In February 2014, the Director of Medical Services (DMS) in the Ministry of Health issued a memo prohibiting health workers from participating in trainings on safe abortions or the use of the drug Medabon, which has a combination of mifepristone and misoprostol for medical abortion purposes. The memo was titled “Training on Safe abortions and the use of Medabon”.
It is curious that the memo was issued a short while after the withdrawal of the “Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya” that was meant to ensure that health facilities assist women who deserve safe abortion services. In fact, only the Pharmaceuticals and Poisons Board is legally mandated to withdraw the use and circulation of all drugs in Kenya.
Moreover, the memo threatened health workers with professional and legal sanctions if they pursued trainings specific to the drug. This is despite the fact that such trainings are important for bolstering health workers’ skills in life saving emergency medical abortion procedures. It is through such skills that medical practitioners are able to save mothers’ lives when their pregnancies pose a threat to their lives in line with Article 26(4) of the Constitution, which provides that “abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life of the mother is in danger”.
With attention to the memo, several questions arise regarding the constitutionality of the DMS’s actions: First, was it right for him to alter the framing of legality of abortions in the Constitution by stating that abortion on demand is illegal without mentioning that the Constitution allows for abortion under particular circumstances? Secondly, was it right for him to arbitrarily withdraw the guidelines and leave a vacuum regarding the legality of safe abortions? Thirdly, can a simple memo be used to limit constitutional rights by doing away with guidelines that were promulgated by experts and stakeholders? Lastly, is the Director of Health carrying out his own constitutional review process?
According to the Constitution, every person has a right to freedom of expression and a right to information. This extends to the right to seek and receive and impart ideas, the right to academic freedom, and freedom of scientific research.
By prohibiting training on safe abortion skills, the DMS violated the health workers’ right to academic freedom and freedom of scientific research. Additionally, the threat of sanction created a chilling effect to healthcare workers, thereby denying girls and women crucial medical treatment in emergency situations.
Due to the memo, women risk injury or death from unsafe abortions conducted by unskilled health care workers. Consequently, since the issuing of the memo in February 2014, Kenyan women have likely been practicing unsafe abortions leading to many maternal deaths and terminal illness.
According to a report conducted by the Ministry of Health on unsafe abortions in Kenya in 2013, out of every 100,000 unsafe abortions, 266 women die due to the process or related complications. Women’s right to life, and even the right of the highest attainable standard of health, including reproductive healthcare, thus stand violated.
It is for these reasons – and the case of an adolescent girl who was rendered terminally ill and could not access the abortion treatment she needed – that the Centre for Reproductive Rights, FIDA-Kenya, KELIN and ARTICLE 19–Eastern Africa, are litigating the mater before High Court. These organisations and the young girl argue that the court should restore safe abortion trainings and reintroduce the withdrawn guidelines as a way of protecting women’s and health care workers’ rights.
Specifically, they intend to demonstrate the instrumentality of the freedom to seek, receive or impart information or ideas in the ability of all citizens to access other rights, and that, for the most part, their right to seek, receive and impart information should not be viewed in isolation from other rights. Rather, it is imperative to have it so as to be able to achieve other rights and freedoms. In other words, “You cannot claim what you don’t know exists!”
The State should be the last institution to encumber health workers’ access to important information and professional training as in doing so it prevents citizens from benefiting from that knowledge which might mean the difference between life and death.
Author is a practising advocate and Senior Programmes Officer – Civic Space, ARTICLE 19 – Eastern Africa
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