, right to life, right to privacy, freedom of choice, dignity, security and conscience.” The court further instructed Kenya’s Parliament to “draft a law which recognizes the right to abortion in consonance with [A]rticle 26(4) of the Constitution…”Another stunning victory! Evelyne Opondo, who was Senior Regional Director for Africa at the Center for Reproductive Rights until July 2022, expressed relief that both decisions had been so decisive for abortion rights: “We knew that if the court correctly interpreted the law, then they should arrive at this particular position. However, we knew about the pressure from [anti-abortion] opposition groups, and how because of that, the Ministry of Health has not been active in terms of implementation. We also knew that opposition groups sometimes try to intimidate the courts and therefore we were not certain what the outcome would be.” Their courage paid off.
As I write this, that abortion law has still not been presented to Parliament (cf. Parliamentary inertia above). Inauspiciously, the August 2022 elections brought William Ruto to the Presidency of Kenya. Ruto and his wife are evangelical Christians, known for their religiosity and their anti-abortion and anti-LGBTQ posture.
Yet, on the ground, providers and activists committed to safeguarding women’s and girls’ health have forged ahead by pushing the boundaries of what is possible within the law.
Jade Maina, the Executive Director of TICAH in Nairobi, is proud of the abortion information hotline, Aunty Jane, that her organization set up in 2012, after hearing about similar hotlines run by feminists in Latin America and Indonesia. Aunty Jane now handles about 3600 calls a year, seven days a week from 6:00 AM to 10:00 PM, providing information about where and how abortion can be accessed should the service be needed—without directing the caller to take one or the other specific action. Maina explained: “If you ask us, where can I get an abortion? We will not tell you where you can get it. We will say: women can get abortions in different places, for example, there are pharmacies where they can go. We share the WHO [World Health Organization] guidelines. If she asks: But I have 12 [abortion] pills, what do I do now? We reply: the WHO guidelines say that women can have a safe abortion if they use pills in this way… We’re allowed to share information!” The service also offers recorded information 24 hours a day. TICAH also provides in-person workshops on reproductive health to schoolgirls in Nairobi schools.
Hearing from Argentinian activists back in 2011 galvanized Maina and her team: “We had the new 2010 Constitution, and at that meeting, I remember thinking, we have even better laws [than the Argentinians], we have a law that allows for abortion in these instances. So, let’s go home and do this!” Inspired by Aunty Jane, similar abortion information hotlines have sprung up in 27 countries of sub-Saharan Africa with TICAH’s support. In 2022, TICAH received a significant grant from Mackenzie Scott, the American philanthropist (and ex-wife of Jeff Bezos) who has vowed to give away all her wealth.
“We need to be bold to save lives,” said Monica Oguttu, a nurse midwife and the Executive Director of Kisumu Medical and Education Trust (KMET) when I met her in Kisumu, Western Kenya. KMET works on a wide range of women’s health concerns, from cervical cancer prevention to addressing sexual violence. Western Kenya has even higher maternal and child mortality than the national norm, and there was a significant spike in teen pregnancy in the region during COVID. When I met her, Oguttu was feeling despondent about the recent deaths of three adolescent girls in nearby Nyakach due to unsafe abortion. “We still have a lot of work to do.”
Oguttu and her team are a rallying force. For years, looking to the Constitution as their guiding star, KMET trained health professionals in comprehensive abortion care using manual vacuum aspiration. In 2019, the KMET team decided this was not sufficient given the dearth of clinics and health professionals in Kenya, particularly in remote rural areas. The World Health Organization had just published a report on task shifting (allowing health personnel other than doctors to perform services), and a guideline on “self-care interventions,” including self-managed abortion (SMA). SMA was not well understood in Western Kenya. KMET decided they needed to promote the approach up to 10 weeks of pregnancy, with a focus on adolescent girls as clients, and with pharmacies as partners.
Their timing proved serendipitous: COVID soon made access to many clinics almost impossible. Four years later, they have trained 115 pharmacy outlets and 285 community health volunteers in five Western Kenyan counties. The volunteers are available to accompany pregnant girls and women through the abortion process and can refer them to a health provider if needed. The social enterprise arm of KMET keeps a buffer stock of abortion pills and contraceptives on hand. KMET estimates that, owing to this initiative, over 11,000 clients have self-managed their abortions since 2019, saving many lives. SMA has also brought the cost of abortion down locally, from 5000 Kenyan shillings ($US 36) for vacuum aspiration to 1500 shillings ($US 10) for abortion with pills, painkillers included.
