' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 27 OF 2022
RACHAEL MWIKALI………………………………..1 ST PETITIONER
ESTHER AOKO………………………………………2 ND PETITIONER
AMBASSADOR FOR YOUTH & ADOLESCENT REPRODUCTIVE HEALTH PROGRAMME (AYARHEP)………………………..3 RD PETITIONER
KENYA LEGAL AND ETHICAL ISSUES NETWORK ON HIV & AIDS………………………………………………..4 TH PETITIONER
VERSUS
CABINET SECRETARY
MINISTRY OF HEALTH ……………………………1 ST RESPONDENT
THE ATTORNEY GENERAL……………………….2 ND RESPONDENT
AND
KENYA OBSTETRICAL
GYNAECOLOGY SOCIETY……………..………1 ST INTERESTED PARTY
KARIBA INSTITUTE……………………………..2 ND INTERESTED PARTY
KENYA CHRISTIAN PROFESSIONALS FORUM…3 RD INTERESTED PARTY
JUDGMENT
Background
In 2017, the Ministry of Health (the 1 st respondent) commenced the process of redrafting the National Reproductive Health Policy (the Policy) in conjunction with other stakeholders including the Council of Governors. In September 2021, the 4 th petitioner was invited by the Council of Governors for stakeholder consultation on the draft policy, which the 4 th petitioner attended on 17 th September 2021 and presented oral submissions. The meeting was an engagement with the Council of Governors but not the 1 st respondent.
On 5 th October 2021, the 4 th petitioner with other Human rights organizations wrote to the head of the Reproductive and Maternal Health Division seeking to be included and give input in the drafting process. The 4 th petitioner further highlighted key issues to be addressed in the draft policy but did not receive a response.
In a letter dated 1 st March 2022, the Ministry of Health indicated that the Reproductive and Maternal Health Division in collaboration with partners had revised several reproductive health documents and was moving to the next stage of printing, launching and disseminating documents at the national and county levels to facilitate implementation within various reproductive health programmes. The national launch was tentatively scheduled for 23 rd March 2022.
The 4 th petitioner and other organizations responded to the letter and expressing discontent and called for urgent steps to ensure adequate and meaning public participation before the launch and operationalization of the policy. They also pointed out that the policy should be aligned with the Constitution. On 22 nd March 2022, a coalition for grassroots human rights defenders led by the 1 st petitioner delivered a petition to the 1 st respondent’s office demanding community involvement in the formulation and validation process of the policy.
Following that action the Ministry sent out an invitation to a meeting to be held on 6 th April 2022 to deliberate on the draft policy. The 4 th petitioner attended the meeting and highlighted a few key issues, such as lack of a guiding framework for safe abortion care, among others.
The 1 st respondent again invited stakeholders for a meeting on 25 th April 2022 for a workshop on the draft policy which the 4 th petitioner attended. The 1 st respondent promised to consider submissions by participants and share the updated version of the draft policy together with the matrix of comments and responses and host a validation meeting prior to the launching of the Policy document, which however did not happen.
Later on, (On 28 th June 2022), the 1 st respondent sent out an invitation for a validation meeting to be held on 1 st July 2022. Due to short notice coupled with what the petitioners said was the 1 st respondent ‘s refusal to provide the policy document to be validated, various stakeholders, including the 1 st and 4 th petitioners did not attend. The petitioners indicated that those who attended said the validation meeting was not participatory but a dress down from Dr. Stephen Kaliti, Head of the Reproductive and Maternal Health Division. The 4 th petitioner wrote a letter of protest to the 1 st respondent and disengaged itself from the process leading to the launch of the policy on 5 th July 2022.
Petitioners’ case
The petitioners filed this petition against the Cabinet Secretary, Ministry of Health and the Attorney General, (the respondents) contending that the policy is unconstitutional because its formulation did not meet the threshold for public participation; its provisions undermine the right to life and reproductive health.
The petitioners asserted that the policy uses exclusionary language that denies critical reproductive healthcare interventions to the majority of women and girls. The petitioners took issue with Clauses 2.3.3; 3.4.2 and 4.2.3- paragraph 6 of the policy because they demonstrate bias towards family to the detriment of the rest of the population of reproductive age. According to the petitioners, clause 2.3.3 draws data on the use of modern contraceptives from a population of married women while clause 3.4.2 focuses on the provision of family planning for couples that have achieved their desired family sizes. Clause 4.2.3 recognises the central role of the family in the reproductive health.
