Open Letter Regarding The Unlawful Decisions By The Medical Board Against Marie Stopes Kenya
News and Events
We, the undersigned, being representatives of institutions drawn from the health, human rights and governance sector write pursuant to our rights as Kenyan citizens and our organizations’ constitutional mandate enshrined under Articles 3, 10 and 43. We further write with support and endorsement from various organizations working towards the advancement and realization of women’s and girls’ rights globally.
We make reference to the Ruling of the Kenya Medical Practitioners and Dentist Board (The Board) dated 14th November 2018 regarding public complaints against Marie Stopes Clinics (the Ruling). We note with particular concern Order 1 of the Ruling directing Marie Stopes to ‘immediately cease and desist offering any form of abortion services in all its facilities within the Republic of Kenya.’ As representatives of a wide variety of health care providers, as well as women and girls who will be adversely and disproportionately affected by this Order, we write with the following concerns:
The Constitution of Kenya (2010) guarantees the right to the highest attainable standard of health, including reproductive health care under Article 43(1) (a). This is further complemented by Article 43(2) which forbids denial of emergency medical treatment.
In safeguarding access to the rights above, the State is obligated to ensure protection from discrimination during the entire life-cycle of a woman, especially considering that the majority of reproductive health care rights and services are owed to and primarily apply to women and girls. Further, ensuring the provision of comprehensive reproductive health care services is particularly important to enhance protection of women’s and girls’ rights, especially those from poor, vulnerable and marginalized contexts which goes a long way to reduce adolescent, maternal, new-bornand child mortality and morbidity.
With particular regard to access to safe abortion and post-abortal care services, the Constitution mandates health care providers to offer safe abortion services under Article 26(4) when the life, or health of the mother is in danger or in cases of emergency. This constitutional obligation is further enunciated in section 6 of the Health Act 2017; the National Guidelines on the Management of Sexual Violence; Ministry of Health’s National Guidelines for quality obstetrics and perinatal care; and, the various professional codes of conduct for doctors, nurses and clinical officers, which all recognize the fundamental duty that health care providers have in saving lives and preserving health.
On 7 June 2013, following the Presidential Directive on free maternity services, the then Directors of Medical Services, Public Health and Sanitation issued a joint Circular directed to all County Health Coordinators, Kenyatta National Hospital and Moi Teaching and Referral Hospital indicating that post -abortal care is an integral part of maternity services. This Directive means that postabortal care services must be administered in all public facilities.
Notably, statistics from the 2012 Ministry of Health Research Incidences and Complications of abortion, demonstrate that each year we expose an average of 465,000 women to unsafe abortion practices. Unsafe abortion remains one of the leading causes of maternal deaths, with 266 women and girls dying for every 100,000 unsafe procedures per year.
Additionally, in February 2018, the Ministry of Health released a study titled The Costs of Treating Unsafe Abortion Complications in Public Health Facilities in Kenya, which acknowledged that the government spends an estimated KES 510 Million (USD $5.1 Million) treating women who had developed complications from unsafe abortions. Contextually, the poor state of health infrastructure, low rates of skilled birth attendance, limited access to reproductive health services, early sexual debut and high rates of teenage pregnancy, further aggravate this dire state especially for women and girls from the most vulnerable and marginalized backgrounds.
Acknowledging that health care providers have a constitutional duty to save and preserve life and health as embedded in Articles 43 (1) (a), 43(2), and 26 (4) of the Constitution of Kenya, 2010; Aware that the Ministry of Health has reaffirmed this professional obligation through various directives, policies and guidelines; Cognizant of the government’s own statistics on maternal mortality and financial loses as a direct result of unsafe abortions;
We remain deeply troubled at the willful and deliberate attempt by the Board to curtail the constitutional duty of health practitioners in Kenya, and the concomitant right owed to Kenyan girls and women to receive the highest attainable standard of health care. We further remain troubled by the irrational decision of the Board to ban vital health services yet the complaint leading to the inquiry was grounded on advertising.
Towards this end, we therefore demand urgent interventions on the following:
With immediate effect, the Medical Board must vacate Order 1 of the Ruling dated 14th November 2018 on grounds of unconstitutionality, irrationality and illegality. The Medical Board must also immediately cease and desist from arbitrarily harassing health care institutions which are providing essential reproductive health services to women and girls in Kenya, within the ambit of the country’s Constitution and other laws.
That the Ministry of Health and County governments must meet their obligations, as articulated in international human rights law and echoed in the Constitution of Kenya (2010), to ensure access to information and safe abortion services within the confines of the law in all health facilities. This must be complemented by nation-wide dissemination and implementation of all existing laws, policies, standards and guidelines as well as accurate information on, access to safe abortion and post-abortal care in Kenya.
Aware that health is a devolved function, jointly with County governments, the Ministry of Health to undertake holistic and immediate interventions for the realization of sexual and reproductive health and rights for all as enshrined in Article 43(1) (a) of the Constitution of Kenya (2010), with a view to enhance uptake of dignified and quality health services.
Kenyan women, girls and their communities are counting on the government. We are confident in your commitment to uphold the right to the highest attainable standard of health, including reproductive health care, as well as the right to life. We trust that the steps above will urgently be actioned to deliver these rights.
Cc: His Excellency Uhuru Kenyatta Head of State and Government & President of Kenya
Sicily Kariuki, The Cabinet Secretary, Ministry
Hon Sabina Chege, The Chairperson, Parliamentary Health Committee.
Hon Josphat K. Nanok The Chairperson, Council of Governors,