CHAPTER ONE INTRODUCTION 1.1 Introduction and Background of the Study The International Conference on Population and Development (ICPD) has precisely given the definition of Reproductive Health as “the state of complete physical, mental, and social well-being and not merely the absence of disease or all infirmity in matters relating to the reproductive system and to its functions and processes.” This means that people should have a safe and satisfactory sex life for purposes of reproduction with the liberty to make decisions as to when and how often to do so together with the right to information and access to safe, effective, affordable and acceptable methods of fertility regulation of their own choice.
Reproductive health care is similarly defined as:”the collective methods, techniques, and services that contribute to good health in reproduction and their well-being by preventing and solving reproductive health issues which also includes sexual health for purposes of life enhancement and personal relationship.” It is therefore not merely to counsel and care related issues on reproduction but is also for stopping sexually transmitted diseases” For the last two decades, some human rights debate had been going on in the international arena on what constituted sexual reproductive health rights (SRHR). United Nations General Assembly later diffused these debates with the adoption of International Covenant on Economic, Social, and Cultural Rights’ (ICESCR). It encouraged the State parties to create measures to ensure everyone enjoys the highest attainable standard of physical and mental health within its territory. It further allows people to reproduce, regulate their fertility and women to go through pregnancy and childbirth safely and without discrimination in any way. The SRHR controversies, however, originated from the liberal activists on one hand and the conservative or restrictive activists on the other. The developed countries adopted the liberal approach while the developing countries resorted to restrictive approaches, which included the enactment of laws that limited the enjoyment of these rights and the extent to which the citizens could be able to take control of their own sexual and reproductive health rights issues.
Many societies and governments, however, for the last two decades, have realized that legal prohibitions on reproductive health options tend to endanger women’s lives. According to the World Health Organization (WHO), an estimated twenty million deaths of women occur yearly because of reproductive health complications. However, nineteen millions of these deaths occur in developing countries with only a million maternal deaths occur in developed countries. The International developments on SRHR have focused its redefining and expanding it to address the full range of the needs of women. This dissertation analyses the realization of sexual reproductive health rights in Kenya by focusing on the institutional, policy, and legal frameworks in promoting and protecting this right. The Constitution of Kenya 2010 introduced for the first time since Kenya attained independence substantive gains towards the realization of SRHR by women by recognizing the International Covenant on Economic, Social, and Cultural Rights.
The historical perspective of SRHR for women before the promulgation of the new Constitution was not an admirable one because Kenya had restrictive sexual reproductive health laws and policies, in the Penal Code and in the Ministry of Health’s National Guidelines on the medical management of rape and sexual violence. Due to this restrictive sexual reproductive health laws and policies, women in Kenya have been trying to control their rights both within and outside the existing legal framework to no avail thereby engaging themselves in very harmful practices in a bid to assert their rights to privacy and dignity. Like many other developing countries, Kenya considered SRHR with reference to the population policies that focused on Family Planning issues that aimed at slowing down population growth before the promulgation of the new Constitution of 2010. This health aspect relating to safe motherhood and family planning services offered by the public health sectors of government hospitals in Kenya were not rights per se. A few groups including women were associated with the advocacy and awareness programs on SRHR and had limited knowledge and information on matters relating to family planning. Information on a matter touching on SRHR issues was not entertained since it was immoral and dirty for open discussion according to the society and liberal feminist groups.
The typical patriarchal and societal norms and beliefs associated with sexuality by the people in Kenya viewed sex and reproductive health issues and practices as very private matters. The discussions touching on SRHR was taboo in public. The advocates for sexual and reproductive health rights, safe abortion, and any other reproductive choices to anybody within the society were very difficult to propagate under such cultural believes and environment. Retrogressive cultural practices such as Female Genital Mutilation (FGM) also known as female circumcision is widely practised by many communities and tribes in Kenya like the Kisii, the Maasai, the Swahili, the Mijikenda, the Meru, the Embu, and the Kikuyu tribes that constitute approximately 38% of the women aged 15-49 years. The Prohibition of Female Genital Mutilation Act does not allow this harmful practice by any of the cultures in Kenya despite the existing practices of the mentioned tribes. This harmful cultural practice includes marital rape and child marriages outlawed by the Kenya Children Act.
The state, despite the existence of the laws, has not stamped its authority to abolish these practices due to the reluctant officers failing to implement the law and clandestinely in practice. 1.2 Statement of Research Problem The Constitution of Kenya 2010 recognizes that the general rules of international law shall form part of the laws of Kenya. It further recognizes that any treaty or convention ratified by Kenya shall form part of the laws of Kenya. These provisions are vital and in essence, they imply that the general rules of international law relating to reproductive health form part of Kenya’s domestic legal order.
The gains made in advancing sexual reproductive health rights by the new Constitution of Kenya 2010 under Article 43(1) (a) allows the highest attainable standard of health including the right to health care services and reproductive health care. The new Constitution, however, tends to limit this right by outlawing abortion except on exceptional permissible circumstances. These circumstances are for instance where the opinion of a health trained professional is obtained, or where there is an emergency medical treatment needed on the patient, or that the mother’s life or health is in danger and finally if such an abortion is permitted by any other written law. The new Constitution further places a strong obligation on the government to ensure that all persons, including women seeking post-abortion care or emergency abortion services, receive necessary medical treatment.
The inability to pay for services, lack of health care providers or institutions, private objections to providing certain types of care and stigma-related delays in care are impermissible and unconstitutional grounds on which to deny emergency treatment, including abortion-related emergency treatment. According to the Committee of Experts on Constitutional Review, a “trained health professional” meant doctors, clinical officers, nurses and midwives who have attained training in the medical field did not include quarks. They made it clear that trained medical practitioners conducted an abortion. These services were however limited in rural areas and as a result, the poor rural women hardly had access to the medical facilities, which usually lacked trained medical personnel. The Penal Code however under sections 158-160 criminalizes abortion by postulating and stating that it is an offence to procure an abortion and or helping a woman procure it.
1.3 Justification of the Problem Despite the existing wealth of literature on the regional and international law on the recognition, promotion and protection of SRHR for women generally, an apparent scarcity and or disregard for this right exist in Kenya despite the available legal, institutional and policy frameworks that are supposed to protect and promote them. These rights are very important and there promotion and protection are fundamental whereupon the State is under legal duty and obligation to respect, protect and ensure that they are fulfilled in adherence to the ratified international and regional instruments for the protection of SRHR. Consequently, and despite the promulgation of this new constitution and the recognition of the SRHR, this sector of health has remained underdeveloped and the state has not met the expected needs of women to reproductive health as was intended. Women have continued to suffer mistreatments in the hands of the state agents whenever they are asserting their sexual reproductive health choices and management.
They have often faced arrest and prosecutions together with their health providers whenever they seek assistance particularly on issues of abortion services This research, therefore, is justified to investigate the factors that impede the realization of sexual reproductive health rights in Kenya despite the existing policies, legal and institutional frameworks for the promotion and protection of the rights. It further seeks for answers as to what Kenya can do to enhance the SRHR to its women. This study will make a close look at a few countries in Africa notably South Africa that has embraced the liberal approach and succeeded in promoting and protecting these rights for their women. 1.4 Research Questions a. What is the conceptual framework for sexual reproductive health rights? b. What are the regional and international legal instruments for the promotion and protection of the sexual reproductive health rights? c. What are the institutional, legislative and policy frameworks for the promotion and protection of sexual reproductive health rights in Kenya and are there any impediments to their promotion and protection? d. What can Kenya learn from other successful jurisdictions like South Africa and others in promoting and protecting SRHR for its women? 1.5 Research Objectives a. To examine the laws governing sexual and reproductive health in Kenya and the extent of their development b. To analyse how the new constitution has advanced and the extent to which sexual and reproductive health rights to women in Kenya has been achieved; c. To determine whether there is a need for Kenya to liberalize its national/domestic laws that deal with sexual and reproductive health rights; d. To examine the existing international legal instruments directly affecting the SRHR for women in Kenya. e. To analyse the promotion and protection of sexual reproductive health rights in other jurisdictions like South Africa and the lessons for Kenya in enhancing its women SRHR. 1.5 Research Assumptions The assumptions that shall guide this study are that: a. The new Constitution of Kenya has put to rest prejudices of women concerning their sexual and reproductive health.
b. Women still do not have full control of their sexual and reproductive health choices under the new constitution of Kenya. c. Liberal sexual and reproductive health law is the only way to full realization of SRHRs for women in Kenya. d. Enactment of a legislation dealing with sexual and reproductive health is the only way through which Kenya will fully realize its SRHRs for women. e. The women in Kenya will lead a better life if the SRHR fully implemented. 1.6 Research Methodology The research methodology employed in this dissertation is mainly desktop research, based and relying on primary and secondary information from national/domestic, regional and international legal, and policy documents on issues of sexual and reproductive health rights. The research relies upon the library reviews of the writings of legal scholars on books of law, journals, articles and discussion papers and reports on legal knowledge pertaining to sexual reproductive health rights issues.
In order to achieve this aims the researcher made use of the works of Ruth Dixon Muller, Kitty Arambulo, Hendricks, Aart, Toebes Brigit, Lilian Chenwi, Danie Brand, Margaret Brazier and Cave among the renowned proponent and scholars of sexual reproductive rights. These sources underpin the qualitative method in this research and are a critical and analytical based research. 1.7 Significance of Research This research will be valuable to individuals, directly and indirectly, involved in health, sexual reproductive and gender-related issues and advocacy programs, as it expounds the issues which have been preventing women from being in absolute control of their sexual reproductive health. It can also assist legal scholars in pursuit of legal enrichment in these diverse fields of law related to reproductive health.
1.8 Literature Review Ruth Dixon-Mueller provides that there exist linkages between sexuality and reproductive health but irrespective of that, every woman has a right to reproductive health services. She states that reproductive health includes being able to regulate one’s own fertility safely and effectively; being able to understand and enjoy one’s own sexuality and being able to remain free of disease, disability or death associated with her sexuality and reproduction as well as being able to bear and rear healthy children. Bulterman, M., Hendricks, A., ; Jacqueline Smith make same provisions with reference to sexual and reproductive health. The authors, however, failed to consider the cultural setup and inequalities experienced between men and women. It is unclear how Kenya can promote and protect those rights by the male counterparts in assisting women in realizing the SRHR.
Kitty Arambulo states that there is a need for limited means of monitoring sexual reproductive health rights to ensure compliance and fulfilment of the rights. She argues that economic and social rights are at least of the same importance as civil and political rights. She adds that the formulation chosen for these rights bolsters the argument that the normative contents of these rights are vague and insufficiently defined. She argues that the choice of formulation provided countries of two separate covenants with more tangible support for their argument that economic and social rights do not have the same legal nature as civil and political rights. She further argues that civil and political rights are positive and justifiable rights fundamental as human rights and that economic, social, and cultural rights are mere objectives to be attained rather than rights to be protected, they are to be realized progressively hence have a compulsory system of periodic reporting.
The writer did not explain how the State could realize the SRHR since they remained largely non-justiciable rights with no enforcement mechanisms in place in, unlike the civil and political rights that are justiciable with an established mechanism to enforce them. In the Vienna Declaration and Program of Action (VDPA), all human rights are universal, interdependent, and interrelated. The community of nations are required to treat human rights fairly and equitably on global footing, and emphasis. The Vienna Convention and Program of Action is an important piece of legislation and despite its importance, it did not provide for the SRHR enforcement mechanism among the State parties to ensure their compliance.
According to Hendricks, promotion, and protection of human health is intrinsic to human dignity and is the core principle underlying human rights law. The author states that individuals who are denied access to health services amount to infringements of their human dignity. He argues that given the interrelatedness between human health and human dignity, health-related issues are within the framework of human rights. Some specific health issues, however, within the framework and context of the right to life, privacy and the prohibition of torture and inhuman treatment.
The broad underpinning of health concerns confirms the notion of the interdependence and indivisibility of human rights, as set forth inter alia in the Vienna Declaration. The State agents due to illiterate nature of their service providers often infringe the right to life, privacy, and dignity. Toebes Brigit states that in developing countries special sexual and reproductive health given to women generally is concerned with prenatal and postnatal care. Developed countries on the other hand deal with complex issues of cervical and breast cancer as well since the basic reproductive health rights are given.
He further observed that harmful traditional practices such as female genital mutilation, are detrimental to women’s’ right to sexual and reproductive health in developing countries. More so, they argue that legislation prohibiting such practices as violating women’s reproductive health is never enforced. The authors further provide that abortion is illegal in developing countries and that there are inadequate facilities for such operations, and the lack of blood supplies have led to an increase in the mortality rate due to clandestine abortions. Margaret Brazier and Cave provide that medical care begin long before a baby is born. The authors observe that a child’s disability is to detect when the mother has an ultrasound or amniocentesis. The mother is entitled to an abortion in such cases.
More so, that surrogacy and Vitro fertilization has long developed an entitlement to women as part of the sexual reproductive health rights. Sexual and reproductive health according to the authors Margaret Brazier and Cave is within the private domain of each individual hence women should embrace assisted sexual and reproductive health for their individual benefits. Peter Sternberg and John Hubley make it very clear that men’s involvement in women’s sexual reproductive health is a strategy for sexual and reproductive health promotion. They further posit that sexual reproductive health matters should be from a masculinity focal point, as they are seriously part of the solution.
Lilian Chenwi asserts that Economic, Social and Cultural Rights unlike ICCPR were neglected and had less protection through enforcement mechanism. These rights have no benefits and an established procedure for individual complaints mechanism like the civil rights. According to her, these rights are pragmatic in nature since to realise them they have to be gradual in their implementation since they are more of a political nature incapable of enforcement. The writer further opines that the United Nations Committee on ESCR and academicians have a role to play in dispelling this notion. The courts have increasingly been willing to apply them even in those countries where these rights are using them as guiding State policies. Finally, Patricia Kameri Mbote states that one cannot look at reproductive health care without looking at issues related to voluntary sterilization, pregnancy termination, HIV-AIDS, and the right to food and nutrition.
Women are at a greater risk of nutritional deficiencies than men due to their reproductive role are. 1.9 Structure of the Dissertation Chapter 1 is the introductory part of the dissertation and it attempts to give meaning and understanding of the research and background account of the genesis of the segregation and discrimination visited on the women with respect to reproductive health in Kenya. It sets out the aims, objective, purpose, justification, questions, and the method of collecting data adopted for this research. Chapter 2 discusses the conceptualization and legal framework of SRHR and the obligations and responsibilities of the State that come along with it under the relevant regional and international legal instruments for the promotion and protection of sexual reproductive health rights. Chapter 3 discusses the legislative, policy and institutional framework for the promotion and protection of sexual reproductive health rights in Kenya.