The petitioners stated that the policy excludes adolescent women and young girls from benefiting from reproductive health as it envisages provisions of cervical cancer screening services for women between 25-49 years only. The policy further limits interventions from healthcare workers with regard to accessing safe abortion because it requires that termination of pregnancy be performed based on the opinion of a trained health professional with the proficiency to ensure both the mother and the unborn child receive the highest attainable standard of healthcare.
The petitioners asserted that healthcare interventions under the policy are discriminatory against young women below 21 years because they are denied access to reproductive health services on grounds that they have not attained full cognitive competence on matters of sexuality and reproduction. The petitioners contended that by making a blanket intervention, the Ministry failed to give regard to both facts and evidence on teenage pregnancies and HIV and AIDS infections thus, the policy contradicts other laws and policies.
According to the petitioners, it is unreasonable for the policy to require parental consent prior to provision of reproductive health services and fails to provide guidelines for instances where parental or guardian consent cannot be procured. The policy also fails to consider the legal age of majority and seeks to unconstitutionally limit an adult’s ability to consent to their own healthcare services.
The petitioners maintained that the policy excludes unmarried women from fertility treatment and places a mandatory requirement that all pregnant women and their families to be tested for HIV thereby creating a barrier for access to critical maternal healthcare and commodities and the right to privacy, dignity and adequate healthcare.
The petitioners also took issue with Clause 3.4.12 for not only limiting the rights of intersex persons but also discriminating against intersex persons who do not wish to have assignment of sex into the “correct sex.” They faulted Clause 4.2.3 paragraph 8 on the basis that it makes the Director General for Health the custodian of all reproductive health research thus, usurping the mandate of the National Commission on Science, Technology and Innovation.
The petitioners asserted therefore that the policy violates articles several articles of the Constitution, including 10 (2) (a), 24, 26 (1) and (4); 27; 33; 35; 43 (1) (a); 53 (1) (c) ,232 (1) (d) and 232 (2); section 15 and 68 of the Health Act, 2017; sections 28(3), 146 and the First Schedule to the Children’s Act, 2022; sections 4 and 5 of the Access to Information Act; sections 6 and 7 of the Science Technology and Innovation Act; sections 22, 23, 34 and 35 of the East African Community HIV and AIDS Prevention and Management Act; Policy Guideline 2 of the Public Service Commission Guidelines for Public Participation in Policy Making, 2015 and article 14 of the Maputo Protocol.
According to the petitioners, the gaps and economic barriers in provision of safe and accessible health services lead young girls to seeking reproductive health services in unsafe environment. Informal settlements have high levels of sexual violence and teenage pregnancies which lead to unsafe abortion and many negative outcomes for women.
They stated that on 6 th April 2022, the Ministry held a meeting to deliberate on the Policy at the Emory Hotel in Kileleshwa which the 1 st petitioner attended and made contributions on lack of meaningful engagement, exclusion of community views and disregard of scientific data and facts. According to the petitioners, a director at the Ministry (Dr. Andrew Mulwa), later admitted shortcoming in undertaking meaningful public participation and promised that the Ministry would ensure that time set aside to undertake community engagement which did not happen.
The petitioners stated that on 18 th April 2022, the Ministry invited partners to attend a workshop on the policy on 25 th April 2022 in Mombasa but the 1 st petitioner did not attend the meeting because the notice was short. On 1 st July 2022, the 4 th petitioner informed the 1 st petitioner that the Ministry was holding a validation meeting at Emory Hotel in Kileleshwa. The 1 st petitioner sent a representative to the meeting while she tried to join the meeting online in vain. The policy was launched on 5 th July 2022 but some of the petitioners were not invited to attend and witness the launch.
The 2 nd petitioner admitted that on 31 st March 2022, the Ministry sent out an invitation for a meeting to deliberate on the policy to be held on 6 th April 2022 at Emory Hotel in Kileleshwa, Nairobi which she attended. Various participants also attended. Participants from the civil society highlighted the fact that the draft policy was missing interventions thus, it would be detrimental to healthcare provisions for women and girls.
