It is important that victims of rape and defilement – who consequently fall pregnant – are accorded medical abortion care by medical practitioners, when and if they make such a request.
This is the position of the Kenya Obstetrical and Gynaecological Society (Kogs) – an organisation of about 500 Kenyan doctors specialising in obstetrics and gynaecology.
In a positional paper dated May 8, the organisation seeks to clarify its stand on the controversial topic.
“As obstetricians and gynaecologists practising in Kenya, we interact with women on a range of reproductive health issues on a daily basis,” says Kogs President Kireki Omanwa.
“Our voice on this subject matter is important. The stand we have taken is informed by our laws, policies and most importantly medical evidence gathered from practising obstetrics and gynaecology.”
“As an organisation that operates as a national champion in sexual and reproductive health and rights, we recognise the need to provide a position statement on the subject matter to inform and guide efforts towards the reduction of maternal morbidity and mortality arising from unsafe abortion,” says Dr Omanwa.
The doctors take note that some medical personnel, influenced by personal, cultural, or religious beliefs, may decline to provide legal abortion services.
To which they say: “Conscientious objection is an individual decision that must be presented in writing and be exercised consistently.”
They add: “The right to conscientious objection is an important freedom but those who invoke it must show the same respect for others' rights and freedoms.”
The medics point out that abortion is a medical issue: it is about the health and wellness of a woman.
“If a practitioner is unable and unwilling to provide a desired medical service given his/her conscientious objection,” the statement continues, “he/she is obligated to make referral in good faith to a non-objecting physician in a timely manner.”
Under the 2010 Constitution, abortion may be granted to a pregnant woman or girl, when in the opinion of a trained health professional, she needs emergency treatment or her life or health is in danger.
“Unsafe abortion as well as abortion-related stigma and criminal penalties put women’s and girls’ lives and health at risk which jeopardizes and contravenes protected rights under various legal frameworks.
“In emergency situations, to preserve life or physical or mental health, practitioners must provide the medically indicated care of their patients’ choice regardless of the physician’s personal objections. The care must be provided urgently and respectfully without punitive prejudice and biased behavior.
“The best interests of pregnant adolescents are paramount. Their views must always be heard and respected in reproductive health decisions,” reads the rest of the paper.
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Kogs' position is in tandem with the Maputo Protocol, which Kenya ratified.
Article 14 (2)(c) of the Protocol states: ‘Parties shall take all appropriate measures to: protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health.’
At least two cases in the High Court – the first, petition 266 of 2015, and the second petition E009 of 2020 – have concluded that abortion is a reproductive health service that a woman might need for the sake of their health and wellness.
President of International Federation of Obstetricians and Gynaecologists Anne Kihara says: “Restricting abortion does not stop it from occurring but increases the likelihood of unsafe and backstreet options.”
The positional paper was put together by a select committee within Kogs and was adopted through majority support.
Debate on termination of pregnancy in Kenya became heated in 2009, in the months leading to the referendum on the 2010 constitution.
Under the Constitution of Kenya (2010), Article 26(4) 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.
This article drew the ire of religious groups: led by churches and religious organisations. They argued that the new constitution would permit ‘abortion on demand’.
As fate would have it, Kenyans voted to adopt the draft in August, 2010: 67 per cent of voters had cast their ballots in favour of the law and 30 per cent against.
Since the passing and adoption of 2010 constitution, debate on abortion has become emotionally charged.
A few cases that have been litigated in Kenyan courts however make it clear that medical abortion is a reproductive health service that women are entitled to.
In 2019, a five-judge High Court bench ruled that the Ministry of Health was to blame for injuries (and later, death) of a girl who had sought backstreet abortion.
Petition 266 of 2015, put the health ministry under legal scrutiny; for the 2013 withdrawal of the 2012 Standard Guidelines on Post-Abortion Care: guidelines that would have allowed medical personnel to promptly intervene with safe abortion services for the 14-year-old girl (identified by in court as JMM) who resorted to backstreet channels to terminate a pregnancy that arose from defilement.
Apart from withdrawing the guidelines, the ministry had also banned training of health professionals on safe abortion, even though the constitution had envisaged possible situations healthcare professionals could terminate a pregnancy – to preserve the health and wellbeing of a woman.
JMM was a schoolgirl from a poor family in rural Kisii. She was defiled in 2014; leading to a pregnancy. She then sought backstreet abortion services.
Predictably, the procedure went horribly wrong, precipitating emergency hospital admissions: first at Kisii County Referral Hospital, then to Tenwek Mission Hospital, and finally to Kenyatta National Hospital – where she would spend months under admission.
JMM developed life-changing complications, key among them, kidney failure; complications that eventually claimed her life in 2018.
“If crime victims such as JMM would be accorded a friendly environment to seek medically sound abortion services, their lives would be saved,” says Omanwa.
“This is why we, as Kogs, would like to make our voice known to Kenyans: that we support the rights of such victims to legal and medical abortion.”
Most recently, in March 2022, the High Court in Malindi ruled that abortion and abortion-related services are part of the reproductive health rights the Kenyan constitution protects.
Giving his judgement on petition E009 of 2020, Justice Reuben Nyakundi declared that criminalising abortion under the Penal Code would be an impairment to the enjoyment of women’s reproductive health rights.
Justice Nyakundi also directed Parliament to enact laws and policies that align with what the constitution envisages: that a woman may need medical abortion services.
The Maputo Protocol, which Kenya ratified bears the following.
Article 14 (2)(c) of the Protocol states: "Parties shall take all appropriate measures to: protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health."
Kogs’ positional statement states that abortion is primarily a medical issue.
"Unsafe abortion as well as abortion-related stigma and criminal penalties put women’s and girls’ lives and health at risk which jeopardizes and contravenes protected rights under various legal frameworks.
"If a (health) practitioner is unable and unwilling to provide a desired medical service given his/her conscientious objection, he/she is obligated to make a referral in good faith to a non-objecting physician in a timely manner.
"In emergency situations, to preserve life or physical or mental health, practitioners must provide the medically indicated care of their patients’ choice regardless of the physician’s personal objections. The care must be provided urgently and respectfully without punitive prejudice and biased behavior.
"The best interests of pregnant adolescents are paramount. Their views must always be heard and respected in reproductive health decisions,’ reads the rest of the paper."
The positional paper was put together by a select committee and was adopted through majority support.