It further ventilates on the overarching provisions, structure and the progress made towards achieving the promotion and protection of SRHR for women and their empowerment and the factors that are impeding its promotion and protection. Chapter 4 discusses the promotion and protection of sexual reproductive health rights in other jurisdictions, with a keen interest to South Africa, a developing state that embraces liberal approach in regulating the reproductive health of the women. The chapter also discusses the gains of such an approach and the lessons Kenya should learn from its approach. Chapter 5 discusses the findings and recommendation section of the research; it will provide the necessary steps explored to advance further sexual and reproductive health for women and their empowerment.
CHAPTER TWO CONCEPTUALIZATION OF SEXUAL REPRODUCTIVE HEALTH RIGHTS 2.1 Introduction This chapter assesses the theoretical and contextual frameworks of SRHR. It analyses the definitions, scope, nature, and limitations of the rights. It also ascertains and analyses the impact of SRHR for women and its importance in reproductive health alongside other aspects of recognized human rights. In conclusion, it will analyse the regional and international legal instruments, which promote and protect the SRHR for the women globally.
2.2 Defining the Rights Effective access to reproductive and sexual health rights and services is vital and thus the campaigns for international access to them by international and national organizations are those, which are universal according to the World Health Organization (WHO). SRH evolves and changes over time and they vary from place to place based on various factors like religion where SRHR for instance have been frustrated by Islamic fundamentalists in Bangladesh. The Islamic fundamentalists there react against the assertion of women’s reproductive rights through repressive interpretations of Islamic law. Legislation on gender on the other hand has intrinsic connection between genders based power, sexuality and reproductive health which ultimately have an effect on the sexual and reproductive rights of an individual.
SRH on social setting also show how women’s perceptions of the right to be free from physical and sexual violence from their partners vary, and especially for those coming from the sub-Sahara region they are sometimes constrained by societal tolerance of male violence against them and also the concepts of sexual obligations within marriage. The risk of dying from an unsafe abortion is exceptionally high in sub-Saharan Africa. A woman living in sub Saharan Africa is 15 times more likely to die from an unsafe abortion than is a woman living in Latin America, and 75 times more likely than is a woman living in a developed country. Young women in developing countries are most at risk, with almost half of all mortality attributable to unsafe abortion occurring among women less than 25 years of age.” It also affects the judicial trends but its lack necessitates an increase in morbidity and mortality rates. This gives us a more clear approach to the understanding of these rights to bring about the balance of interests and certainty because of their intrinsic connections since they play a critical and vital role in promoting sexual and reproductive health.
According to the positivist’s theory, a right finds its legitimacy from the law and that without the law we cannot have any right(s). An individual’s interest becomes a right when it becomes a duty upon another person or institution to know and respect that interest. Explicitly, a sexual and reproductive health interest would be a right only in so far as other persons bound by related sexual and reproductive health duties. The binding force that creates a duty may be legal when the right is a legal right or moral when the right is a moral right and or can be both legal and moral rights.
A claim to a right prevails over the preference of another right bound by a duty to respect that right or to disregard it; that is, rights ‘trump’ over other interests because they bind individuals or institutions to observe them. Reproductive health as was defined by ICPD, simply meant to allow people to have a good and safe sex life with the capability to reproduce and further have the freedom to decide if, when and how often to have it. This definition, however, does not fully apply to women in Kenya due to the existence of several impediments and challenges facing them daily. They are experiencing various inequalities in their relationships that result in the infringement of their sexual and reproductive health rights and in addition to the same; they are experiencing long paths to justice having encountered many challenges and barriers claiming their rights that to others reached a dead end. Intrinsic to this also is the right of women to information on how to access safety and acceptable cheap methods of fertility regulation of their choice. The sexual reproductive health rights are rights which belong to everyone subject to an individual’s physical and mental wellbeing as well as very fundamental to the development of many goals which ultimately includes those related to gender equity, health and poverty reduction.
The scope of these rights is immeasurable in the African conservative society and background because the discussion on the sexual and reproduction matters are considered inappropriate and dirty for open discussion and as such many women avoid it and as a result lack information and knowledge on them. The SRHR are internationally recognized rights that have positive implications for the protection of reproductive health to the women who have been facing discrimination by various factors such as religion, age, education, locality, and ethnicity. These factors have a relation and linkage to poor sexual and reproductive health rights through poverty due to lack of control over the limited resources that are so scarce. It further states that for young adults or adolescents, obstacles in relation to sexual and reproductive rights are in three levels such as inadequate knowledge on sexual and reproductive health, the health system level such as provision of products and services, which do not meet the adolescent needs, and lastly the social-cultural level with factors such as religion and ethnicity. A number of separate human rights aspects to sexual reproductive health rights do exist and these include the provisions of essential medicines, HIV/AIDS, and children’s health where according to J.
Cottingham et.al. According to him, human rights have been incorporated in diverse ways into the approaches used to address sexual and reproductive health, as well as other health issues. The 1994 International Conference (ICPD) also articulated this health rights application of human rights norms and standards to the reproductive and sexual health would ultimately advance the protections of the sexual and reproductive rights. Though it is very difficult to claim a comprehensive state of the art, well defined, and understood the definition of sexual reproductive rights that is universally accepted, the World Health Organization (WHO) has defined and explained on what constitutes this right; these rights are fully inclusive and incorporative of other human rights. This means that the lack of their fulfilment results in the lack of attainment of these rights even though health is critical to sexual rights; not all sexual rights fall within the health realm. Sexual rights have gained acceptance in the human rights arena because they do make a very strong claim to universality and also because they are based on ethical principles of bodily integrity, personhood and the right to self-determination, the principle of equality and diversity and this implies that sexual health is certainly therefore attainable through sexual reproductive health rights.
The deliberate lack of incorporating sexual and reproductive health rights into the Millennium Development Goals (MDGs) raised(s) eyebrows on the importance of these rights Poverty and reproductive health are intricately related. Poverty is associated with high-risk behaviours, such as rape and unsafe sex in exchange for monetary incentives. These behaviours put young women at risk of unintended pregnancy and sexually transmitted infections such as HIV, which in turn affect their reproductive health. This position clearly explains the correlation that exists between poverty and the rights whereby poverty is both a cause and an outcome for poor SRH.
Contraceptive uses related to the educational level of the woman and those highly educated women who are more likely to use modern contraceptive methods than the less educated women are. The nature of sexual and reproductive rights is equally significant, is depicted as positive, justiciable and welfare rights, and is both affirmative demands for women rights to be able to exercise them as citizens and for them to be able to demand for protection against human rights violations. These rights do and offer a set of ethical principles which include bodily integrity, personhood, equality and diversity in the society and their impact is quite positive and extensive as it is not only limited to an individual, family, and society but it does extend beyond the national boundaries incorporating the whole world. Sexual Reproductive Health Rights are fundamental to women and their promotion and protection as human rights are inevitable. Along with SRHR, also include the right to have access and enjoy participation on scientific progress, by ensuring that women and adolescents can determine whether and when to bear children, how to control their bodies and their sexuality, access essential SRHR information and services, and a life free from violence. 2.3 NATURE AND SCOPE In order to understand the nature and scope of SRHR rights, there is need to discuss them under four different perspectives and these are SRHR as positive rights, justiciable rights, welfare rights, and as human rights.
This will conclude by the discussion on the limitations of these rights applications SRHR as Positive Rights Socio-Economic Rights are positive rights because they create obligations that require positive action by the states. While civil and political rights impose restraints on the exercise of state power and therefore negative rights, social and economic rights extend the scope of the exercise of the state power hence regarded as positive rights. These rights require individuals to conform to those standards. The obligations for Socio-Economic Rights taken by corporate actors and the State is required to take up necessary steps and measures in ensuring that their achievement, fulfilment, and realization are fulfilled. These Social-Economic Rights depend on other persons for their protection, promotion, and realization. Sexual and reproductive health rights, however, do require such positive duties to be in place and in action to ensure that, the State distributes and allocates the available resources equitably by taking into account the vulnerable members of the society including the women.
States, therefore, can use its regulatory powers and ensure that these rights are for all and or provide public healthcare services particularly to cater for the sexual reproductive health rights of women who are vulnerable members of the society. SRHR as Justiciable Rights Justiciable rights are rights that give rise to positive obligations. Justiciability of these rights requires progressive realization by taking into consideration various factors and circumstances of their availability by the state. The Justiciability of the SRH rights is based and determined by the assumptions on the role and competency of the courts to hear and determine the cases of infringements of their rights if not fulfilled or realized or have been denied or violated. The courts facilitate the hearing of silenced voices by giving them a voice to articulate their grievances and the alleged oppressions at the national level and on the international arena. Other various mechanisms such as the individual complaints mechanism that the women or third parties can use to vindicate or assert their SRH rights are also equally applied.
SRHR as Welfare Rights Welfare rights are the rights, which are regarded as an essential pioneer to the attainment of an individual’s social and economic rights and freedoms because they are resource dependent and cannot be satisfied where there is the lack of resources. These welfare rights’ dependency on the resources guarantees their fulfilment if provided for by others if one cannot be able to afford them alone. This SRHR have positive outcome since they impose obligations on others for their fulfilment. SRHR as a Human Right Human rights are rights inherent to all human beings, irrespective of their creed, nationality, place of residence, sex, racial or ethnic origin, colour, religion, gender, language, or any other status. We are all equally entitled to our human rights without discrimination. According to the United Nations International Covenant on Civil and Political Rights (ICCPR), and the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR) all human rights are indivisible, interrelated, and interdependent on each other such that any improvement of any one of those rights facilitates the advancement of those other rights.
The deprivation of one right adversely affects those others and since human rights are also inalienable; they should not deny, except in accordance with due process of the law. In this narrative, therefore, sexual reproductive health being a right must be accorded due attention by the states so that they be respected, fulfilled and promoted as part of its duty. Human rights, therefore, entail rights, obligations, freedoms, and entitlements as was envisaged in the CESCR Committee on Economic, Social and Cultural Rights, General Comment 14. The universal human rights laws recognized by states are by the ratification of international treaties, applications of customary international law, general principles, and other sources of international law.
States are obliged to include limitations on the action they may decide to take on any right including sexual reproductive rights called negative obligations and on the other hand, it includes the particular proactive measures that taken by the state in fulfilling their obligations, which are also referred to as positive obligations. The duty of States to promote and protect all human rights and fundamental freedoms regardless of their political, economic, and cultural systems was at first emphasized in the Universal Declaration of Human Rights in 1948. Kenya has ratified a number of human rights treaties thereby heeding to its international obligations in their observance, which includes the promotion and enhancement of sexual and reproductive health rights. This treatise and conventions obligate the member states to promote, respect and fulfil or realize the rights as provided for under Article 2 of the CEDAW convention. Limitations of the rights The need for the limitations of the rights according to the International Council on Human Rights Population (ICHRP) is to ensure that respect for the rights of others is a core value of human rights. These limitations are to ensure the free enjoyment of the rights without any distinction of any kind whatsoever on the right’s needs.
SRHR are also limited in specific situations clearly spelt out in the Constitution of Kenya 2010. The article provides the extent to which those limitations are reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedoms. The constitution however under Article 25 has enlisted circumstances under which this fundamental rights and freedoms may not be limited. In the international human rights law, limitations are permissible when they are necessary to achieve the overriding objectives pertaining to rights to health and the rights of others. The state may subject such rights only to such limitations that are determinable by law as may be compatible with their nature and in promoting the general welfare of the society The Limburg principle also explains that the ESCR under its article 4 was to ensure that there is protection of individual rights permissible as limitations to be imposed by the state. The Limburg principles further opined that laws and rules imposing limitations shall not be arbitrary and or discriminatory in any way.
2.4 STATE OBLIGATIONS ON SRHRS Reproductive health is being in a state of complete mental, physical, and social well-being and not merely the absence of any infirmity nor disease. This certainly does incorporate the sexual and reproductive wellness and wellbeing of an individual. The right to reproductive health according to L. Gable is a distinct human right and not merely as a subcomponent of the right to health or as one of several rights included within a generalized collection of reproductive rights. He further opine that while reproductive health rights do indeed exist at the intersection of discourses about reproductive rights, the right to health, and other human rights, conceptualizing reproductive health as a human right acknowledges the fundamental importance of reproductive health in achieving overall health. Since the evolution of human rights from natural rights, and in particular on the sexual and reproductive health rights, governments have increasingly faced both specific and immediate obligations towards their implementation and fulfilment which can be applied to particular circumstances.
These obligations do encompass and envisage both short-term and long-term obligations geared towards the protection, respect, and fulfilment of women’s reproductive health and its paragraph 30 on general legal obligations provides that… “States parties have immediate obligations in relation to the right to health, such as the guarantee that the right will be exercised without discrimination of any kind (art. 2.2) and the obligation to take steps (art. 2.1) towards the full realization of article 12.
Such steps must be deliberate, concrete, and targeted towards the full realization of the right to health. This is on the presumption that the state is the custodian of the people and that it should ensure the realization of their rights. In the General Comment No 3 emphasis upon the importance of Article 2 of ESCR being that it a mandatory provision meant to enable states to realize the SRHR and this enables states to take appropriate measures in providing finances, Educational, Judicial and social empowerment towards the promotion and protection of the rights. Further, in the General Comment 14 to Article 12 of the ESCR on state obligations to respect, protect, and fulfil closely relate to article 12 of CEDAW in General Recommendation No. 24 on Women and Health. The committee noted in paragraph 7 that the realization and achievement of women’s right to health is when the States parties fulfil their obligation to respect, protect, and promote women’s fundamental human right to nutritional well-being throughout their lifespan by means of a food supply that is safe, nutritious, and adapted to local conditions.
To this end, States parties should take steps to facilitate physical and economic access to productive resources, especially for rural women, and to ensure that they get special nutritional need of all women within their jurisdiction The States have three different kinds of general legal obligations to the implementation of human rights. These obligations are a tripod and include: a. The obligation to respect rights, b. The obligation to protect rights, c.
The obligation to fulfil rights They are tripod obligations to SRH, are intertwining, and they cannot be separated. The State as part of its mandate performs them domestically and as part of its obligations to the international law once, it accedes and ratifies them. This is also on the fact that human rights have become a benchmark for assessment of various activities of other states. In relation to their obligations to protect, fulfil and respect the rights and freedoms of their people.