On 18 th April 2022, the 2 nd petitioner received invitation from the Ministry to attend a workshop over the policy between 25 th April 2022 and 29 th April 2022 at Pride Inn Flamingo Resort Mombasa. During the workshop, participants made various contributions on the retrogressive aspects in the draft policy.
The drafting process concluded on 28 th April 2022 and representatives from the Ministry and the participants agreed that the Ministry would consider and incorporate suggestions given and share the updated version of the draft policy together with the matrix on comments and responses and host a validation meeting on 29 th April 2022, which was not done.
The 2 nd petitioner stated that the Ministry sent out an invite on 28 th June 2022 for a meeting scheduled for July 2022 to validate policy. The 2 nd petitioner attended the meeting but stated that she was unable to meaningfully participate because the draft policy had not been shared and the notice was too short. The validation meeting was not participatory but a dress down from one Dr. Stephen Kaliti. On 5 th July 2022, the 1 st respondent launched the policy thus, the issues raised in the petition.
Just like the other petitioners, the 4 th petitioner reiterated the concerns raised in the petition. According to the 4 th petitioner, the push to move the age of sexual debut from 18 to 21 years is without any scientific evidence and is contrary to the laws and policies that allow minors to consent to their own reproductive health services. By requiring parental consent before children receive reproductive healthcare services, the policy limits the ability of healthcare workers to provide services to adolescents based on their evolving capacities.
The petitioners asserted that the policy conflicts with various existing guidelines that healthcare providers rely on in providing healthcare services. The policy contains clauses that will serve as barriers to reproductive healthcare service provision for all Kenyans and particularly women, children, intersex persons and other vulnerable community populations.
The petitioners also took issue with Clause 3.4.8 paragraph 7 on the premise that Linda Mama is not anchored in law; remains vulnerable to inadequate implementation and its financing is subject to political goodwill. In their view, the policy should address the Linda Mama Programme wholesomely as it is inadequate because the requirements for registration lock out those unable to prove citizenship, especially those who reside in marginalized and remote areas. The programme also locks out adolescents who may require critical reproductive healthcare services but do not have access to a guardian in a timely manner.
The petitioners asserted that provision of reproductive healthcare services relating to termination of pregnancy such as abortion and post abortion care is unclear since the policy uses a non-medical and non-scientific and inaccurate definition of abortion.
Regarding Clause 3.4.1 at paragraph 12, the petitioners asserted that the requirement that Health professionals terminate a pregnancy taking into account the health of both the mother and the unborn child is confusing and unclear especially on the definition of the term abortion. This may result in unwarranted barriers to women in need of abortion and post abortion care as it creates an environment of fear and ambiguity.
The petitioner maintained that clause 3.4.4 requiring that all pregnant women and their families be tested for HIV, the petitioner asserted that it may present a barrier to accessing comprehensive antenatal care services for patients who may fear seeking these services due to coercion. There is no mention of what reproductive health care interventions that children living with HIV should be afforded, particularly as they transition into adolescence and through to adulthood.
The petitioners contended that the procedure set out at Clause 3.4.12 paragraph 3 on intersex persons is ambiguous and unclear as it does not specify what professional body the intersex persons are required to present themselves before. Further, the policy direction does not envision a situation where an intersex person may have no desire to undergo transition and chooses to live as intersex throughout their lives. It was also contended that paragraph 5 introduces bureaucracy into the registration of children born with ambiguous genitalia by providing that these births be reported or notified to a government health facility. It does not also provide a solution to the systemic discrimination in registration of intersex persons at birth and creates further differentiation without justification.
The petitioners were of the view, that Clauses 3.4. 13 and 4.2.3.8 at paragraph 5 shun the role county governments play in promoting diversity by providing for the mainstreaming of reproductive health research.
Based on the above concerns, the petitioners sought the following reliefs:
A declaration do hereby issue that the process arrived at in developing the National Reproductive Health Policy 2022-2032 violated the right to meaningful public participation guaranteed in articles 10(1) & 10 (2) (a), 35 and 232 (1) (d) of the Constitution as read together with section 15 of the Health Act and the Public Service Commission Guidelines for Public Participation in Policy Making, 2015.
A declaration do hereby issue that the fundamental right to life and the right to the highest attainable standard of health including reproductive healthcare as envisaged by articles 26(1) and (4), 27, 35, 43 (1) (a), 53 (1) (c)of the Constitution as read together with section 34 (1) (a), 34 (2)(b) and 35 of the East African Community HIV Prevention and Management Act, 2012 and sections 5, 6, 7 and 68 of the Health Act, 2017 and section 5 of the Access to Information Act encompass access to sexual and reproductive health services, information and commodities for all Kenyans.
