The Battle over the Right to Choose: Abortion in Kenya
When *Jackie got pregnant, her world collapsed. With no income or father to provide for the baby, she did what many girls do when faced with the daunting dilemma of unwanted pregnancy; she asked her friend’s help on how to procure an abortion. Having had one before, her friend *Mwende directed Jackie to a woman who could perform one. Her treatment turned out to be large quantities of miraa, which did force a miscarriage, although not a safe one. When Jackie started showing symptoms of a woman who is seriously sick, her sister rushed her to hospital recalling the profuse bleeding. Jackie died a week after the incident in hospital.
Unsafe abortion is a major public health crisis in Kenya, accounting for 35% of Kenya’s maternal deaths according to a 2010 report by the Federation of Women Lawyers Kenya (FIDA), (In Harm’s Way: The Impact of Kenya’s Restrictive Abortion Law). Since the 2010 Constitution came into effect, lawmakers, police and reproductive health professionals have been in a constant battle over a woman’s right to legally have a safe abortion. The battle is currently fought on three fronts: Legalizing abortion through parliament, interpreting the constitution, and changing the penalty for carrying out illegal abortions.
While “The Termination of Pregnancy” bill is pending in parliament the biggest fight is taking place over interpreting the constitution. Dr John Nyamu is the Chairman of the Reproductive Health Network and represents a group of health care professionals who argue that the constitution in fact makes abortion legal, as it states that abortion is permitted if the “health of the mother is in danger”. That means it all comes down to how broadly you interpret health. “The definition of [the] World Health Organization has been adopted by the Ministry of Medical services in their document-Standards and Guidelines for reducing morbidity and mortality from unsafe abortion [in] September 2012- which states very clearly that: ‘Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity,’” says Dr. Nyamu, arguing that for instance, financial reasons would make one eligible for a legal abortion.
Deputy President William Ruto, is not one who shares this conviction. “Abortion is unconstitutional and it should remain as such, there shouldn’t be any grey area when it comes to allowing the killing of anybody, whether it’s the mother or the child,” said Deputy President William Ruto, during the Deputy Presidential debate earlier this year. It is clear from his remarks that even in 2013, there is a wide dispute about how the law should be interpreted.
This means that doctors are currently caught in a web of ambiguous legislation and the prospect of extreme ramifications. Safe abortion is to some extent legal in Kenya but no one is quite sure where the boundaries are set. Getting any lawyer on record with a clear statement has proved nearly impossible. What leaves many doctors hesitant to perform the procedure is the fact that if a judge doesn’t agree with his interpretation he could end up spending 14 years in prison. Even though the Constitution is supreme, which automatically nullifies section 158-160 of the penal code, its presence means that doctors are not comfortable openly offering safe abortions. This in turn pushes women who are ignorant of their reproductive health rights to seek unsafe methods of abortion.
More so, the language that is used in public discourages women from openly asking for information, as they fear being condemned. “What the Law is telling us is; let the women take poison, let them use any crude method to terminate the pregnancy, but when they come to the hospital, now in emergency, handle it but when they are better off, their health has not been seriously endangered, don’t touch them.” This was the emotional statement by Dr Guyo Jaldesa, Secretary of the Kenya Obstetrical Gynaecological Society (KOGS), when he appeared on Nation Television (NTV 2010).
The advocacy for safe abortion is championed by some health professionals and even some notable government officials who support a more mainstream practice of safe abortion. “We have a task ahead of us and this is one of passing the correct information to Kenyan women, so that at least the 35 percent who die of complications [from] abortions, [can be saved] because we know it is possible,” says Dr Simon Mueke who heads Obstetric and Gynecology services in the Ministry of Health Services. Although many women place themselves in harm’s way to get an abortion, there are currently safe options and some girls are lucky to encounter doctors who are willing to provide them with proper guidance and procedures.
*Anna is a confident young woman who was anti-abortion until she confirmed her pregnancy as a third year university student. She faced her dilemma with little money and an irresponsible partner. “When I told [him I was pregnant with his child] he said he’s Catholic, and Catholics don’t agree [with] abortion. Meanwhile, Catholics also do not agree on pre-marital sex! All of a sudden he was very Catholic and could not support me…even right now he has got 4 children with 4 different mothers and he supports none of them.” Anna adds, “I’d tell myself, I can do this. If I just explain to my mom, at some point she will understand and help me. I’d go [through] my options and come back to abortion,” she admits.
Immediately after learning of her pregnancy she and a friend went to see a licensed doctor who took her through her options before committing to the procedure. When she remained resolute on her decision, he asked her to return the next morning after thinking about it some more. Anna got a safe abortion and went on with her life. Anna had the opportunity to practice her legal right to get an abortion, while many others are left without the same choice.
Written by Josephine Opar