The state must be able to ensure that relevant and sufficient information on sexual and reproductive health rights as a whole are available within the state and be accessible in terms of physical and economically of good and proper quality. Civilised states ought to respect the human rights of her citizens certainly, because they are the primary custodians of these rights and there is no other way to express statehood than to vigorously seek to protect them. And that states are only meaningfully in existence when they discharge their duties, the fundamental ones being the regime of the positive duties imposed by economic, social and cultural rights and off course the more a state’s discharges these duties, the more it becomes a responsible international player. The Obligation to Respect The obligation to respect means to avoid depriving a person of his or her basic rights. In the CEDAW General Recommendation No.
24 of Article 12 (Women and Health), States have a duty to respect and to refrain from interfering directly or indirectly with the enjoyment of women’s SRHR The obligation to respect rights requires States parties to refrain from obstructing action taken by women in pursuit of their health goals. States parties should report on how public and private health-care providers meet their duties to respect women’s rights to have access to health care. For example, States parties should not restrict women’s access to health services or to the clinics that provide those services on the ground that women do not have the authorization of husbands, partners, parents or health authorities, because they are unmarried or because they are women. It also obligates the state to refrain from legislation or conduct which has the effect of depriving or limiting the people’s rights. The States have an obligation to avoid enacting legislation, orders, policies, or rules that are and will negatively interfere with an individual’s sexual and reproductive health.
It also requires states to make laws that are to ensure equality and equal protection of the law in absence of discriminative tendencies based on gender and reproductive health rights law for the women. The Obligation to Protect The states are under obligation to do whatever they can in their position to prevent third parties from interfering with or infringing with any of these rights under the General Recommendation No. 24 of Article 12 of the Convention (Women and Health) adopted at the Twentieth Session of the CEDAW in 1999. It also requires the state to be able to carry out investigations and inquiries pertaining to any issue or likelihood of any violation or infringement. This investigation will ensure that victims of the violations of sexual and reproductive rights have had access to timely and independent redress and that special consideration is taken and support those women and girls who are vulnerable or marginalized because they encounter significant barriers in realizing their sexual and reproductive rights. The State also should provide funds and grants to researchers to carry out extensive research on the area of sexual and reproductive rights to protect the women’s infringed rights.
The Obligation to Fulfil The States obligation or duty to fulfil requires it to take measures and steps in the form of legislative, administrative, budgetary, and or judicial developments to be able to achieve the full realization of the sexual reproductive health rights to the maximum extent on their available resources. SRH being a socio-economic right obligates the State to ensure that the right is realized progressively (phase-in) which depends on the availability of resources. The State in this regard will be required to take positive measures to ensure that it assists individuals including communities to realize their rights to SRHR, to ensure that immunization is provided and also provisions of proper nutrition is prioritized at such occasions . 2.5 INTERNATIONAL AND REGIONAL INSTRUMENTS The fundamental nature of SRHR as has been discussed herein has accorded them an appreciably high ranking in international law articulated by the numerous international law instruments, which exemplify it; one would conclude that the framers of the substance of international law had in their minds that these rights are essential. Though are provided for in numerous instruments both in international, regional, and domestic levels as aforementioned, it remains inapplicable in most municipal laws of most states until they are domesticated and be complied with by these states as part of their customary international law.
Some of the major international documents that recognize the SRHR are as hereunder: The Universal Declaration of Human Rights (UDHR) The UDHR advances the international protection of human rights without any distinction or discrimination. Thus, it has attained the status of International Customary Law (ICL) and hence legally binding instrument. It emphasizes on state parties coming up with national measures that are in place for protecting and promoting human rights. It recognizes the sanctity of the right to health by stating that all persons have a right to a standard of living adequate for the health and well-being of all people.
It further recognized that inherent dignity and equality of all members of the human family is the foundation of freedoms, justice, and peace in the world that requires that human beings be born free and equal in dignity and right. Article 25 provides that everyone have a right to a standard of living adequate for health and the wellbeing of himself and his family. The International Conference on Population and Development (ICPD) The ICPD is very firm in the recognition that a woman’s right to reproductive and sexual health is important to her health. The 1994 conference recognized reproductive health and rights and was a major paradigm shift in prior international thinking about it in terms of the population and development. It also recognized gender equality and women’s empowerment as the basis for population and development programs.
The ICPD Program of Action (PoA) is very efficient in its recognition of reproductive health and rights, women’s empowerment and gender equality as cornerstones of population and development Convention on the Elimination of all forms of Discrimination against Women (CEDAW) CEDAW is one of the first international human rights instruments promoting sexual reproductive health rights and for prohibiting all forms of discrimination in society including women. Kenya ratified CEDAW and committed itself to ensure that women and men receive the same treatment on sexual reproductive health rights and that the parties have to take all appropriate measures to eliminate discrimination against women in the healthcare. The state was further to ensure that both men and women have equal access to health care services including family planning. It further requires that parties provide appropriate health services for pregnancy and post-natal care, and grant free services where necessary. It also enshrines human rights to sexual reproductive health rights and it is part of the government obligation to implement these rights and fully monitor them.
The International Covenant on Economic, Social, and Cultural Rights (ICESCR) The ICESCR provides the sexual reproductive health right for everyone’s enjoyment of the highest attainable standard of physical and mental health. The covenant further provides for the enjoyment of these rights equally and in the same measure between men and women. It obligates the State to fulfil, promote, and ensure SRHR implementation. It specifically goes further to mandate State parties to take steps to reduce stillbirth rate and infant mortality. The Economic, Social and Cultural Rights bind ratifying states so that they discharge their obligations individually and through international assistance and co-operation to the maximum use of their available resources in order to achieve progressive realization of SRHR. The Beijing Declaration and its Platform for Action (Beijing Declaration) The Beijing Declaration reaffirmed the fundamental principle that women and girls rights are inalienable, integral and indivisible part of human rights.
It was to advance the goals of equality, development, and peace for all women. In June 2000, the General Assembly adopted a political declaration reaffirming member states committed to the objectives of the Beijing Declaration and Platform for Action is very clear in its advancement of rights and freedoms of women. It recognizes that women have a right to control all aspects of their health and, in particular, their own fertility. It states that governments have obligations towards their implementation and further that the member states should ensure equal access and treatment between men and women in education and healthcare matters and should do all that is necessary to enhance that women’s sexual and reproductive health, as well as education, are provided. It in this aspect that Kenya has endeavoured to create institutions such as the Kenya Gender and Equality Commission and the office of the Ombudsman and also the Kenya National Human Rights Commission under Article 59(4) and (5) of the New Constitution. African Charter on Human ; Peoples’ Rights (ACHPR) It is a regional instrument geared towards the promotion and protection of individual human rights.
It provides for equality before the law. This Charter further outlines the principles of non-discrimination based on sex, age, ethnicity, race, in any sphere of life in the enjoyment of all rights. It establishes the African Commission on Human and Peoples’ Rights and acts as a supervisory body to oversee the protection of the conferred rights enumerated and declared therein and that it shall draw inspiration from international law on human and peoples’ rights. The Charter provides for the right to the highest attainable standard and state of physical and mental health and further states that every individual is and shall be entitled to the enjoyment of these rights and freedoms without any distinction or discrimination. It further emphasizes that state parties have an obligation to ensure that necessary measures to ensure the protection of the rights to health of the people. Kenya ratified the ACHPR and hence is bound to respect protect and fulfil the rights of women enshrined in the document.
The African Charter declares for equality of all people before the law also obligates states parties to eliminates all forms of discrimination against women and ensure for the protection of their rights woman and that of the child as stipulated in international instruments. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) It is also as referred the Maputo protocol and is the main instrument for the protection of the rights of women in Africa. It guarantees the right to health and sexual reproductive health rights in Africa and therefore an important instrument for the promotion and protection of SRHR in Kenya as it offers the most explicit recognition and protection of SRHR. Kenya is therefore obligated to refrain from acting in a way that negates the full realization of the rights recognized in the treaty.
The Maputo Protocol specifically calls upon states to ensure that the right to health of women, including sexual and reproductive health is respected and promoted by providing adequate, affordable, and accessible health services to women and by establishing and strengthening ante-natal, delivery, and postnatal health and nutritional services for women during pregnancy and while breastfeeding. The Protocol calls upon states to reform those laws and practices that discriminate against women. It further recommends that the states ensure that they have put in place the right to have family planning education and to provide adequate, affordable and accessible health services, which will include information, education and communication programmes to women especially those in rural areas. It recognizes women’s right to redress, requiring states to provide for appropriate remedies to any woman whose rights or freedoms are in violation.
The Rights of Women in Africa (Maputo Protocol), which Kenya ratified, outlines women’s right to abortion in a range of circumstances. These circumstances are that State Parties shall take all appropriate measures to protect the reproductive rights by authorizing medical abortion in cases of sexual assaults, rape, incest, and where such pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus It is for this reason that Kenya being a member of the protocol agreed to establish the National Gender and Equality Commission under Article 59(4) and (5) of the Constitution of Kenya 2010. It also led to the establishment of the Kenya National Commission of Human Rights and the office of the Ombudsman (The Commission on Administration of Justice). The States are under obligation to make sure that the rights of women to the health of women are maintained and respected. The protection guaranteed by the protocol include the women’s right to seek for the medical abortion in case of sexual assault, rape, incest and also in situations where the health of the mother and foetus’ mental and physical health is in danger.
African Charter on the Rights and Welfare of the Child The Charter’s adoption by the Organization of African Unity (O.A.U) was in 1990 and entered into force in 1999. Its adoption was for the protection of the rights of the African child against abuses and discrimination. According to the Charter on rights of a child, a child is any person below the age of 18 years. The Charter is operating under the child’s best interest principle. It articulates the children rights in Africa by taking into account the economic, social, and cultural diversity. The Children’s Rights Convention also affirms the right to “necessary medical assistance and health care,” “appropriate pre-natal and post-natal health care for mothers,” and “family planning education and services.
The protection of the rights of the child extends to the maximum extent possible for its survival and development. This means the States are under obligation to ensure that it gives the children the best protection for their growth and survival at all costs by ensuring that the is a reduction of childhood mortality rates. The best interest principle for the children’s rights by the State will translate it to the best attainable state of physi¬cal, mental and spiritual health. It is to ensure the reduction of infant and child mortality rates. It can also ensure appropriate care for expectant and nursing mothers, and further provide information to all sectors of the society on the advan¬tages of breastfeeding. Under the Charter, states are further obligated to take all appropriate measures to eliminate such practices, in particular, those affecting the health and life of children and those that are discriminatory, especially based on gender.
The Charter further ensures the protection of the expectant mothers of infants and young children from custodial sentences to ensure for their good care. It is on this basis that the enactment of Children is Act Cap in Kenya to ensure that the children’s rights protection in Kenya and give effect to the requirements of African Charter on the rights of the child. 2.6 Conclusion From the foregoing discussion, SRHR as has been defined; its scope and nature expounded in detail and further explained its limitations thereto. Various international documents mentioned in enabling us to understand the scope and nature of these rights. The chapter further discusses on how these rights are affecting individuals and the States and proceeds further to explain their roles and obligations they should take to ensure their promotion, protection, and implementation in line with the international legal document CHAPTER 3 SEXUAL REPRODUCTIVE HEALTH RIGHTS IN KENYA 3.1 Introduction Sexual reproductive health is part of health at large as has been contextualized in the foregoing chapter.
This right is indispensable for the exercise of many other basic human rights and is necessary for one to live a life with dignity and with the highest attainable standard of health articulated under Article 43(1)(a) of the Constitution of Kenya 2010. The SRHR in Kenya are available and enshrined in different legal and policy documents of which its main sources of Law include the Constitution of Kenya, the statutory laws, Common law, and Policy Documents of the State. It is in respect of this legal framework that analysis will be done on how far this right has been achieved and realized as is enshrined and obligated upon the State under various legislation including articles 21(2) of the Constitution of Kenya 2010 for its promotion, implementation, and fulfilment. 3.2 THE LEGAL FRAMEWORK The following documents hereunder constitute the main legal framework for the SRHR in Kenya:- Constitution of Kenya 2010 The jurisprudence in Kenya on sexual reproductive health is a milestone in the development of economic, cultural, and social rights, which were for a long time not given the constitutional enrichment until after the promulgation of the New Constitution of Kenya 2010. It is every person in Kenya has the right to dignity and respect and protection. It further guarantees every person the right to privacy.
Through these stated constitutional provisions, the State is further obligated to guarantee fulfilment of the individual sexual reproductive health of women, especially when seeking for medical services in health facilities since they will require their privacy and treated with dignity. According to the South African case of National Coalition for Gay and Lesbian Equal vs. Minister of Justice, human dignity is a civil right related to human health and hence its promotion and protection are crucial. In this case, the court held that common law and statutory law crimes of sodomy were unconstitutional as they violated the rights of equality, privacy, and human dignity. It further stated that it is unconstitutional and against human rights of individuals to criminalize private conduct of consenting adults that causes no harm to anyone else simply because such conduct fails to conform to the moral or religious views of a section of a society is not good. The Court held that everyone has a right to private intimacy that allows people to establish and nurture human relationships without interference from the outside community.
Justice Sachs went on to declare that it is not for the state to choose or to arrange the choice of a partner, but for the partners to choose for themselves. It is the core principle underlying human rights law and as such, denial of women from accessing health care services would be an infringement of this right. Sexual and reproductive health issues within the other rights framework such as the right to life, the right to privacy, and the right to prohibition of torture and inhuman or degrading treatment or punishment in context. A constitution, therefore, is the supreme law of the land and it takes precedence over all other laws in the country.
The Constitution of Kenya 2010 is one of the main legal frameworks on SRH under and categorized under the social, economic, and cultural policies. It is a fundamental duty of the State and every State organ to observe, respect, protect, promote, and fulfil the rights and fundamental freedoms in the Bill of Rights and the State is under a duty to ensure that the rights of the vulnerable groups including women are duly implemented. The New Constitution of Kenya 2010 for the very first time recognized the importance of the bill of rights and freedoms as it introduced the recognition of social, cultural, and economic rights alongside the civil and political rights. Individual’s rights are protected and promoted to preserve their dignity, the community and of the country at large.
It also promoted social justice and the realization of their full potential. The Constitution further guarantees the right to sexual reproductive health, which applies to all persons including children and binds all state organs. The State organs are required to ensure that there is a fair administrative action for protection and promotion of these rights by effective institutional structures for that purpose and to ensure women’s protection from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour. The Constitution too mandated Courts with the task of adopting an interpretation which tended to favour SRH rights and their enforcement amongst other rights and freedoms.