A declaration that the Reproductive Health Policy 2022-2032 violates the right to reproductive health as provided under articles 26 (4), 27, 35, 43 (1) (a), 53 (1) (c) of the Constitution as read together with section 21, 22, 34 (1) (a), 34 (2) (b) and 35 of the East African Community HIV Prevention and Management Act, 2012 and sections 5, 6, 7 and 68 of the Health Act, 2017 and section 5 of the Access to Information Act.
A declaration that the Reproductive Health Policy 2022-2023 violates the rights of children under article 53(1) (c) and (2), as read with section 16 (2) (3) and (4) of the Children Act in the manner it limits the provision of reproductive health interventions to adolescents.
A declaration do issue that the Reproductive Health Policy 2022-2032 violates article 33 on the right to freedom of expression, including academic freedom and freedom of scientific research as read with sections 6 and 7 of the Science and Technology Act, 2013.
A mandatory order do issue barring the respondents from implementing the Reproductive Health Policy 2022-2032 in so far as the same is contrary to the constitutional principle of public participation and a violation of article 10 (1) & 10(2) (a), 35 and 232 (1) (d) and restricts the right to health under article 43 (1)(a), 26 (4) and 53(1) (c) of the Constitution.
In addition to or in the alternative to prayer (vi), a mandatory order do issue suspending the implementation of clause 2.3.3, clause 2.3.7,clause 3.4.1 paragraph 12, clause 3.4.2, clause 3.4.4 paragraph 2, clause 3.4.8 paragraph 1, clause 3.4.8 paragraph 8, clause 3.4.11 paragraph 5 and 6, clause 3.4.12 paragraph 1,3 and 5, clause 3.4.13 paragraph 2, and clause 4.2.3.8 paragraph 5 of the Reproductive Health Policy 2022-2032 in so far those provisions violate the right to highest attainable standard of health under article 43 (1) (a), 26(4) and 53 (1) (c) of the Constitution.
A mandatory order do issue compelling the respondent to within 30 days of this order, review the National Reproductive Health Policy 2022-2032 and conduct this review together with the petitioners, relevant stakeholders and members of the public in order to consider all views of interested and affected parties.
A structural interdict do issue compelling the 1 st respondent to report back to this Honourable Court every 45 days to confirm compliance with order (viii) above.
The Honourable Court do issue any further orders, directions and remedies as it may deem fit and just in the circumstances.
There be no orders as to costs.
Responses
Respondents’ responses
The respondents opposed the petition through a replying affidavit sworn Dr. Patrick Amoth. The respondents stated that the Reproductive Health Policy developed in 2007 needed to be reviewed to align it with the changed legal framework and the Constitution, 2010. In line with its mandate in accordance the Ministry initiated a review of the policy in 2016 through a comprehensive public exercise, stakeholder engagement and existing laws and policies.
The respondents maintained that there was comprehensive public participation an cited as an example, the Council of Governors’ letter dated 11 th September 2020; the letter by the Cabinet Secretary for Health dated 4 th November 2020; the technical directive by the Ministry dated 19 th October 2020; a joint Reproductive Health Policy consultative meeting held at Lake Naivasha Resort on 20 th and 21 st November 2020 and a publication summit held from 20 th April to 25 th April 2022 at Pride Inn Flamingo, Mombasa.
It was the respondents’ position that the right to safe and legal abortion in exceptional circumstances is articulated in article 26(4) of the Constitution and a guiding framework is necessary to ensure access to safe abortion services provided by trained medical personnel.
The respondents maintained that decisions on sex and reproduction are complex and developmental competence is only attained well over the age of 21. It is therefore the role of policies to protect children before that maturity and competence is achieved. Moreover, policies facilitating liberal sex among or with children offend any rational science behind the promotion and protection of the health of a child or adolescent and facilitate the triple threat of HIV and sexually transmitted infections, premature childhood pregnancies and sexual abuse of children.
The respondents asserted that the petitioners’ desire to exclude parental consent on behalf of children is against section 16(1) of the Children Act, which provides that “ Every child shall have the right to the highest attainable standard of healthcare services in accordance with Article 43 of the Constitution: Provided that the provisions of reproductive health services to children shall be subject to the express consent of the parent or guardian.”
