The recent decision by High Court judge Reuben Nyakundi to knock down rigid sections of abortion laws added swell to expanding wins for sexual and reproductive health rights in Kenya.
Over time, the Judiciary and Parliament have been scoring one win after another, with experts now urging the Executive to pull its part and entrench progressive sexual and reproductive health policies to match with the times and the law.
In the decision, Nyakundi declared Sections 158, 159 & 160 of the Penal Code inconsistent with the Constitution.
Section 158 imposes an imprisonment term of 14 years on persons who assist women to miscarry their pregnancies.
Section 159 imposes a seven-year jail term for the women who procure their own miscarriage while section 160 targets suppliers of abortion pills, handing them three-year imprisonment.
In the case, a teenage girl and a doctor who assisted her to abort in a bid to save her life had been charged before the magistrate’s court.
They both sued the Director of Public Prosecutions, the Attorney General and the Inspector General of Police.
The two argued that a blanket condemnation of abortion is against women's rights to health and doctors’ discretion in their profession.
Abortion in Kenya is a is a tower of babel of sorts, pitting religious groups, cultural morals believers and lawmakers against each other.
“Not many courts have made bold decisions on abortion. If you look at Justice Nyakundi’s verdict, you can clearly say that the court is doing its bit. The legislature is doing a little of their bit but the Ministry of Health is not tackling the issues it should,” Evelyn Opondo, the regional director of the Center for Reproductive Rights says.
She admits Kenya is making tremendous strides on sexual and reproductive health rights than other countries but blames the slow pace on failure to implement agreed goals.
“The judiciary is taking the bull by the horn,” she added.
When Nyakundi handed down his decisions, lawyers surged to decorate him. Munir Masoud who has appeared before him termed him a legal gentleman.
“I am a layman. I have been before Justice Reuben Nyakundi. A gentleman. A guiding figure. My opinion is that law to him is not superior to humanity and fairness,” states Masoud.
Lawyer Adrian Kamotho says he agrees with Justice Nyakundi that doctors should be allowed to do their work without fear of prosecution.
“Doctor’s discretion is unfettered when issues medical are concerned. Given a choice where the life of the mother or child is at risk, he may decide to sustain that. Without a threat of criminal sanctions, medical professionals can exercise their discretion without fear,” he says.
Nyakundi’s decision no doubt attracted the attention of pro-choice groups like Opondo’s. However, the judge was walking on the well-trodden path of his colleagues who have expanded the frontiers of Kenya’s jurisprudence on sexual and reproductive health rights.
In 2019, five High Court judges, Lydiah Achode, Mumbi Ngugi, Aggrey Muchelule, George Odunga and John Mativo gave women some respite by reinstating guidelines on safe abortion.
According to the five, Section 26(4) of the Constitution, which prohibited it, gave exceptions in which a medical practitioner can offer an abortion. They said a woman or a girl who is raped and whose life and health, which includes mental, physical and social well-being, is in danger can abort.
“The Penal Code and Sexual Offences Act prohibit abortion. These Acts predate the Constitution; hence the Constitution takes precedence. The apparent blanket prohibition of abortion in the penal code cannot stand while the Constitution gives the right to a woman to abort when their life and health are in danger,” the judges ruled.
The court made its finding in a case where a 14-year-old girl named JMM procured unsafe abortion in a backstreet facility for Sh1,500. The girl had realised she was pregnant two months after being defiled.
From the backstreet facility where she procured the abortion, the girl ended up in a Kisii County hospital, which failed to offer her post-abortion care, and eventually passed away.
The Court censured the county hospital for abdicating its duty of care to her, slapping a Sh3 million fine on it for the pain and damages caused to her.
Before that, the Director of Medical Services had issued a memo banning all healthcare workers from participating in any training on safe abortion.
He also banned the use of an abortion drug - Medabon - which is a combination of two other drugs - Mifepristone and Misoprostol- also used in abortion.
Two civil society organizations then went to court seeking orders that the Government puts in place guidelines for safe abortion. The case split medical doctors and the Health ministry in the middle.
In an earlier matter in 2017, Court of Appeal judges Agnes Murgor, Kathurima M’inoti and Roslyn Nambuye set aside the death penalty against Jackson Tali for alleged murder arising from abortion.
Tali, a nurse, had been slapped with a death sentence for allegedly killing Christine Atieno. After hearing eight prosecution witnesses, the then High Court judge Nicholas Ombija found him guilty of murder.
However, the Court of Appeal reversed the sentence after finding there was no evidence that the medicine given to her was connected to abortion and subsequent death.
“There was nothing in the evidence to show that the medication given to the deceased by the appellant the day before her death was toxic or was connected with abortion,” the court ruled.
Other than abortion, courts have also firmed women's rights while giving birth. Justice Mumbi Ngugi awarded two women Sh2 million after they were detained by Pumwani Hospital for failing to foot their bills after giving birth.