The High Court has the jurisdiction to hear and determine cases of SRH rights violations and then grant appropriate relief include a declaration of rights; an injunction; a conservatory order; a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights. It is worth noting that the sexual reproductive health though constitutionally protected, it is not absolute in Kenya since it is limited. The Kenya National Human Right and Equality Commission was established by the Constitution of Kenya 2010 to the effect that every individual who is alleging that any right or any fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened can lodge a complaint to it for deliberations and determination. The Commission is empowered by the Constitution to promote, protect, and enhance these rights by ensuring that there is compliance in their promotion and protection in the country.
For the Commission to perform its assigned functions, parliament was empowered to enact legislation in order to restructure it into two or more separate and independent Commissions to ensure that these are devolved functions to the relevant enacted Commissions for their promotion, protection, and enhancement. Consequently, three Commissions were enacted, Kenya National Commission on Human Rights, Commission on Administration of Justice (Office of the Ombudsman) and National, Gender, and Equality Commission. Penal Code of Kenya The Penal Code criminalizes abortion to some extent through its provisions and it provides that it is an offence to procure an abortion and helping a woman procure an abortion. Any person who acts with an intent to unlawfully procure a miscarriage of a woman, whether she is pregnant or not is guilty of a felony and is liable to imprisonment for a term not exceeding fourteen years. Any person who supplies anything with the knowledge that it is to procure an abortion is guilty of a felony and liable to imprisonment of up to three years.
A person will not be criminally responsible for performing in good faith and without reasonable care and skill a surgical operation upon…upon an unborn child for the prevention of the mother’s life if the performance of the operation is reasonable, having regard to the patient’s state at the time and taking into consideration all circumstances of the case. Many doctors and nurses found to have assisted in procuring and aiding women to abort were imprisoned. In R v Dr Nyamu’s and 2 others , the trial judge while interpreting section 214 of the Penal Code of Kenya, made a distinction between a foetus and a new-born baby by clarifying that a foetus cannot be a victim of murder since the aborted foetuses in question were born dead and therefore, was not capable of being killed. Procurement of an abortion though prohibited under the penal code of Kenya is however allowed under limited and exceptional circumstances in the penal code where a person who in good faith performs an abortion upon the mother of an unborn baby with the intention of preserving her life depending on her state of health at the time.
The Kenya Ministry of Health National Guidelines on the Medical Management of Rape and Sexual Violence provides that the termination of pregnancy is an option open to doctors if the conception of the foetus was because of rape. However, psychiatric evaluation and recommendation for the victim before the abortion is necessary. It states that the professional conduct can be analysed to mean carrying out an abortion when in the opinion of medical doctors attending to the patient is necessary in the interest of the mother or child. Carrying a full term pregnancy resulting from rape is a potential threat to a woman’s health and therefore a legal ground for procuring an abortion.
Several legal authorities and the government issued guidelines intended to interpret Kenya’s law to permit abortion and in cases of rape in order to preserve a woman’s sexual and reproductive health and this remained unclear as different interpretations arose. The Attorney General of Kenya on behalf of the State failed to give an elaboration on what was to be punishable under Kenya’s abortion laws. No technical guidance to health practitioners on the provisions of safe abortion was available bearing in mind that many clinical doctors lacked training and information on abortion. Clinical guidelines therefore did play a critical role in ensuring quality and consistency of care for patients. The lack of legal clarification and safe sexual and reproductive health guidelines is a significant obstacle to ensuring the provision of adequate sexual and reproductive health services permitted under the law.
These criminal provisions and other legal restrictions on sexual reproductive health rights have had a huge negative impact on the rights of women with respect to their rights. It is an infringement of the right to privacy of the women, right to dignity, and the right to autonomy in decision making. When the laws are highly restrictive, the women will seek to procure backstreet unsafe abortions. Sexual Offences Act The Sexual Offences Act is certainly an important legislation that protects the SRHR.
This it does by prohibiting and criminalizing offences such as rape and attempted rape, sexual harassment, trafficking for sexual exploitation, child sex tourism and prostitution, defilement and attempted defilement, the deliberate transmission of HIV or any other life threatening sexually transmitted disease, and sexual harassment that affects the female. Sexual health and reproductive health abuses are sexual related offences that are punishable in order to attain SRH. In the case of W.J. and another v.
Astarikoh Henry Amkoah and Nine Others, the court held the respondents responsible for the petitioner’s (students) sexual abuses by their teachers because are like their guardians hence duty bound to protect them from sexual and gender-based violence or harm when they were with them. The respondent’s actions, therefore, were a violation of their constitutional rights to health, dignity, and education; hence, failures required strict regulations to put in place by the respondents to ensure that the petitioner’s rights to protection from sexual abuse. Children’s Act, 2001 The Children’s Act is an Act of Parliament geared towards safeguarding the rights and welfare of the child’s survival and its best interests and this is inclusive of sexual and reproductive health rights. It provides for the right to health and medical care of the child and inclusive of the sexual and reproductive health and further outlaws discrimination of whatever kind.
It further protects a child from abuse, which includes but is not limited to sexual exploitation and harmful cultural practices such as female circumcision. Penalties for a breach to protect these rights of the child in the Act are mandatory and therefore the government and parents are to protect these child’s SRH rights. In the above-mentioned case of W.J. and another v.
Astarikoh Henry Amkoah and Nine Others, the Court also observed that the Children Act 2001guarantees the right not to be subjected to any form of sexual and physical violence, the right to education, non-discrimination and the right to dignity. The Convention on the Rights of the Child (CRC) domesticated by the Children’s Act of Kenya and the quoted case above requires takes into account the provisions of Article 19 of the CRC. The state parties, therefore, ought to protect the child from all forms of abuse including sexual abuse and to support them in cases where violations have occurred. The Prohibition of Female Genital Mutilation Act, 2011 The enactment of the Prohibition of Female Genital Mutilation Act prohibited the practice of female genital mutilation (FGM), safeguarded against violation of a person’s mental or physical integrity through the practice of female genital mutilation, and for all connected purposes was a positive step by the Kenyan Government towards enhancing the sexual reproductive health rights.
This enactment is one of Kenya’s most important legal frameworks on the deeply and widely entrenched and practised traditions affecting women’s sexual reproductive health rights. It establishes the Anti-Female Genital Mutilation Board with functions such as designing, supervising, and coordinating public awareness programs against female genital mutilation, advising the Government on FGM matters, designing programs to eradicate FGM among others. This is very important because FGM results in too much harm such as causing physical pain, mental illness and psychological harm, death during pregnancy, haemorrhages, sexual dysfunction among others. 3.3 KENYA POLICY FRAMEWORK The following are the main SRHR policy framework in Kenya and discussed briefly as hereunder:- The Kenya Adolescent Reproductive Health and Development Policy of 2003 It was the first policy in Kenya to focus on improving reproductive health, well-being and quality of life of Kenya’s adolescents and youth as prior to it no policy document at the national level explicitly addressed adolescent sexual and reproductive health (ASRH). Its objectives also include promoting and protecting the adolescent’s reproductive rights as well as promote participation of adolescents in reproductive health and development programs.
The policy’s target was to double the contraceptive use rate among adolescents from 4% in 1998 to 8% in 2015 and for the youths from 19.9% to 40%and to increase the proportion of facilities offering youth-friendly services from baseline to 85% by 2015. Increase the proportion of mothers below age 25 delivering in health facilities from baseline to 60% by 2015. To raise the median age at first intercourse from 16.7 for girls and 16.8 for boys to 18 for both boys and girls by 2015, to reduce maternal mortality ratio by 50% in the 15-24 age group by 2015 and to achieve gender equity in education by 2015. Kenya’s ASRH Policy has led to many perceived improvements in the health and well-being of adolescents and youth.
The ASRH Policy has provided guidance for priority ASRH needs and target populations, and for a range of approaches to increase access to and quality of ARHD programs and services. The policy has also helped lay the groundwork for many new guidelines, policies, and strategies. All of this has contributed to more commitment to and funding for adolescent sexual and reproductive health (ASRH); strengthened partnerships between the government and nongovernmental organizations (NGOs) and civil society organizations (CSOs); improved knowledge of and attitudes toward ASRH; and improved empowerment of youth. The Kenya Vision 2030 A development policy that aims to transform the economy and life of Kenyans through the provision of high-quality life with respect to the economic, political, and social pillar.
This pillar plays a vital role and given various functions such as the political pillar is to ensure that a democratic political system is established and it should be on issue-based politics that are premised on protecting the Kenyans rights and freedoms as well as ensuring on respect of the rule of law. The social pillar of vision 2030 aims at building a society that is just and cohesive with social equity. This goes in hand with the economic pillar that focuses on improving the prosperity of the country through economic development programs. In the health sector, its purpose is to improve the overall livelihoods of Kenyans through the providence of high quality and efficient health care services and systems.
Its achievement is through devolution of funds as well as health care management at the grassroots by the communities as well as the district medical officers in addition to shifting the bias of the national health bill from curative to preventive care. It emphasizes on special strategies provided with respect to the improving the overall health service delivery to up notch standards and encouraging the public-private sector partnership. The Kenya Health Policy 2012- 2030 It is a policy designed to give directions to ensure significant improvement in health in Kenya with the country long-term plan of vision 2030. The policy demonstrates the health sector commitment to ensure that Kenya health standards meet the population’s needs.
The objectives are to strategize on essential healthcare services and provisions availability, to exposure factors that are likely to pose health risks for minimizing them and channelling in collaborating them with various health-related sectors by strengthening them. The main policy goal of achieving better health of Kenyans (this includes sexual reproductive health) that is of the highest possible standard in a responsive manner that meets the needs of the population. The policy seeks to adopt and use the human rights-based approach in the healthcare delivery to contribute positively to the attainment of vision 2030. Its guiding principles include ensuring equity in the distribution of health services and interventions, having a people-centred approach to health and health interventions, participatory approach to the delivery of interventions, multi-sectoral approach to realizing health goals, social accountability, and efficiency in the applicability of the health technologies.
Kenya National Reproductive Health Strategy 2009- 2015 The National Reproductive Health Strategy 2009-2015 is a policy that revised the National Reproductive Health Strategy 1997-2010. The goal of the strategy is to facilitate the operations of the National Reproductive Health Policy (NRHP) through enhancing the reproductive status of all Kenyans by increasing equitable access to reproductive health services, improving quality, efficiency, and effectiveness of service delivery at all levels, and improving responsiveness to client needs. The policy strategies include the following:- a. To develop and support a sustainable financial mechanism for reproductive health services b. To avail and improve human resources and infrastructure, strengthen logistics management systems, monitor, and evaluate systems of reproductive health. c. To increase the availability of research information for evidence-based decision making and program implement and increase utilization of information from research, monitor, increase access to reproductive health services through community strategy and evaluation system, routine health information system and health surveys. d. To improve the community engagement strategy in the promotion and delivery of family planning services, increased utilization of family planning services, integration of HIV and AIDS in reproductive health, reproductive health awareness creation among youth through youth-friendly services. The promotion of gender equity and equality in decision making in the matter of sexual and reproductive health and women empowerment to exercise decision making on their own reproductive health and rights are just but a few provisions of the policy that are important towards the realization of the highest standard of sexual reproductive health of women.
The Kenya National Reproductive Health Strategy 2009- 2015 was initiated as a National response by Kenya’s commitment to the achievement of the ICPD and MDG goals, as well as other international development goals and targets. Priority actions, through which the adverse reproductive health outcomes, including those related to the impacts of the HIV and AIDS pandemic, were to be reversed. Other policies relating to sexual and reproductive health include the National Condom Policy and Strategy of Kenya (2009-2014) which has empowered both men and women in the use of condoms currently and hence a significant reduction of unwanted pregnancies and sexually transmitted diseases among these youths. On the Contraceptive Commodities Security Strategy Policy of Kenya (2007-2012), more and more women now are embracing the use of contraceptive use to avoid unwanted pregnancies, the Female Genital Mutilation/Cutting Policy of Kenya etc. 3.4 JUSTICIABILITY OF SRHR IN KENYA The Constitution of Kenya, promulgated by the Kenyan people in August 2010, gave the courts a prominent role as the guardians of the Constitution and as the main body charged with the protection of the entrenched fundamental rights and freedoms. The role of the Judiciary as the repository and watchdog to the justiciability of SRHR in Kenya with powers to enforce and defend the Constitution was affirmed in the case of Republic v Independent Electoral and Boundaries Commission and further affirmed by the case of John Harun Mwau & 3 Others v Attorney General & 2 others.
The Court held that according Articles 22 and 23 of the Constitution persons should have free and unhindered access to the court for the enforcement of their fundamental rights and freedoms. Further, that Article 258 allows any person to institute proceedings claiming the Constitution has been violated or is threatened. The imposition of costs would constitute a deterrent and would have a chilling effect on the enforcement of the Bill of Rights. Litigations in Kenya despite the entrenched role of the courts in the constitution have remained majorly adversarial hence their contribution to the achievement of the intended transformative potential of the Constitution; litigants have to move the courts through filing of constitutional petitions in courts. According to J.Oloka-Onyango, courts in countries of the Global South, such as, India, South Africa and Brazil, reveal the possibilities for what can be described as judicially motivated social change intended for the elimination of poverty and social marginalisation. An instance of gender justice over the last year, a court in Columbia found that femicide was a crime, while others recognized the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals like in Botswana.
Courts may be slow, conflicted and uncertain, but there input will no doubt revolutionize advancement to promotion and protection of the rights of people. In order to achieve the needed change therefore the primary instrument from which the courts derives their power that is the constitution needs reformulation in order to provide for full recognition of human rights and also empower the courts to effect the necessary change that follows from such approval. The approval that is needed should embrace both civil and political rights (CPRs) as well as economic, social and cultural rights (ESCRs). This is necessary for the constitutional framework to establish the foundations upon which the courts can make interventions that are meaningful for the poor and the marginalised group including women in society. Once that is done, the courts themselves have to rise to the occasion. However, achieving transformation is no overnight accomplishment.
The Constitution of Kenya 2010 made it possible for everyone including cases of public interest litigation to institute an action in the High Court if his/her fundamental right is in violation of the Bill of Rights. The Constitution provides reliefs through the High Court of Kenya for the promotion and protection of the sexual reproductive health rights that includes a declaration of rights, an injunction, a conservatory order, a declaration of invalidity of any law that violates a right or fundamental freedom, an order for compensation and for judicial review. The Constitution further provide for the establishment of the Kenya Human Rights and Equality Commission to cater for the protection of any infringement of the Bill Rights including SRHR in the constitution. In order to ensure that SRHR is protected the Constitution of Kenya 2010 pursuant to Article 59(4) provided for the creation of the National Gender and Equality Commission, Commission on Administration of Justice and the Kenya Human Rights Commission respectively. Despite the creation of the three commissions and the availability of legislative, policy, and institutional frameworks for the protection of SRHR provided, Kenya has not done much in enhancing the promotion and protection of these rights by the judicial system is one of the main stakeholders towards this end.