The respondents asserted that while there has been a push to include Comprehensive Sexuality Education in the policy, such a course would undermine the government’s desire to develop a culturally acceptable and competency-based age-appropriate education material on sexually reproductive health for minors.
The respondents maintained that the Policy extensively addresses universal unfettered access to quality post abortion care for all and enforces the right to quality healthcare without discrimination. The respondents denied the petitioners’ claim that there is discrimination in the provision of Assisted Reproductive Technology. According to the respondents, Assisted Reproductive Technology is a medical intervention for treating infertility. They maintained that they complied with the law in coming up with the policy.
1 st interested party’s response
Kenya Obstetrical Gynaecology Society, the 1 st interested party supported the petition through a replying affidavit sworn by its president Dr. Kireki Omanwa. The 1 st interested party asserted that it was not adequately involved in the drafting of the policy.
According to the 1 st interested party, the policy is incoherent and does not align itself with other critical policies aimed at strengthening reproductive health frameworks in Kenya, specifically- Kenya-AIDS Strategic Framework II 2020-2024; National Adolescent Sexual and Reproductive Health Policy-2015; Standards and Guidelines for Reducing Morbidity and mortality for unsafe Abortion in Kenya-2012; National Guidelines on Management of Sexual Violence-2014; National Guidelines for Provisions of Adolescent Youth-Friendly Services (YFS) in Kenya (2005); National AIDS and STI Control Program (NASCOP)and Adolescent Package of Care in Kenya; A Health Care Provider Guide to Adolescent Care (2014).
The 1 st interested party contended that the requirement for mandatory HIV/AIDS testing is not in line with the provisions of section 2 and 4 of the HIV and AIDS Prevention and Control Act, 2006; the National Guidelines for HIV Testing and Counselling in Kenya, Ministry of Public Health and Sanitation (2008); the National Guidelines for Management of Sexual Violence in Kenya 2014; the National Adolescent Sexual and Reproductive Policy 2015 and the National Guidelines for Provision of Adolescent and Youth Friendly Services in Kenya (2006).
Section 2 of HIV and AIDS Prevention and Control Act, 2006 is an interpretative section while section 4 requires the government to promote awareness about the causes, modes of transmission consequences, means of prevention and control through comprehensive nationwide education and information campaign through its various forums.
The 1 st interested party asserted that the policy makes limited or no reference to other legal frameworks and contradicts current policy positions. The policy does not make reference to article 26(4) of the Constitution which permits safe legal abortion under limited circumstances. The policy further fails to acknowledge the progressive pronouncements in the decision of Federation of Women Lawyers (Fida-Kenya) & 3 others v Attorney General & 2 others; East Africa Centre for Law & Justice & 6 others (Interested Party) & Women’s Link Worldwide & 2 others (Amicus Curiae) [2019] KEHC 6928 (KLR) and PAK and another v Attorney General & 3 others [2022] KEHC 262 (KLR).
The 1 st interested party further stated that the policy fails to differentiate between safe abortion and unsafe abortion and does not address the challenges of unsafe abortion in Kenya because of the uncertainty in health policies regarding when healthcare providers can legally provide abortion services. The policy does not also align itself with the Sexual Offences Act and the National Guidelines for Management of Sexual Violence in Kenya, 2014.
The 1 st interested party maintained that using consistent terminology in health policies is essential for clear and effective communication as well as ensuring that policies are properly and uniformly implemented across different settings. On the other hand, inconsistent terminologies lead to confusion, misunderstanding and inconsistencies in policy implementation with a negative impact on the health and well-being of individuals and communities.
The 1 st interested party urged for the removal of the definition of “Crisis” in the policy for being inaccurate, misinforming and not applicable within the parlance of reproductive health and maternal healthcare. The definition further contradicts the provisions of Article 8 of the Constitution.
According to the 1 st interested party, the policy restriction on access to sexual and reproductive health information for individuals under the age of 21 undermines the principle of confidential, independent healthcare access for young people. By limiting access to critical information and services, the policy fails to address the urgent needs of young people and instead increases their vulnerability to adverse health outcomes.