Coordinated right-wing attacks on sexual and reproductive health and rights have been going on for a while in Kenya and across the subcontinent. The recent adoption by Uganda of a terrifying Anti-Homosexuality Bill is one of many examples, with ripple effects in Kenya (more on this next month). In 2018, for example, Marie Stopes Kenya was falsely accused of providing illegal abortions, and its clinics were shut down for several months as a result. Citizen Go—the notorious anti-abortion and anti-LGBTQ group based in Spain—and its Campaigns Director for Africa and the UN, Ann Kioko, drove the attack. Citizen Go remains very active in spreading false information, and trolling providers online and denouncing them to police. “When clinics got busy again in 2021, Hodder says, we had a lot of fake clients who would come in, recording, videoing and trying to catch providers out. A lot of social media saying that clinics were doing things that they weren’t doing. Even the press jumped in. I mean, there was one article about a pit full of 35-week-old fetuses! Which was a complete fabrication, but it was all over Kenyan news for a while, until they realized it was nonsense.”
Recounting the saga of the Standards and Guidelines in 2013 and 2014, Oguttu bemoaned the fact that vocal anti-abortion ob-gyns have “positioned themselves inside the system.” They sit on technical working groups of the Ministry of Health, she said, where they object to everything that could expand access, and explicitly push right-wing points of view. “There were lots of fights [in the working group] over [abortion] self-care. Why do you want to work with pharmacists? But we went ahead anyway and signed a MOU [Memorandum of Understanding] with the professional pharmacists’ association. Sometimes you have to pretend you can’t hear.” Maina echoed this: “The opposition is so strong in Kenya right now! Sometimes you hear the Minister of Health speak and you can hear opposition language. You’re like: Who wrote his speech?! It’s pretty bad at this time.”
Hodder described the impact of Dobbs (the US Supreme Court decision that reversed the right to abortion) on the situation in Kenya as “catastrophic:” “It has galvanized the anti-choice without a doubt. It sent a strong message that, even in the West, we are not all in agreement. It provides validation to anybody who wants to stand up and say, see, even the US have realized they made a massive mistake. That's the narrative.”
Asked about Dobbs, Oguttu sighed deeply: “It was a shock! We had always referred to the US, to Roe v Wade in 1973, as the reference, an achievement. And here we are, in a rural part of Kenya and the big brother is regressing. It threw us off balance. As advocates, we had to take time and re-think. Then we thought, this is Kenya, this is not the US! We need to save women in Kenya. So we are using it as a positive argument with our government. We are Kenyans, we tell them. We need to stand on our own feet.”
Given the confusing state of abortion law in Kenya, Oguttu is fully aware of the risks KMET and its partners face in providing abortion services. Some of the pharmacies were raided by police, and two pharmacists were briefly detained. But she pointed to the Constitution and the recent court decisions: “With the Constitution, I’ve been assured by the lawyers, we have the mandate to offer these services within the law. It is the service providers that make the decision. We are never working outside the law.” Oguttu is also motivated to push the envelope by her obligations as a health professional: “When I take my oath as a nurse, as a midwife, I’m actually committing myself to serve, and to save life. And that is the driving force that has kept us going.” On a personal note, she added: “What has kept me going as Monica, was witnessing women die in the teaching hospital when I was in charge, managing the busiest unit. It can never be the same after you’ve witnessed women come in and die after unsafe abortion. To you and everybody else, it’s statistics. But I see that face, looking at me, going to the morgue. That face is telling me: do something. Let no woman ever die again.”
Evelyne Opondo noted with dismay the many lawsuits recently filed against the Ministry of Health by Citizen Go and related group Pearls and Treasures Trust (focused on “sexual purity” and dissuading women from having abortions). These cases seek to advance fetal rights or force additional licensing requirements on abortion clinics and providers. “It’s the sort of litigation that we’ve seen in the U.S., the TRAP [targeted restrictions on abortion providers] laws,” basically the playbook of the US right-wing. She was expecting more of these cases going forward, noting how they keep everyone on the defensive.
Over 20 Kenyan groups working to advance sexual and reproductive health have banded together to counter these attacks, said Maina, and to put forward a progressive agenda through a variety of strategies: “The idea is to be proactive. In the recent past, we had been reactive. We’ve just been fighting fires and finding out too late in the day that there’s this or that [regressive] document that’s being launched and now we need to stop it. So we have been spearheading action around that. We have a team that goes to court. We can organize protests in the streets. We have done media, social media and mainstream media like buying space in papers to write open letters to the Ministry of Health.” In 2022, I reported that these groups were able to delay the launch of the Ministry’s retrograde Reproductive Health Policy 2022–2032, which promoted abstinence until marriage and made no mention of abortion. Unfortunately, they were ultimately unable to block it.
So the struggle continues.
In full solidarity with Kenya’s brave feminist activists,
FG