Several medical practitioners and their patients have often faced criminal prosecutions in courts and have been found guilty and subsequently convicted of alleged offences while assisting their victims in procuring an abortion or while saving the lives of their patients in the process of procuring an abortion. This is because of various cases in Kenya that show a complete opposite picture as opposed to their expectations. The decisions by the courts in Kenya in matters of procuring such abortions have resulted in an overwhelming increase in the maternal mortality rates in Kenya due to the strict abortion laws leading to the patients, their doctors, and aides applying illegal backstreet abortions. Sexual reproductive health and rights are new areas of law that are under the umbrella of the right to health since they are all and intrinsically connected.
However, the developments of the sexual reproductive health are accepted and are in the process implemented hence the courts in Kenya are obliged to create suitable precedents for their development. The judiciary has, however, is facing serious challenges in promoting and protecting the rights of women in applying the SRHR as required by the legal and policy documents and in total violation of the International document for the protection and promotion of this rights. Some instances highlighted hereunder will show that justiciability of the SRHR in Kenya is far from being achieved. The case of R v Dr Nyamu and two others one of the leading cases in Kenya on sexual reproductive health right highlighted the plight of women who undergo abortion services while being assisted by his medical practitioners. The said Dr Nyamu and his two accomplices prosecuted for committing abortion, which should not have been the case since he was operating a medical clinic known as Reproductive Health Clinic and was lawfully rendering medical services in compliance with the ratified international documents, by Kenya. They faced prosecution jointly for a capital offence of procuring abortions and were in custody where they remained for a year pending the determination of their case.
The High Court sitting in Nairobi held that the evidence presented before it was not sufficient to convict the accused of murder or the offence of procuring abortions. The question was whether helping a woman to procure an abortion by supplying equipment or drugs used for the purposes of abortion and with the knowledge that the woman patient was going to use them to procure an abortion constitute an offence. In another case of Enid Kaari Nganga v R, the appellate court found the appellant guilty of aiding a young girl called Rahab and other girls who often came to her clinic to procure abortions by giving them drugs to induce abortion. The appellant was guilty and sentenced to three years imprisonment. She filed an appeal contending that the evidence adduced by the prosecution witnesses who apparently were minors lacked corroboration to convict her, as she did not aid in procuring the abortions.
The Court of Appeal quashed the conviction of the trial court and set it aside from the judgment since the evidence relied on by the trial court to convict the accused person now the appellant. Nyamu and Enid Kaari’s cases above exposed the State’s failure to provide abortion services for women in line with the ratified international, and regional documents towards the promotion and protection of sexual reproductive health rights. They further exposed the failure by the State to comply with the provisions of it Constitution Art.43 (a) in ensuring that the SRHR are allowed and fulfilled. The Penal Code led to the two practitioners’ convictions and their accomplices were contrary to the ratified SRHR documents and the constitution. The most recent unreported case and an impediment to the sexual reproductive health right are the one of M.N.N v.
Attorney General. The case filed in the High Court of Kenya at Nairobi on behalf of a woman whose genitals were severely mutilated without her consent and or knowledge. Mr H.K a clinical officer committed the inhuman act. He was rendering his services on behalf of the private hospital known as St.
Mary’s Hospital in Nairobi. H.K committed the act of mutilation on the woman patient rudely and abusively without even introducing himself to her. The hospital subjected to detention in the health facility for failure to pay the medical fees due to the Hospital against her wishes. The trial court found that her rights were infringed and t the State failed to fulfil its obligations to prevent and protect this woman patient against such violations by the likes of H.K and the Medical Centre in question. The State took neither action against H.K nor St. Mary’s Hospital even after she reported the matter to the Langata police station in Nairobi.
This case is of utmost importance in the sense that it resulted in exposing the State of its failure to protect and promote this woman’s rights against female genital mutilation, verbal abuse, physical abuse, and detention in the health-care facility for being unable to pay fees. In the case of Millicent Awuor Omuya alias Maimuna Awuor and Another vs The Attorney General and Four Others observed that detention of the petitioners by Pumwani Maternity Hospital (Pumwani Hospital) because of their inability to pay their medical bills was arbitrary, unlawful, and unconstitutional. The judge noted that nothing in the law mandated or authorized health institutions to detain patients or clients for non-payment of medical bills. Detaining the petitioners under poor conditions including making them sleep on the floor, and with poor sanitary conditions amounted to cruel, inhuman and degrading treatment. The court explained that the Constitution of Kenya 2010 guarantees the right to health, including reproductive health care, under Article 43, and also the right to non-discrimination and equality before the law under its Article 27.
This case helped to expose the state to the fact that it is obligated to take appropriate measures to achieve all these progressive realizations of the rights guaranteed in the constitution. This case is very important as it addresses the rights that are violated when health systems deny maternal health care services to women or treat them badly because they do not have the means or resources to pay for the services. One of the greatest barriers to sexual and reproductive health care, therefore, is the attitudes of healthcare workers, coupled with healthcare systems that simply do not care about those who cannot afford their services. In the case of Patricia Asero Ochieng and Two Others v.
The Attorney General & Another the Court expressed the view that the obligations of the state under the right to health encompass both a positive duty to ensure access to health service and a negative duty not to do anything that would interfere with access to health care services and medicines. Therefore, any legislation that would imply inaccessibility to essential medicines would violate the right to health. In CM (Kenya) v Secretary of State for the Home Department, the appellant Kenyan citizen aged 16 years fled from Meru her hometown to Nairobi the capital city and afterwards fled Kenya and sought asylum in the United Kingdom for fear of her life and undergoing FGM as her family had decided that she should undergo the cut. This particular case depicts the status in Kenya in relation to the protection of an individual’s SRH rights and as such, sought asylum in the United Kingdom.
The Court allowed the young woman a refugee status on the ground that it would be unreasonable and unduly unruly to allow her to return to Nairobi to undergo FGM that was against her sexual reproductive health rights. In the case of FK (FGM – Risk and Relocation) Kenya v Secretary of State for the Home Department, the appellant a lady who is a Kenyan citizen arrived in the United Kingdom with her daughter, seeking asylum having run away from Kenya. The grounds for seeking the asylum were on fear of death, persecution and forceful FGM by the Mungiki sect but the application seeking for her asylum faced rejection for lack of real genuine risks on the applicant in the event that she returned to Kenya. The court observed that there were internal mechanisms of protecting women who faced the dangers of FGM from their tribes or organized criminal groups like the Mungiki and that evidence adduced on behalf of the applicant was insufficient. The FK and CM cases above demonstrate the understanding that the State is under obligation to protect the women’s SRH and that all the other rights that come with it.
The Kenya government’s failure to do so meant that victims had to seek protection elsewhere as it happened to the applicants who sought refuge in the United Kingdom to avoid undergoing FGM. A situation arose in the case of VM (FGM – Risks – Mungiki – Kikuyu/Gikuyu) Kenya v. Secretary of State for the Home Department. This was a case where a Kenyan woman had sought an asylum with her daughter on grounds of fear of facing FGM by her boyfriend accompanied by other Mungiki sect members.
The sect members had subjected her to rape, subsequently impregnated her, and as a result, bore her daughter with whom she sought asylum after realizing the dangers she faced from the Mungiki Sect. This suffering upon her and her daughter became absolute by the disappearance and subsequent death of her sister and mother with whom she was residing. The woman allowed the refugee status after an observation by the Asylum and Immigration Tribunal Appellate Authority in the United Kingdom (UK) that her relocation to Nairobi would be detrimental to her due to the insufficient protection for her anywhere in Kenya bearing in mind that the reason for her escape was to avoid FGM. In the most recent case of Republic v Jackson Namunya Tali, a medical doctor facing charges of murder contrary to section 203 read together with section 204 of the Penal Code of Kenya for the death of a woman patient whom he was assisting in procuring an abortion in contravention of the New Constitution of Kenya 2010. The learned judge of the High Court of Kenya Justice Ombija sitting in Nairobi, found him guilty of the offence as charged and subsequently convicted and sentenced him to death.
The court’s decision raised and steered a lot of tension to many medical practitioners and the public on the reproductive health issues as it did not only expose the women who undergo an abortion to trouble but also exposed them to major risks of committing illegal backstreet abortions for fear of being criminally prosecuted. The abortion laws in Kenya are restrictive and only allow limited circumstances when a person is seeking for it as provided under Article 26(4) of the Constitution of Kenya 2010. This, however, creates difficulties as the women seeking for this right is limited and cannot be allowed to abort in circumstances do not allow her to have the child as a choice at the time. In this regard, the issue of abortion in Kenya is still blurry and obscurely unclear. The court’s decisions and the restrictive anti-abortion laws in Kenya have led to several unsafe clandestine abortions by the women that have led to high levels of maternal deaths.
The government should be held responsible for the failures arising from the foregoing shreds of evidence to implement the promotion and protection of the SRHR as per the regional and international legal documents ratified by Kenya It is on this premise, therefore, that the state is under obligation to observe, promote, and protect sexual reproductive health rights for all the women in Kenya. These obligations are negative in nature since they refrain from and, or commit the acts that can or cannot interfere with the women’s sexual reproductive health rights and positive in preventing, punishing, and providing for redress to the sexual reproductive health rights violations. No legislation on SRHR by Kenya is in place despite ratifying the international and regional documents. The far we have gone towards trying to achieve it is through the introduction of the Kenya Reproductive Health Bill 2014 that is still pending passing by parliament.
SRH being socio and economic right are the rights progressively realized by the State and as such, it is under its obligation to promote and fulfil it. Despite this requirement, no pertinent yardstick exists to ensure and measure the progressive realization of these right which then raises eyebrows and leaves many questions unanswered as human rights violations on SRHs still exist. The courts in Kenya have negatively contributed to promoting, protecting, and enhancing the rights of the vulnerable women despite the existing international and regional legislation and policies. The Penal Code, The Children’s Act, The Sexual Offences Act, Female Genital Mutilation Act etc. be in line with the provisions of Art.43 (1) and (2) of the Kenya Constitution 2010. There are numerous cases of unsafe abortions reported concerning women who denied safe legal abortion services by medical facilities.
In some cases, women face detention in maternity hospitals due to inability to pay their medical fees in those medical health facilities. This happens regardless of the existence of laws and the state obligation in promoting and providing accessible health services. The failure of this obligation is a serious fundamental breach of duty by the State to women. This, therefore, denotes an egregious violation of the women’s fundamental rights while seeking medical care in the private and government facilities. The State has therefore failed to promote, protect, respect, and deliver these rights to women and instead allowed them to be verbally and physically abused and mistreated at the medical facilities by their medical personnel hands.
