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Mentally sick woman fights to access post-rape care, abortion

A woman codenamed ROM is a mother of one today.

However, her story to motherhood is central to a court battle she has filed with the help of a human rights group against the Attorney General, the Health Cabinet Secretary and Kenyatta National Hospital.

ROM suffers from a mental condition, which psychiatrists assessed as intellectual disability.

Court documents filed before the High Court and seen by The Standard indicate that owing to her condition, her cognitive skills are diminished and she is easily taken advantage of.

She filed the case alongside Kenya Legal and Ethical Issues Network (Kelin) and her mother codenamed JMS.

ROM said that she had been subjected to sexual violence, in which she got pregnant but was not given proper care as an abled woman would do.

At the same time, contention is also about her right to access safe abortion.

“Despite the pregnancy being detected at an early age, and considering it arose out of a sexual violation incident and being occasioned to a mentally deficient person, she was not advised on any safe abortion options,” court papers read in part.

Besides the pregnancy, it also emerged that she had been infected with a sexually transmitted disease.

ROM stated in her case that KNH failed to offer with post-rape care.

Further, she narrated that because the hospital failed to give her due care, she bore a child a cerebral palsy, which is a congenital disorder of movement, muscle tone or posture.

“The disparity between the time of reporting and the time of commissioning of sexual violence upon the first petitioner would have reasonably informed the third respondent that the first petitioner had no knowledge or awareness of procedures to be taken in the event of sexual violence,” the case also read.

The woman claimed that she was initially treated for bacterial infection, but doctors did not check whether she was pregnant.

“The violation of the first petitioner’s rights by the respondents jointly and severally has led to her current condition whereby she is intellectually disabled and has borne a disabled child out of the sexual violation,” her case filed by Njuguna and Njuguna advocates continued.

In addition, she argued that Kenyatta Hospital ought to have referred her to a mental counselor or psychotherapist to enable her cope with the trauma.

In the case, a consultant psychiatrist said that ROM’s mother explained that she became unwell at the age of one year and four months when she started having malaria-like symptoms.

The court heard that she was in ICU for three months and after discharge, she could not speak or feed herself.

In addition, her mother stated that she could not write, which led to her shift to different schools. She dropped out of class four.

At the mental hospital, a psychiatrist indicated that she was unable to read, perform calculations, handle money, her reasoning was impaired and could not sustain social relationships due to poor social cues.

The psychiatrist said that the disorder can impair judgment and reasoning, thus making her easily gullible. 

The psychiatrist stated that ROM has a diagnosis of intellectual development disorder.

ROM and Kelin argued that all women have a right to the highest attainable standard of health without discrimination.

At the same time, they asserted that Kenya has not taken measures to ensure women with disability, who are victims of sexual violence have equal access to aftercare services, including safe abortion.

ROM’s mother codenamed JMS swore an affidavit in support of the case. She said that her daughter was raped by her sometime in 2019. However, the culprit was acquitted by the magistrate’s court.

“The acts of sexual violence occasioned to ROM remained unknown to me until August 23, 2019 when she was examined for rape after being referred by the police where we reported,” said JMS.

At the lower court, ROM told the court that the person her dragged her to his house and raped her. The court heard that he promised her a soda as an inducement not to scream.

Despite her mother producing a report from hospital indicating that she had ‘moderate intellectual disability’, the magistrate ruled that intellectual capacity being low is not a disability.

He ruled that as an adult, she could make her own decisions.

In the High Court. JMS further stated that she feels helpless that her daughter will fall prey to similar violators if the court will not intervene.

“This is causing me great anguish, mental torture and despair to myself and my family in general and now seek to enforce and protect constitutional rights as a vulnerable member of the society by holding the respondents herein to account,” said JMS.

JMS also said that after, Kenyatta never followed up on her daughter’s health and mental status. She asserted that medics left her daughter to carry the misfortunes in her condition.

Her granddaughter, she said, that after birth doctors noted that she could not interact with other children and had dyslexia.

“This is causing me great anguish and mental torture and despair to myself and my family in general and now seek to enforce and protect constitutional rights as a vulnerable member of the society holding the respondents herein to account,” she added.

They want the court to order the government to come up with policy guidelines to cushion persons with disability from the unfortunate happenings in ROM’s story.

Further, they are seeking an order that the government and KNH violated her right to health for failing to provide ROM with post-rape care services.

The court is also being asked to compel the ministry and the referral hospital to display service charters on persons with disability who are victims of sexual violence.

They are also seeking compensation for violation of ROM’s rights.

“The third respondent did not provide and or inform the first petitioner or her next of keen of the option of safe abortion by a qualified medical practitioner as the pregnancy was a result of sexual violence and therefore qualified within contours and parameters of the meaning of unwanted pregnancy,” they argue.

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