KENYA – Victory in Landmark Ruling Challenging the Withdrawal of ‘The Standards & Guidelines’

On 12 June 2019, the Center for Reproductive Rights won a landmark case challenging the Kenyan government’s withdrawal of the “Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya” (Standards & Guidelines). The Center filed the case on behalf of an adolescent (JMM)—who died last year after suffering from complications that resulted from an unsafe abortion—as well as the Federation of Women Lawyers (FIDA) Kenya and two community human rights advocates. The case was presided over by a five-judge bench at the Nairobi High Court.  
 
In this ground-breaking decision, the Court found that the Director of Medical Services and the Ministry of Health had violated the rights of Kenyan women and girls by arbitrarily withdrawing the guidelines, thereby creating uncertainty as to the status of legal abortion and discouraging medical providers from performing abortions for fear of criminal prosecution. It provided a comprehensive ruling which:   

  • Declared that women and girls have the right to the highest attainable standard of health—which includes its broadest interpretation, to include mental and social well-being as well as physical—right to non-discrimination, right to life, and other rights. 
  • Ordered individual reparations of Kshs 3 million, or USD $29,600, to JMM’s mother.  
  • Declared that the memo violated and threatened the rights of health workers, therefore, the memo and letter were found unlawful, illegal and now void. 
  • Stated that abortion is illegal except under conditions of Article 26(4). 
  • Declared that abortion is permitted for victims of sexual violence. 

In 2015, the petitioners filed a case against the Attorney General, Director of Medical Services, and the Ministry of Health. After four years, the implementation of the High Court’s order will allow health care providers to offer abortion and post-abortion care services without the fear of being prosecuted.

In September 2012, the Ministry of Medical Services published “Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya.”  In December 2013, the Director of Medical Services withdrew the Standards & Guidelines under unclear circumstances and without the involvement of the stakeholders who had participated in its development. This was followed by a memo in February 2014 that further stated that there was no need for the training of health workers on safe abortion care or the use of the drug Medabon for medical abortion. The Ministry also said that all such trainings should cease, and that failure to comply would lead to legal and professional recourse.   

This case was filed in response to these actions by the Ministry. The petitioners urged the High Court to protect women’s health and lives by restoring safe abortion trainings and calling on the Ministry of Health to reinstate the Standards & Guidelines to provide clarity on when and how to provide legal abortion care.

Congratulations to the Center, the petitioners, and all those who helped and supported this important case!!

For more information:

You can watch the landmark ruling on Facebook.
Follow the hashtags #KeepWanjikuSafe and #Victory4Wanjiku
A press summary of the ruling is available on the Kenyan Judiciary website

SOURCE: Email from Center for Reproductive Rights, Kenya, 12 June 2019. PHOTO