The State further has not done enough to stop FGM from practices even after outlawing it in 2011. The Anti-FGM Unit headed by the Director of Public Prosecution (DPP) is facing challenges in apprehending the perpetrators of this practices due to lack of trained personnel’s and proper infrastructure. The road networks and the complex nature of the offences committed make it very hard to collect evidence from witnesses. Most of these issues are regarded by cultural norms as immoral matters not talked in public and as such very few perpetrators are penalized since the majority of them go unpunished hence encouraging the clandestine practices to continue unabated. 3.5 Conclusion In conclusion, despite the existing policy, institutional and legislative frameworks for sexual reproductive health rights in Kenya, the State has not fully implemented the promotion and protection of the sexual reproductive health rights of women. Several women are still exercising the right under clandestine manner instead of approaching health facilities for sexual health services. The Courts have also failed their obligation to promote and protect women seeking to exercise their SRHR and has instead punished the health provider against the law and their constitutional rights. CHAPTER 4 SEXUAL REPRODUCTIVE HEALTH RIGHTS IN OTHER JURISDICTIONS AND LESSONS FOR KENYA 4.1 Introduction This chapter focuses on the promotion and protection of sexual reproductive health rights in other jurisdictions and the lessons that Kenya will learn from their achievements. This chapter, therefore, takes into account African countries like Cameroon, and particularly South Africa on SRHR. South Africa being the most successful country in Africa in the promotion and protection of SRHR, its successes in the advancement of SRHR will be the case study in the research herein and then analyse what lessons Kenya will embrace in promoting and protecting the SRHR for its women. Other jurisdictions outside Africa have more structured and subjective rights in their National legislation for their SRHR for their women and in promotion and protection of their Economic, Social and Cultural rights and one such example are the Scandinavian countries particularly Finland which is the best example on this rights promotion and protection. In the United States, the State has a broad social obligation to protect the citizens against social economic deprivation with respect to statutory welfare entitlements at the federal level does not exist, or dissipates, statutory entitlements that are not sourced in substantive constitutional guarantees are vulnerable to legislative interference. 4.2 Sexual Reproductive Health Rights in Cameroon Like most Africa countries, Cameroon has no legal framework in place to address the SRHR except its reliance on the provisions of the Penal Code that deals with domestic violence. The Constitution of Cameroon in its preamble guarantees the right to the dignity of a person. This provision envisages a situation that offers protection to women facing violence and therefore accords them the right to respect and free from discriminative attitudes of their male counterparts that are so widespread in Cameroon. The discrimination is not prohibited by law thereby is against the ICECR convention against domestic violence. This practice is encouraged by courts that uphold the idea that a man has “disciplinary rights” over his wife on her refusal to have sexual relations with the husband despite his alcoholism. The government of Cameroon is a signatory to the CEDAW obliged itself to address the SRHR and allow women to adopt assertive decisions as to their choices regarding their SRHR in line with the Vienna Convention. Cameroon has one of the worst aspects of SRHR challenges in Africa south of Sahara Gender equality and women’s empowerment are important determinants for improving reproductive health. Just as it is in Kenya, many parts of Cameroonian society, the impact of culture and religion on gender equality is profound. Women are secondary to men there, a social aspect that controls women’s everyday lives, work opportunities, education, health, and even basic human rights. Abortion in Cameroon is illegal except on grounds provided for under the Penal Code when the life of the pregnant mother is at risk and on situations where the pregnancy of the women is due to rape. In these circumstances, the victim will have to seek for a court order authorising its termination. Due to these restrictive abortion laws, many clandestine abortions take place through the health professionals, traditional doctors and laypersons in backstreet places for fear of arrests on them. Ignorance and high levels of illiteracy in Cameroon have led to a serious lack of awareness for women on issues of SRHR. Lack of awareness of condom use is the worst scenario thereby exposing them to HIV and AIDS. The government has tried to coordinate the fight against the vice through its National programme but it is yet to succeed through its national committees and subcommittees. Rights to life, dignity and equality as is guaranteed in the preamble of the constitution of Cameroon, are often in violation by the state and its failure to address the challenges have led to increased abortions in the country. This happens because the state has not clearly expounded fully on the right to equality and has led to women being disadvantaged and further, more let down by courts in failing to offer a substantive interpretation of the SRHR laws based on sex between partners. The Government also lacks the political will to address the problem of discrimination and domestic violence, as it looks upon as an aspect of culture that is so deeply entrenched in the Cameroonian public. This is in total breach of obligations under the international law on SRHR documents that the State is bound to domesticate being a member of many of those documents 4.3 Sexual Reproductive Health Rights in South Africa The Republic of South Africa has progressively advanced on matters of promoting and protecting sexual and reproductive health rights for their women. It is among the few countries in Africa that have allowed the legal protection of SRHR. To be able to understand how South Africa has been successful, a study on its legal and policy framework will consider the following legislation i.e. The Constitution, the National Health Act, Domestic Violence Act, and the Choice on Termination of Pregnancy (CTOP) Act, the Promotion of Equality and Prevention of Unfair Discrimination Act. A brief analysis of this legislative documents and their contribution to the promotion and protection SRHR is undertaken as hereunder:- The Constitution Sexual reproductive health right is enshrined in the Constitution of South Africa. The right is not only respected and protected but is also and promoted by the state. The constitutional underpinning arose after the researches and surveys conducted and identified that women suffered greater risks to their SRHR than men in the society. It addressed the issues on sexual and reproductive health rights in a myriad of ways though it is yet to realize it fully. It encourages the development of the right to sexual reproductive health of women through the participation of various stakeholders and actors in the implementation and monitoring of socio-economic rights irrespective of their progressive realization in nature. The Constitution of the Republic of South Africa is a comprehensive legal document, which enshrines the rights of all the people in the country and affirms the values of human dignity, equality, and freedoms by obligating the Government with the legal duty of respecting, protecting, and promoting these rights for the people of South Africa. The South African Constitution is the supreme law of the land and it includes civil and political as well as socio-economic rights in its provisions. It provides for equality before the law, the right to have access to health care services that include reproductive health care services, food, water and social services as well as the provision of the right to human dignity. The Constitution provides for the freedom and security of individuals and is a very important as it includes everyone having the right to bodily and psychological integrity, the right to make personal decisions that concern one’s reproduction, security, and control over one’s body and the right against being a subject of medical or scientific experiments without an individual’s informed consent. The SRHR rights work together with equality as enshrined in the constitution, which guarantees that no one is to discriminate unfairly any person on grounds such as gender, sex, sexual orientation, pregnancy, or marital status. On sexual and reproductive health, the constitution provides that the people of South Africa have a legitimate right to access information. It establishes the Commission for gender equality with a sole mandate of promoting the respect of equality and the protection, development, and attainment of gender equality. The right to sexual reproductive health requires the state to take reasonable legislative, administrative and any other measures within its available resources to realize them progressively. This is because the State has a constitutional duty to comply with the obligations imposed on it by Constitution. The National Health Act It is a piece of legislation that provides for health and used in the regulation of the health sector. It aims for the provision of a health system that is uniform within the Republic of South Africa and that which takes into account the obligations imposed by the Constitution and other laws on the national, provincial and local governments with regard to health services and for the provision for matters connected therewith. This is also in relation to sexual and reproductive health that is inclusive and part of the right to health. It does obligate the state to take reasonable legislative steps and other measures within its available resources to achieve the progressive realization of the rights for the people of South Africa to have access to health care services including emergency medical treatment. The Act particularly recognizes specifically that the rights of vulnerable groups which includes women should be protected, respected, promoted and be fulfilled. The State has empowered the Municipalities in South Africa with responsibilities of ensuring that appropriate Municipal Health Services are effective and equitably provided for. The municipalities allowed in the event that the public health establishment is incapable of providing the necessary treatment of care, to allow compulsory and mandatory transfer of the user to a health facility that is in a position of providing the necessary treatment. This is essential and vital to women especially with regard to matters pertaining to their sexual and reproductive health. The Domestic Violence Act It is an Act of parliament, which affords victims of domestic violence protection from abuse, and it introduces measures to eliminate domestic violence. Women are the most affected by domestic violence and as such need to protection from it. The legislation includes provisions prohibiting sexual violence as part of domestic violence and it provides that every individual (inclusive of women) needs protection from such acts. Engaging in any act of domestic violence is a criminal offence, dealt with in accordance with the criminal procedure, and any person complaining about domestic violence should require assistance and get information about his rights. The Choice on Termination of Pregnancy (CTOP) Act The Choice on Termination of Pregnancy Act repealed the restrictive and inappropriate provisions of the Abortion and Sterilization Act. It was it promote reproductive rights and also to extend and afford freedom of choice to the women as enshrined in the Constitution the right to choose whether they want to have an early, safe, and legal termination of pregnancy according to their beliefs. The Act also provides for circumstances under which pregnancy undergoes termination and is by a medical practitioner or registered midwife with the consent of the pregnant woman who has information concerning the termination and pregnancy. Surgical termination performance in facilities designated by the Minister of Health and there exists counselling before and after the termination. Offences and penalties against the piece of legislation stipulated to promote, protect, and respect the right to sexual reproductive health in relation to the termination of pregnancy. The Promotion of Equality and Prevention of Unfair Discrimination Act It is a provision of which prohibits unfair discrimination and to promotes achievement of equality. Its objectives are to ensure the equal enjoyment of all rights and freedoms of all persons and promote equality by preventing unfair discrimination and prohibiting the advocacy of hatred based on factors such as race, gender, religion or ethnicity. This legislation enhances the attainment of the right to sexual reproductive health for the women in South Africa. The Act provides for the prohibition of unfair discrimination on grounds of gender and gender-based violence, female genital mutilation, discrimination on the ground of pregnancy. It checks the limitations to women accessing social services and benefits, such as health, education and social security, denial of access to opportunities, system inequality of access to opportunities because of the sexual division of labour. It prohibits any policy or conducts unfairly limiting women’s access to land rights, finances and other resources and any practice that undermines equality between women and men. The Equality courts hear and determine matters pertaining to Prevention of Unfair Discrimination. This was the court’s observation in the case of the Head of Department ( H.O.D), Department of Education, Free State Province v. Welkom High School & another; Head of Department, Department of Education, Free State Province v. Harmony High School & another where the court held that the HOD had no power to formulate policies for a particular school. He, therefore, cannot instruct school principals not to follow school policies, even if the policies were unconstitutional. The court observed that pregnancy policies prima facie violated constitutional principles. However, it would not make a declaration on the constitutionality of the pregnancy principles since it was not properly before the Court, and because the Court respected the scheme of powers under the School Act. This case encourages States to change the attitude of duty-bearers and align policies with fundamental rights and freedoms. What we do to support pregnant learners and those learners who have given birth to complete their education is a question that straddles gender equality, sexual, reproductive, and other human rights. Governments should take both immediate and progressive steps to eliminate the pattern of bias and discrimination that has operated against pregnant learners and young mothers and support them, as a matter of right, to achieve their fullest potential in school as was decided in this case. 4. 3 POLICIES AND STRATEGIES ON SRHR The National Adolescent Sexual and Reproductive Health Rights (ASRHR) Framework Strategy (2014-2019) is a strategy document adopted by the government of South Africa to distinctively and purposely for the underserved group needs. Its goal is towards addressing the gaps and numerous challenges with which they face in pursuit and fulfilment of their SRH rights. The ASRHR framework strategy uses a multi-stakeholder, multi-sectoral approach and a human rights approach to address the gaps within ASRHR by aligning itself with the Constitution and guiding principles from various international treaties and conventions. It promotes the quality of life and offers the right to choose whether and when to have children. It also promotes the right of a woman or a man to exercise the sexuality free of violence and coercion; the right of women and men to seek the pleasure of their own but at the same time ensuring the respect for other people’s rights; the right to protect fertility. It promotes the right to access modern techniques for prevention, diagnosis, and treatment of sexually transmitted infections. These mandates are very important and to achieve them, it provides explorations of various methodologies so that comprehensive sexuality education can reach the adolescent and youth both at the local, community, and national level. The ASRHR Framework Strategy comprises of five priorities in achieving SRH and rights of adolescents. They include – ” a. Increasing coordination, collaboration, information and knowledge sharing on ASRHR activities amongst stakeholders; b. Developing innovative approaches to comprehensive SRHR information, education, and counselling for adolescents; c. Strengthening ASRHR service delivery and support for various health concerns; d. Creating effective community support networks for adolescents and women e. Formulating evidence-based revisions of legislation, policies, strategies, and guidelines on ASRHR.” National Contraception and Fertility Planning Policy and Services Delivery Guidelines (2012) and National Contraception Clinical Guidelines It is a document reprioritizing contraception and fertility planning in South Africa with emphasis on dual protection. The need for the policy was to necessitate by the presence of prevalent changes in the technologies of contraceptives as well as its very high turnover rate. The National Contraception and Fertility Planning Policy Guideline and the National Contraception Clinical Guidelines recognized the position that providence of contraception to women and enabling them to make choices about their fertility is a basic component in ensuring the realization of their right to sexual reproductive health. The policy Guidelines are based upon: a. Ensuring that the alignment of policy guidelines with recent international trends is evidence related to contraception technologies and research. b. Ensuring that the policy guidelines are aligned with national priorities c. To develop a definition of family planning that is broader and incorporating fertility management that is all inclusive of pregnancy prevention and planning conception. d. Promoting contraception choices and methods in S. Africa e. To promote the integration of quality contraceptive services with other health services as well as advocating for the strengthening of more special services and referral clinics. National Condom Policy and Management Guidelines (2011) The policy has an objective of promoting condom use to reduce the sexual transmission of HIV and STIs and to extend the distribution of both male and female condoms to all public places. The policy aims to align itself with other policies and legislation. Its main objective is to promote condom use to reduce sexual transmission of HIV and STIs. It contains strategies that implemented and used to remove logistical and socio-cultural barriers that restrict condom access and use. It also enhances awareness to be promotion through national mass media by both government and non-governmental organizations. SRHR Strategy: Fulfilling our Commitments: 2011-2021 and Beyond This is a report founded with an aim of defining comprehensive sexual and reproductive health and rights as to include all the aspects that are present in providing a culture of sexual and reproductive rights as well as all the factors and aspects involved in the promotion, prevention, diagnosis, treatment, care, and management in relation to sexual and reproductive health. The policy states the essential sexual reproductive health services that the government has committed to provide as well as the government’s commitments to fulfil sexual reproductive health rights Strategic Plan for Maternal, New Born Children and Women’s Health (MNCWH) and Nutrition in South Africa 2012-2016 It is a policy document where the government has the main goal of reducing the Maternal Mortality Ratio (MMR), Neonatal Mortality Rate (NMR), Infant Mortality Rate (IMR), and Child Mortality Rate (CMR) by 10% by the year 2016. This through its vision of having accessible, caring, high-quality health and nutrition for women, mothers, newborns, and children is intended to achieve through mobilizing the necessary financial and human resources a reduction on the maternal, neonatal, infant and child mortality rates. Concerning Women’s Health Initiative, the policy gives priority and provides for an increase in the access to contraceptive services including but not limited to pregnancy confirmation and emergency contraception, improved coverage of cervical screening and follow-up mechanisms, post-rape care, youth-friendly counselling and reproductive health services at health facilities and through health services. Its key strategies for implementation include and are not limited to addressing inequity and social determinants of health, strengthening the capacity of the health system and human resource capacity to deliver Maternal, Newborn, Child, and Women’s Health (MNCWH). It advocates for community-based health care, where MNCWH services in full integration with PHC and HIV services. It also promises to tackle the social determinants of health by targeting under-resourced districts. The policy incorporates with it, the strategy of the Campaign for Accelerated Reduction of Maternal Mortality in Africa (CARMMA), an African Union Commission and UNFPA initiative to reduce maternal mortality in the Africa region. CARMMA aims to intensify and accelerate the reduction of maternal and child morbidity and mortality through the implementation of evidence-based interventions necessary to improve maternal health and child survival. CARMMA promotes the enhancement of comprehensive sexual and reproductive health rights services and focusing mostly on family planning. 