In the case, one of the women narrated that she had to sleep on the floor next to a flooding toilet, causing her to contract pneumonia.
During her detention over a Sh3,600 bill, she did not receive postnatal care and was mistreated by the nurses.
Justice Ngugi found that they were discriminated against on the basis of their gender because only women require health care services for pregnancy and childbirth.
They were also discriminated against on grounds of their socio-economic status as they were denied access to health care services due to their inability to pay.
In a related case in Bungoma, an unemployed 29-year-old mother of two admitted to hospital for the delivery of her third child was forced to deliver on the floor because the hospital lacked sufficient beds in the delivery ward.
In the process, she was physically and verbally abused by the nurses who accused her of dirtying the floor that they had just cleaned.
In her decision, Justice Abida Ali-Aroni gave nurses a piece of her mind on their notorious habit of verbally abusing women seeking maternity services from their facilities.
She declared that physical and verbal abuse meted out on the petitioner during delivery amounted to a violation of the right to dignity and the right not to be subjected to cruel inhumane and degrading treatment.
The judge also faulted the national and county governments for failing to implement or monitor the standards of the free maternity care services, resulting in the mistreatment of the woman.
The trend of the Judiciary holding institutions to account for the failure is well defined and marked in recent history.
It is assumed that institutions fingered in such cases will redress the wrongs, and put in place structures to avoid the recurrence of the same.
In yet another Justice Mumbi Ngugi decision handed in 2015, a primary school, Teachers Service Commission (TSC) and the government were held responsible and liable for the conduct of a teacher who defiled two pupils aged 12 and 13.
Through his conduct, the teacher violated the minor’s rights to dignity, education, and health.
The authorities, the judge said, owe pupils and students a duty of care against ills such as sexual abuse. In doing so, the institutions should ensure they do not employ persons with a history of abuse and also ensure that they avoid instances of abuse in their institutions.
It is not enough to prosecute sexual offenders, authorities should go a step further and ensure that there is no room at all for abuse in institutions that care for vulnerable groups, the judge ruled in the landmark decision.
In some of the cases, strong-arm tactics of authorities and government officers have come under increased focus, and censure.
In another landmark decision relating to children borne of surrogacy arrangements, Justice David Majanja censured the Director of Children Services.
In the matter, twins borne out of a surrogacy agreement were delivered at MP Shah Hospital. A procedural matter arose as to which “mother” to enter into the birth notification, usually filled at the hospital and surrendered to the directorate of births and deaths.
Confused by the situation, the hospital made the mistake of consulting the Director of Children Services who dispatched an officer who seized the twins and put them up in a children's home, saying they needed care and protection.
They were later released to their surrogate mother and the hospital issued a notification in her name, ignoring the genetic parents.
There had been no dispute between the surrogate mother and the genetic parents. The latter sued the Director of Children Services, and Justice Majanja agreed with them.
The Court stated that it was the duty of the state to enact legislation to regulate surrogacy.
“Surrogacy is not a hypothetical issue anymore. It is real and many Kenyans are resulting to surrogacy as an alternative to being parents, especially those who cannot for medical reasons have their own children. In such circumstances, it is the duty of the State to protect the children born out of such arrangements by providing a legal framework to govern such arrangements,” Majanja ruled.
He said it was because of the lack of a legal regime that the parties found themselves in such a situation. But even then, he ruled, the Director of Children Services ought to have acted in the best interests of the children.
In 2017, Justice Hellen Omondi stirred the hornets’ nest and released a 17-year-old boy who had been remanded in adult prison for one year after impregnating her equally underage girlfriend. The decision was hailed as a “significant step towards the realisation of adolescent rights in Kenya.”
The boy had been charged with defiling a minor, even though she was also a minor himself, and there had been no evidence to show that they both had not been willing participants in the act.
Justice Omondi ruled the state had discriminated against the boy child and his right to be treated as a child.
But it was Justice Said Chitembwe’s decision that knocked down the hornets’ nest, altogether. In 2016, the Judge set free a man who had been sentenced to serve 20 years in jail for defiling a minor of 14 years.
In one of the most controversial decisions handed in the recent past, Chitebwe vouched for lowering the age of consent, arguing in the current set-up, parties were being transformed into complainants by the law.
“Where a child under 18 years who is protected by the law opts to go into men's houses for sex and then goes home, why should the court conclude that such a person was defiled? In my view that cannot be defilement. The complainant normally does not complain but is made to be the complainant because she is under 18 years,” the judge said.
In the matter, the girl had been involved in a sexual relationship with one Martin Charo, an adult. The girl would sneak out of her parents' house, and go to Charo’s house purposely to have sex. Justice Chitebwe said children are not supposed to enjoy sex.
“It is PW1 who behaved like an adult and engaged in sexual intercourse. The appellant was not expected to inquire from several people about the age of the complainant. The relationship continued for quite a long time to the extent that age became a nonissue,” he said while freeing Charo.