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Group urges State to protect constitutional reproductive health rights

By Irene Githinji
Thursday, August 13th, 2020
The Government has been urged to conform to its obligations ensuring sexual reproductive health and rights are protected and fulfilled
In summary
    • The Center for Reproductive Rights (CPR) said it is essential to promote women’s access to safe abortion services and its related care within context of all relevant Kenyan laws to effectively implement Article 26(4) of the Constitution.

A rights group has urged the Government to protect and fulfill its obligations on sexual reproductive health and rights, as Kenya marks 10 years since the promulgation of the 2010 Constitution.

The Center for Reproductive Rights (CPR) said it is essential to promote women’s access to safe abortion services and its related care within context of all relevant Kenyan laws to effectively implement Article 26(4) of the Constitution.

The group said in a publication titled, a Decade of Existence, Revealing Progress, Reversals, and Betrayal of a National Compromise’, that there are persistent stigma and misperceptions of abortion in the public domain and criminal justice system which should be debunked.

“A vast majority of women and girls were prosecuted based on eyewitness testimony and circumstantial evidence. In cases where dead fetuses were found in hidden locations, complaints were triggered by public misperception that all pregnancy losses amount to criminal conduct,” reads the report.

The Centre documented that charge sheets indicated that signs of terminated pregnancy, dead, or unidentified disposed fetus were termed unlawful, which resulted to a ‘public lynching’ of affected women and girls.

“The women and girls were labeled criminals without investigations into the circumstances surrounding terminations of their pregnancies. Most women and girls were unaware that access to safe abortion is lawfully permitted to safeguard the life or health of an expectant woman,” the report adds.

According to the Centre, women were also afraid of seeking safe and legal abortion services due to fear of being stigmatized, reprimanded, or prosecuted even in situations where the pregnancy was the result of rape.

The group said that abortion stigma violated the accused persons rights to access health, psychological support and freedom from cruel, inhumane and degrading treatment.

CPR highlights in the publication, the ineffective implementation of Article 26(4) of the constitution, inadequate application of the provision in adjudicating abortion cases, challenges of criminal sanctions in related offences and extent to which abortion stigma, and stereotyping entrenched in criminal justice system.

CPR stated that none of the courts explicitly applied Article 26(4), either during proceedings or in final determinations due to lack of provisions for incorporating its elements in the penal code.

“While the penal code includes offences of unlawfully procuring and supplying drugs or instruments to procure an unlawful abortion, there are no corresponding provisions to protect women, girls, and health professionals who fall within the exceptions,” added the report.

CPR has since urged Director of Public Prosecutions (DPP) and National Police Service (NPS) to develop capacity of criminal justice actors, including police and prosecutors, on interpretation and application of Article 26(4).

They want the National Assembly to develop capacity of criminal justice actors, including police and prosecutors, on interpretation and application of Article 26(4), and on identifying and addressing gender stereotypes—on pregnancy, termination of pregnancy, and legal abortion—during investigations and prosecutions.

The Chief Justice, on the other hand, said the CPR, should pronounce judicial recognition of permitted grounds under Article 26(4) as an immediate obligation in criminal and civil cases—arguments that can be applied in the present context, even before the necessary legal reforms take place.