4.4 JUDICIAL PROTECTION OF SRHR IN SOUTH AFRICA South African courts have strengthened the protection of SRH and this is through the implementation of the various domestic legislations aforementioned as well as drawing sustenance from international human rights instruments and jurisprudence i.e. the United Nations (UN) instruments like the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR) etc. The highlight of some landmark notable cases decided by the courts in South Africa on the SRHR will help in this study to assess their role and impact in protecting, promoting, and implementing this right in South Africa. The Constitutional Court in the case of Alix Jean Carmichele v The Minister for Safety and Security and the Minister of Justice and Constitutional Development stated that it is the obligation of the State to ensure that Women are protected and accorded dignity, freedom, and security whenever they are faced with discrimination and gender-based violence. The courts are also under a duty to apply the provisions of the constitution and international law to ensure that their rights are protected, promoted and fulfilled against the state in case of failure to promote, implement, and fulfil them as required. It can be noted from this that the recommendation by the police for the assailant’s release from prosecution amounted to the wrongful conduct of omission on the part of the State in fulfilment of the applicants’rights to security, life and dignity thereby giving rise to liability for the consequences. The Constitutional Court held further that the prosecutors are under a general duty to place before the court any information relevant for the refusal or grant of bail and any failure in compliance may reasonably be held liable for negligently failing to fulfil that duty. In Soobramoney v Minister of Health (Kwazulu – Natal) the concept of progressive realization was interpreted and the court held inter alia that the obligations imposed on the state by the Constitution in regard to access to housing, healthcare, food, water, and social security (these rights are socio-economic rights) are all dependent on the availability of resources for such purposes. The sitting church further ruled that corresponding rights are limited due to the lack of resources. The lack of resources and the significant demands on them due to their unqualified obligations to meet their current needs would not be capable of fulfilment. This is the context in which section 27(3) of the Constitution of South Africa is relied and which the court in S v Makwanyane and another relied on making its decision. It stated that in matters relating to fulfilling the rights, a purposive approach applies to ensure that the full protection of the Bill of Rights and in particular the protection of SRH rights is in progressively fulfilment regardless of the scarcity of resources in the Country. In the case of the Government of the Republic of South Africa and Others v Grootboom and Others, the court identified the issue on reasonability on the part of the State in ensuring the realization of the people rights. The State is to show that the measures it has adopted upon the bill of rights are reasonable, given their positive duties under the Constitution to realize access to socio-economic rights that includes the sexual reproductive health rights. The reasonableness of the measures adopted by the State should be in consideration of their social, economic and historical context. The State must establish comprehensive and coherent programs capable of facilitating the realization of the right and this relates mutatis mutandis to Sexual Reproductive Health. In the Minister of Health and Others v Treatment Action Campaign and Others, the government of South Africa was taken to court for not making reasonably available anti-retroviral drug called nevirapine in the public health sector. The drug was for reducing the risk of mother to child transmission of HIV in hospitals and clinics. The Constitutional court held that the State had the obligation to devise and implement its available resources so that it progressively realizes the rights of the pregnant women and their newborn children and be able to access services to combat mother to child transmissions of HIV. The progressive realization must include reasonable measures for counselling and voluntary testing of HIV for pregnant women and for those found positive for HIV be sensitized on available open options to reduce the risk of mother-to-child transmission of HIV, and making appropriate treatment available to them for such purposes. In context of the Treatment Action Campaign and Others case above, the South African courts are steadfast in ensuring that women’s sexual and reproductive health rights are upheld, protected and respected in accordance with the provisions provided for by the legislative and policy frameworks put in place and which are protected and promoted by the judiciary in respect to SRHRs. This was a further observation in the case of Christian Lawyers Association of South Africa v Minister of Health where the applicants asked the court to declare the CTOP Act unconstitutional in 1998 whereupon the Pretoria High Court rejected their assertions by ruling that the foetus had a right to life under section 11 of the Constitution. In 2001 again, the Christian Lawyers Association launched another action against CTOP Act where they again argued in favour of an amendment imposing a number of restrictions on a minor’s choice of having an abortion that included a requirement that the minor had to obtain the consent of a parent to be allowed to have an abortion. The case was unconstitutional and since the SRHR of the minor would be infringed. In the case of Ntsele v. MEC for Health, Gauteng Provincial Government the defendant was held liable for the brain damage suffered by the plaintiff, and therefore for infringement of the plaintiff’s right to the highest attainable standard of health protected under Section 27 of South Africa’s Constitution. The mother maintained that the defendant’s employees failed to execute their statutory duty to provide reproductive health care to her and her child with reasonable skill and diligence, because of which her child sustained brain damage due to the deprivation of oxygen during the process of birth. From the foregoing cases, South Africa also faced many cultural and social challenges that encouraged high teenage pregnancy rates, vaginal testing, and vaginal drying, rape etc., all that increased the women’s vulnerability hence hindering and interfering with their sexual reproductive health. Some of these cultural practices put the women to physical, sexual, and psychological harm as well as exposes them to increased risks of HIV. All this are contrary to the rights to their dignity that ought to be protected and respected. Despite all these drawbacks to SRHR encountered by women, South Africa has managed to reduce cases of maternal deaths and morbidity emanating from cultural issues due to its progressive realization of the social, economic, and cultural rights provided for in the constitution South Africa despite having numerous legislations, policies, and strategies geared towards the realization of sexual reproductive health, and the interpretation of the laws by the courts, it has ensured that programs and plans are community-based. There are linked policies on implementation of SRHRs and ICT in rural and peri-urban spaces of South Africa, There is also increased access to integrated SRHR services for key populations, increased male involvement in the key SRH related issues, increased advocacy and support for a range of multiple prevention technologies to strengthen integration and convergence between SRH commodities and HIV. 4.5 LESSONS KENYA CAN LEARN FROM SOUTH AFRICA ON SRHR SUCCESS Kenya can learn and borrow a lot with respect to promoting, protecting, and fulfilling the SRHR to its women from the Republic of South Africa. It will ensure that the women’s sexual reproductive health rights are not denied and have to make sure that these rights are protected, respected and promoted as evidenced by the practice already successfully operating in the Republic of South Africa. Kenya should provide for the right to reproductive choice just as South Africa and as such confer upon the women in Kenya, the right to make decisions concerning reproduction (bodies, sexuality, and childbearing). In doing so, it has to ensure that the Kenya Reproductive Bill of 2014 introduced to parliament for discussion and enactment is passed and in operation. The Bill is a comprehensive document that will introduce structural and institutional changes in Kenya. It will ensure that women SRHR are fully catered, promoted and protected and the women are guaranteed their free choices as to when, how and where to conceive and bear children. It will guarantee confidentiality and guarantee information and complaint procedures to actualize their rights including also their Vitro-fertilization. The enactment of the Bill will be under scrutiny by an independent oversight body that will work in consultation with other relevant stakeholders to ensure that SRHR is available. It will also regulate the National, County, and private institutions in provisions of these rights. Kenya will achieve these rights by ensuring that it has amended its abortion laws. In doing so it will go a long way in delimiting and reducing the increased high morbidity and mortality rates experienced by its women due to illegal abortions and its related complications which will ultimately enhance reproductive justice. 4.5 Conclusion South Africa is the most progressive and comprehensive proponent in Africa in human rights recognition. Sexual reproductive health and rights as observed in this chapter are under promotion, safeguard, and protection by the Constitution of the Republic of South Africa. They are also well as stated legislations, policies, and guidelines hence depicting the country’s commitments to women’s sexual and reproductive health. The government is mandated to ensure that the realization of the women’s sexual reproductive health rights is protected and promoted through various ways such as by collaborating with other stakeholders at large to enhance its’ realization to the women of South Africa. CHAPTER FIVE FINDINGS AND RECOMMENDATIONS 5.0 Introduction This chapter is the findings and recommendation section of the dissertation and the theme that has run through this study, therefore, is the need to embrace in totality the sexual reproductive health rights as was intended by Article 43 (1) (a) of the new Constitution of Kenya 2010. Due to this reality in embracing the promotion and implementation of the SRHR, much remains to be done to actualize these rights for women in Kenya as was successfully done and implemented in South Africa. The following findings and recommendations will, therefore, be necessary in order to ensure that sexual reproductive health also becomes a reality and a success story in Kenya. 5.1 FINDINGS From the foregoing chapters, it can be noted that SRHR has a great impact on women sexuality since this is one of the rights recognized in the Constitution of Kenya 2010 under Art.43(1) (a) which is in line with the International Covenant on Economic, Social and Cultural Right. This right, however, though provided for in the Constitution of 2010 in Kenya, the State has not shown any sufficient desire to have it implemented because the rights still remain restricted under the statutes eg. Penal Code Cap 63 Laws of Kenya. The courts which ought to be the custodians of justice in Kenya too have not done much to protect and promote the SRHR as compared with South Africa whose Courts have done quite well in promoting and advancing the SRHR. The maternal mortality and morbidity rates for women in Kenya have remained high due to the illegal clandestine procurement of abortions in the backstreet whose services are rendered to them by quarks because of fear of arrest and prosecution by police. This illegal abortion is due to failure by the state to guarantee the women the highest attainable standard of health as guaranteed by Article 43 (1) (a) of Kenya constitution 2010. The ratified human rights documents by Kenya on SRHR places obligations upon itself as the government a duty to protect and provide medical health care services to those who are affected by sexual reproductive health issues. Several other impediments are that women are discriminated against in Kenya by their male spouses due to their cultural beliefs and practises which are associated with taboos among most of the tribes which look down upon women as inferior human beings. Besides the cultural taboos and discrimination by male spouses, women also lack financial independence as they rely entirely on their male spouses for assistance and as result, timeous medical attention is sometimes compromised when they refuse to finance them. The situation is further compounded by the poor infrastructure in most areas of the country, lack of trained healthcare personnel and also poorly equipped healthcare facilities where these services are needed. These shortcomings are symptoms of inadequate attention by the state on the women sexual reproductive health rights. It, therefore, represents the government’s failure to provide, promote and safeguard the health care services intended for sexual and healthcare needs. Due to the failure by the state to promote, implement and protect this right many more complications arises due to the inequitable resource distributions and the setting of priorities that do not include health care for women. Women suffer humiliating treatment in the hands of the healthcare providers and personnel in Kenya, unlike South Africa for lack of specialized training. These health providers are at times very rude and brutal to their patients while on admission for treatment at their facilities as was observed in the case of M.N.N v Attorney General’s case. These healthcare providers sometimes detain the patients in the health facilities against their will when they fail to pay fees after treatment showing further that the State has not only failed in its cardinal duty to protect, promote and fulfill its obligations on SRHR but also ignored to fully enact and or repeal all those laws which are for or anti SRHR respectively in line with the ratified International documents. Kenya has continued to apply the Penal Code of Kenya sections 158 to 160 which outlaw abortion making it difficult for women to exercise their rights to reproductive choices. The SRHR has further been made more complex under the Constitution of Kenya 2010 at Article 26(4) which outlaws abortion and render the women’s rights to abortion so limited and therefore unable to be implemented as was intended under its Article 43(1) (a) 5.2 RECOMMENDATIONS In view of these findings above, the following recommendations will be necessary:- 5.2.1 Legalize Abortion in Kenya Lack and denial of emergency medical treatment and care for women suffering from sexual reproductive health complications/problems contribute to high rates of maternal deaths in Kenya. The government should ensure that women seeking post-abortion care and emergency abortion services do receive necessary medical treatment in all the medical facilities in the country. The State has to equip all the medical centres in all the 47 Counties of Kenya with necessary drugs and expand their accessibility by offering free services to those women suffering from the likely infringement of their SRHR. The State should amend Article 26(4) of the Constitution of Kenya 2010 that is restrictive to abortion to allow for full access to abortion by women. Article 43(1) (a) and (2) of the Constitution should be strengthened by also amending sections 158-160 of the Penal Code of Kenya which criminalizes abortion so that the women will freely exercise their rights to conceive and manage to have children whenever they are ready and willing to do so. This will effectively reduce the high mortality and morbidity rates among women and the youths in Kenya. 5.2.2 Women Empowerment and Infrastructural Improvements Poverty is a cruel reality that affects many women besides the poor infrastructural developments in Kenya which are major contributing factors to the occurrence of unnecessary deaths of women who are in need of SRHR services. This has been due to the failure by women patients to timely access the medical centres and facilities due to lack of money since they often rely on their spouses for financial needs. These medical centres and facilities are also scarce and or built far from each other making critical emergencies impossible to be attained and more often compounded by the existence of poor roads and proper infrastructure. Women’s economic independence is a problem as the majority of them are illiterate and poor. They essentially rely on their male/husbands for monetary assistance whenever they seek medical attention. Again due to cultural beliefs, men exert much more influence on women’s decision making on their sexual health issues and hence deprives women of their individual rights in making and taking proper reproductive health choices and decisions to consult health providers in time. The State should grant all women free abortion care and medical emergency treatment services. It should as a priority also empower women for social reintegration. Mobile clinics and sensitization community awareness campaigns should be implemented by the State as it happened in South Africa and proved successful. Men should also be involved in women’s sexual and reproductive health rights such as family planning, contraceptive use, and allow abortion to encourage and instil confidence by promoting, enhancing, and assisting them in protecting their own sexual reproductive health rights. 5.2.3 Intensifying SRHR Awareness Campaigns The awareness campaigns should be intensified by men and women including non-governmental organizations (NGOs) so SRHR to reach and be accessible to every woman in the country. The extent of mobilization around the HIV/AIDS issue should be undertaken with regards to unwanted pregnancies and sexually related ailments which affect the SRHR to be attained as was intended by the state. Indeed, the State policies should include intensive sensitization awareness campaigns through the media, school programs, and all other necessary mediums to provoke enough awareness. This will help the sufferers to understand their SRHRs. The society should also be sensitized not to discriminate against those women undergoing abortions so as to instil confidence and make them feel free to seek timely medical help without fear of victimization and reprimands. This will help reduce rampant illegal backstreet abortions thereby stopping the losses of human lives due to abortion and other related sexual reproductive health issues. The community and the church should also be incorporated into the social awareness campaigners for SRHR and help enhance women’s knowledge on sexual reproductive health rights. This will enable most women to know the difference between sex and safe sex, enhance community empowerment as well as the remedial actions on how to deal with various sexual reproductive health rights issues such as abortion, HIV, rape etc. (Further elaborate on the church’s position on (SRHR) Involving a Curriculum on Sexual Reproductive Programs in Schools The School curriculums at primary, secondary and university levels should include massive studies on sexual reproductive health and human rights to teach and preach against the culture of violence against women, marital rape, female genital mutilation and other SRHR issues. The educational programmes will help prevent and sensitize the youth about their SRHR. The authors of sexual reproductive health books, journals and articles should also be encouraged and motivated and or sanctioned in a very dissuasive way to carry out more and more research in this field and their works to be part of the study in schools. The schools in Kenya should also be allowed to integrate sexual reproductive health rights with Information, Communication and Technology (ICT) studies so as to necessitate faster and accessible dissemination of information on sexual reproductive health rights to a wider group of persons. Involving NGOs, Women Groups and Community-based Self-Help Groups on SRHR campaigns Particular attention to SRHR should be given by the NGOs, recognised women groups and Self-help groups on campaigns to ensure that the State considers and promotes the SRHR for the benefit of the women. As a matter of priority, they have to fight for and compel the state to meet its obligations to the fulfilment of their implementations of the sexual reproductive health rights to women as was done in South Africa. This campaigns will be aimed at reducing cases of maternal deaths and morbidity rates emanating from the tribal cultural malpractices in Kenya like FGM, marital rape, early child marriages and other cultural beliefs which tended to hinder the progressive realization of the social, economic, and cultural rights as provided for in Article 43(1) of the Constitution of Kenya 2010. In this regard, setting the time frame for the eradication of SRHR in Kenya will be necessary and mandatory so that it reduces the maternal deaths. These groups should also take cases to court on behalf of the victims whenever they are unable to do so as was being done in the Republic of South Africa. The Kenyan legislative policies and strategies should be strengthened and properly done by the courts and ensure that the SRHR is realized as was intended. The State policies on SRHR should have a linkage with ICT for implementation in the rural and peri-urban centres in Kenya as was successfully done in South Africa. There should also be increased access to integrated SRHR services for key populations; increased male involvement in the key SRH related issues, increased advocacy, and support for a range of multiple prevention technologies to strengthen integration and convergence between SRH commodities and HIV. The role of the judiciary and states accountability The judiciary in Kenya should operate like those of South Africa and be responsive to particular requirements of each and every case instead of relying on strict conceptualist distinctions to establish its reasoning and findings. The judiciary should be conversant and knowledgeable in the SRHR matters to enable it to deal appropriately with the issues of sexual reproductive health. The International legal documents affecting SRHR can also be used to clarify those laws which do not provide expressly in Kenya and be used to extensively guide the judges for more progressive and well-reasoned interpretation of the law for the SRHR to be realized as was intended by the Constitution of Kenya 2010. Co-operate with social responsibility and the responsibility of everyone According to the preamble of the UHDR in paragraphs 6 and 7, the Charter refers to the character of human beings and governance. The instrument upholds group or corporate social responsibility in realizing the human rights to all. This corporate responsibility should include companies and individuals to ensure that they contribute to the society in protecting the sexual reproductive health rights. To this end, therefore, it is necessary for Kenya to be primarily responsible for protecting SRHR and in general giving greater respect for human rights. Further and for greater sustainable performance and development, cooperate actors will ensure that all the necessary programs for the prevention and treatment of sexual reproductive health issues in their annual budgets are implemented. Employing and Training health workers This will help to strengthen the SRHR and the provision of services to women especially in the rural areas where the staff and trained personnel are so scarce. This will be made possible by ensuring that service delivery is very extensive all over the remote parts of Kenya and that the service providers be well-trained professionals and be eligible to serve in various platforms related to sexual reproductive health. It will also be of great value to ensure that a rights-based training for healthcare workers/personnel be established in all counties in Kenya to teach and sensitize the women on their sexual reproductive health and other related rights and be able to defend them whenever their rights are infringed. The health workers are on training how to treat women patients in matters that are a taboo to most tribes in Kenya and ensure that cultural values cannot override the constitutional responsibility that they are entitled to promote, protect, and realize on behalf of these patients and the State. The Reproductive Health Care Bill 2014 be enacted into Law by Parliament The Kenya Reproductive Healthcare Bill 2014 is legislated into law. Once legislated, it will be Kenya’s most efficient legislation on reproductive health because it will provide the framework for the protection and advancement of women sexual reproductive health rights. The Bill’s main objectives are to establish National and Private Health systems for both the public and private institutions that will include all other providers of Healthcare Services at both levels. It will also facilitate progressive and in an equitable manner the highest standards of SRHR services to all. This Bill if enacted will guarantee treatment of patients with dignity, respect, privacy, and confidentiality in accordance with the constitution of 2010. It will further ensure access to quality and comprehensive health care services to women and provide them accessibility to contraceptive and family planning services throughout the country. This bill will guarantee the rights to gestational surrogacy, Vitro fertilization, and voluntary termination of pregnancy during antenatal care and delivery services. The patients will have access to information shall be disseminated by both the National and County governments including every state organ in ensuring that services on SRHR are fully attained. The Bill will recognize the importance of confidentiality, non-judgmental and affordable SRHR to women. It is, therefore, the responsibility of the state to ensure that the SRHR Bill 2014 is enacted into law to enable the State’s National and County governments and other healthcare service providers to observe, respect, protect, promote, and fulfil its SRHR obligations. This is how South Africa managed to succeed in providing quality services on SRHR to its women. Kenya should take other necessary measures to ensure the implementation of these rights and that women are not facing discrimination and violence whenever they pursue these services as South Africa did. BIBLIOGRAPHY BOOKS 1. Alston P., and Ryan, G., Successor to International Human Rights in Context: Law, Politics and Morals Oxford, Oxford University Press, 2013 2. Alston P., Non- State Actors and Human Rights, Oxford University Press, 2005 (ed.) 3. 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Channon et.al “Sexual and Reproductive Health and Poverty” (2010) Centre for Global Health, Population, Poverty, and Policy. University of Southampton U.K 2. Anieku, N. I ” {En} gendering Sexuality: Human Rights Issues in Reproductive and Sexual Health” (2006) Presented at the 2006 ARSRC Sexuality Leadership Development Fellowship (SLDF) July 2006. 3. Bryn, Mary P., “Same-Sex Marriage in South Africa: A Constitutional Possibility.” (2002) Faculty Scholarship Paper 230 4. Cook, R.J., ‘Human Rights and Reproductive Self- Determination,’ (1995), American University Law Review V. 44 n. 4 5. Geeta R. G., ‘Gender, Sexuality and HIV/AIDS: The What, the Why and the How,’ (2000) Plenary Address, Global Congress on HIV/AIDS, Durban, South Africa on July 12. 6. Glasier, Anna et al, “Sexual and reproductive health: a matter of life and death.” (2006).The Lancet 368 No. 9547 7. Gustafsson, S. and Worku, S., “Teenage Motherhood and Long-Run Outcomes in South Africa,” (2007) Tinbergen Institute Discussion Paper TI 2007-024/3, Amsterdam: University of Amsterdam 8. Ineke, B. and Toebes, B. ‘Health and Human Rights Issues’ discussed by the United Nations Treaty Monitoring Bodies at p26 9. Lance, G. ‘HIV/AIDS Reproductive and Sexual Health, and the Law’ (2011) Wayne State University Law School Legal Studies Research Paper Series No 10-22 10. Olivier, D. S, ‘Corporations & Positive Duties in the Area of Economic and Social Rights’ (2013) CRIDHO Working Paper No 7 11. Petiffor, A., et.al “Young people’s sexual health in South Africa: HIV prevalence and sexual behaviours from a nationally representative household survey.” (2005) Aids 19 (14) p.57 12. Toebes, B., “The Right to health as a human right in International law” (2001) Refugee Survey Quarterly 20, No.3 (2001) p.3 PRESS RELEASES AND SOURCES 1. Abala, A. ”Innocent deaths: Abortion cases on the rise in Colleges” 18 January 2015. Accessed through on 2 February 2015 (Online) 2. Alex, P. “Kenya Plans to Hang a Nurse for Botching an Illegal Abortion.” Wednesday, October 1, 2014, Mother Jones Accessed through http://www.motherjones.com/politics/2014/10/kenyan-nurse-sentenced-hang-death-botching-abortion on 3 February 2016(online) 3. Centre for Reproductive Rights, ”CRR Case on Unlawful Detention of Women in Maternity Hospitals in the High Court of Kenya” Accessed through http://www.reproductiverights.org/press-room/crr-case-on-unlawful-detention-of-women-in-maternity-hospitals-in-the-high-court-of-kenya on 3 March 2016 4. Centre for Reproductive Rights, ‘Kenyan Women Denied Safe, Legal Abortion Services” CRR Press Release on 29 June 2015 Accessed through http://www.reproductiverights.org/press-room/kenyan-women-denied-safe-legal-abortion-services on 2 March 2016 5. Chutshela, Z “Virgins-Only Bursary” (2016) Drum Magazine, February 2016 6. Givard, F “Death Sentence in Abortion Case Compounds Dangers for Kenyan Women.” 2 October 2014, RH Reality Check accessed through https://rewire.news/article/2014/10/02/death-sentence-abortion-case-compounds-dangers-kenyan-women/ on 27 June 2016 7. Jaafari, S “Why do these Women in Kenya Support Female Genital Mutilation?” 02 July 2014 09:30 PM EDT. Accessed through http://www.pri.org/stories/2014-07-02/why-do-these-women-kenya-support-female-genital-mutilation accessed on 2 March 2016 8. Kaberia, J ”Kenya Battles Female Genital Mutilation.” Global Voices Africa. Accessed through https://iwpr.net/global-voices/kenya-battles-female-genital-mutilation on 2 March 2016 9. Maina, S. B ”Wife of Jackson Namunya says he was trying to save the life of Patient” Daily Nation, 26 September 2014. Accessed through www.nation.co.ke/news/Jackson-Namunya-Tali-Consolata-Ayuma/-/1056/2466642/-/gcr8b2/-/index.html on 3 July 2015 10. Ogemba, P ”Death Penalty for the nurse in fatal abortion.” 25 September 2014. Accessed through http://www.nation.co.ke/news/Death-penalty-for-nurse-in-fatal-abortion/-/1056/2465518/-/wnxb07/-/index.html on 3 July 2015 11. Ogemba, P “FIDA Sues Government over Failure to Provide Abortion Training” Daily Nation Monday 29 June 2015 Accessed through http://www.nation.co.ke/news/Fida-Health-Ministry-Safe-Abortions/-/1056/2769180/-/y33b9jz/-/index.html on 3 July 2015 STATUTES AND POLICIES: Republic of Kenya Statutes 1. Children Act No. 8 of 2001 Laws of Kenya 2. Constitution of Kenya, 2010 3. Female Genital Mutilation (FGM) Act No. 32 of 2011 Laws of Kenya 4. Penal Code of Kenya, Chapter 63 Laws of Kenya 5. Prohibition of Female Genital Mutilation Act, Act No. 32 of 2011 Laws of Kenya 6. Sexual Offences Act, Act No.3 of 2006 Laws of Kenya Policies 1. Contraceptive Commodity Security Strategy of Kenya 2007-2012 2. Kenya Adolescence Reproductive Health and Development Policy 2003 3. Kenya Health Policy 2012-2030 4. Kenya National Reproductive Health Strategy 200-2015 5. Kenya Vision 2030 6. National Adolescent Sexual and Reproductive Health and Rights (ASRH&R) Framework Strategy 2014-2019 7. National Condom Policy and Strategy of Kenya 2009-2014 REPUBLIC OF SOUTH AFRICA Statutes 1. Abortion and Sterilization Act, No 2 of 1975 2. Choice on Termination of Pregnancy Act No 92 of 1996 3. Constitution of the Republic of South Africa, (Act 108 of 1996) 4. National Health Act, Act No. 61 of 2003 5. Promotion of Equality and Prevention of Unfair Discrimination Act, no 4 of 2000 6. Domestic Violence Act No.116 of 1998 Policies 1. National Adolescent Sexual and Reproductive Health and Rights (ASRH&R) Framework Strategy (2014-2019) 2. National Adolescent Sexual and Reproductive Health and Rights (ASRH&R) Framework Strategy (2014-2019) 3. National Condom Policy and Management Guidelines (2011) 4. SRHR Strategy: Fulfilling our Commitments: 2011-2021 and Beyond 5. Strategic Plan for Maternal, New-born, Child and Women’s Health (MNCWH) and Nutrition in South Africa 2012-2016 LIST OF INTERNATIONAL STATUTES 1. Abuja Declaration -Millennium Development Goals (2000) 2. Addis Ababa Declaration on Population and Development in Africa and beyond 2014. 3. African Charter on Human ; Peoples Rights (ACHPR) 4. Beijing Declaration and its Platform for Action (Beijing Declaration) 5. CESCR Committee on Economic, Social and Cultural Rights 6. Colombo Declaration on Post 2015 Youth Agenda 7. Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) 8. International Conference on Population and Development Program of Action (1994) 9. Maputo Plan of Action (MPOA) on the Continental Policy Framework Strategy on Sexual and Reproductive Health and Rights (2006) 10. Optional Protocol to the Convention on the Elimination of all Forms of Discrimination Against Women (OP-CEDAW 11. United Nations Convention on the Rights of the Child (1989) (CRC) 12. United Nations International Covenant on Civil and Political Rights (ICCPR) 13. United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR) 14. Universal Declaration of Human Rights (UDHR) LIST OF CASES: Republic of Kenya 1. CM (Kenya) v Secretary of State for the Home Department CM (Kenya) v Secretary of State for the Home Department (2007) EWCA Civ 312 (13 February 2007 An appeal from the asylum and immigration tribunal Accessed through http://www.bailii.org/ew/cases/EWCA/Civ/2007/312.html on 2 February 2016 2. Enid Kaari Nganga v R, Nairobi High Court Criminal Appeal Case 95 (2006). 3. FK (FGM – Risk and Relocation) Kenya v Secretary of State for the Home Department, CG 2007 UKAIT 00041, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 4 April 2007, available at http://www.refworld.org/docid/467be50ba2.html accessed on 3 March 2016 4. M.N.N v. Attorney General of Kenya (2008) (Unreported) Accessed through http://www.reproductiverights.org/node/2435 on 2 February 2016 5. Millicent Awuor Omuya alias Maimuna Awuor and Another v The Attorney General and Four Others Petition No. 562 of 2012, (High Court of Kenya at Nairobi (Constitutional and Human Rights Division)). 6. Patricia Asero Ochieng and Two Others v. The Attorney General ; Another Petition No. 409 of 2009 (High Court of Kenya at Nairobi). 7. Republic v Jackson Namunya Tali (2014), eKLR accessed through http://www.law.utoronto.ca/utfl_file/count/documents/reprohealth/lg-05-tali-abortion-kenya.pdf on 27 June 2016 8. Republic v. Dr Nyamu and 2 others (2004) KLR Vol 2. 9. VM (FGM – Risks – Mungiki – Kikuyu/Gikuyu) Kenya v. Secretary of State for the Home Department, CG 2008 UKAIT 00049, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 9 June 2008, available at http://www.refworld.org/docid/484d4a222.html accessed 3 March 2016 10. W.J. and another v. Astarikoh Henry Amkoah and Nine Others Petition No. 331 of 2011 (High Court of Kenya at Nairobi, Constitutional and Human Rights Division) Republic of South Africa: 1. Alix Jean Carmichele -v- The Minister for Safety and Security and the Minister of Justice and Constitutional Development(2001)ZACC 22;2001(4) SA 938(CC). 2. Christian Lawyers Association of South Africa v. Minister of Health 1998 (4) SA 1113 (T), 1998 BCLR 1434 (T) 3. Christian Lawyers Association of South Africa v. Minister of Health and others 2005(1) SA (T), 2004(10) BCLR1036 (T) 4. Coalition for Gay and Lesbian Equal v. Minister of Justice (1999) SALR 6, 38-39 (CC). 5. Government of the Republic of South Africa and Others v Grootboom and Others 2000 ZACC 19; 2000 (11) BCLR 1169 (CC). 6. Head of Department, Department of Education, Free State Province v. Welkom High School ; another; Head of Department, Department of Education, Free State Province v. Harmony High School ; another(CCT 103/12) 2013 ZACC 25, 2013 (9) BCLR 989 (CC); 2014 (2) SA 228 (CC) (10 July 2013). 7. Minister of Health and Others v Treatment Action Campaign and Others (No 2) (CCT8/02) 2002 ZACC 15; 2002 (5) SA 721; 2002 (10) BCLR 1033 (5 July 2002) 8. Minister of Health and Others v Treatment Action Campaign and Others (No 2) (CCT8/02) 2002 ZACC 15; 2002 (5) SA 721; 2002 (10) BCLR 1033 (5 July 2002) 9. National Coalition for Gay and Lesbian Equal v Minister of Justice (1999) SALR 6, 38-39 (CC). 10. National State v Makwanyane and Another, 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) 11. Ntsele v. 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