It was the 1 st interested party’s position that requiring parental involvement when youth seek sensitive healthcare services is counterproductive. The 1 st interested party was of the view, that as best practice, an adolescent with the unbiased scientifically accurate and evidence-based guidance of a trained health professional, be allowed to give consent for all types of healthcare and to have their confidentiality in the provision of that care, as it is essential that adolescents have access to confidential health care.
2 nd interested party’s response
The 2 nd interested party also supported the petition through a replying affidavit sworn by Christine Nkonge. The 2 nd interested party agreed with the petitioners that this court has jurisdiction to determine whether the policy is consistent with the Constitution; the 1 st respondent was required to consult county governments; the Policy limits the provision on reproductive healthcare interventions to adolescents; creates discrimination based on marital status; the provisions of reproductive fertility treatment to infertile couples restricts the provisions of fertility treatment to all persons and cervical cancer screening and reproductive health services to those above 21 years is discriminatory.
The 2 nd interested party further supported the petitioners’ position that information concerning reproductive health services is important information that affects individuals and the nation. Any information concerning the development of reproductive health service policies should have been proactively disclosed under article 35(3) of the Constitution and section 5 of the Access to Information Act. The 2 nd interested party also agreed that the policy violates freedom of expression, including academic freedom and freedom of scientific research.
3 rd interested party’s response
The 3 rd interested party on its part opposed the petition through a replying affidavit sworn by Dr. Wahome Ngare. The 3 rd interested party agreed with the respondents on the need to review the previous policy.
Regarding public participation, the 3 rd interested maintained that there was exhaustive public participation and had interacting with the draft policy in a technical meeting of retreat between 8 th -11 th October 2019 held in Naivasha. The meeting included medical experts in Paediatrics, Obstetrics and Gynaecology, the Ministry of Health technical departments, Community Service Organizations and international partners, among others.
In September 2020, the Council of Governors asked for more time and was requested to present l submissions from counties. The request for further extension of time was again accepted in November 2020. In the same month, the Ministry sought further public participation and engagements with Civil Society organizations and called for more submissions to improve the policy.
On 10 th November 2020, the Department of Health and Sanitation of Kisumu County summitted its memorandum on the Policy. Another meeting was called by the Council of Governors to include Members of Health Committee of the Council of Governors, Members of Health Committees of both Houses of Parliament was held on 28 th September 2021 at Enashipai Resort in Naivasha. The two levels of government held a joint consultative meeting over the policy at Lake Naivasha Resort on 20 th and 21 st November 2021.
On 2 nd February 2022, a meeting of Council Technical Officers took place. The Ministry led several consultative forums on the draft policy and engaged multiple stakeholders between 2020-2022. On 31 st March 2022, the Ministry invited reproductive health stakeholders and heads of civil societies involved in reproductive health to a meeting held on 6 th April 2022 at the Emory Hotel. A copy of the policy was also shared.
The 3 rd interested party was represented and participated in the meeting of 6 th April 2020 in which there emerged different schools of thoughts, the "Pro-life" and Pro-family group" and the "Sexual and Reproductive Health and Right" group.
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 27 OF 2022
RACHAEL MWIKALI………………………………..1 ST PETITIONER
ESTHER AOKO………………………………………2 ND PETITIONER
AMBASSADOR FOR YOUTH & ADOLESCENT REPRODUCTIVE HEALTH PROGRAMME (AYARHEP)………………………..3 RD PETITIONER
KENYA LEGAL AND ETHICAL ISSUES NETWORK ON HIV & AIDS………………………………………………..4 TH PETITIONER
VERSUS
CABINET SECRETARY
MINISTRY OF HEALTH ……………………………1 ST RESPONDENT
THE ATTORNEY GENERAL……………………….2 ND RESPONDENT
AND
KENYA OBSTETRICAL
GYNAECOLOGY SOCIETY……………..………1 ST INTERESTED PARTY
KARIBA INSTITUTE……………………………..2 ND INTERESTED PARTY
KENYA CHRISTIAN PROFESSIONALS FORUM…3 RD INTERESTED PARTY
JUDGMENT
Background
In 2017, the Ministry of Health (the 1 st respondent) commenced the process of redrafting the National Reproductive Health Policy (the Policy) in conjunction with other stakeholders including the Council of Governors. In September 2021, the 4 th petitioner was invited by the Council of Governors for stakeholder consultation on the draft policy, which the 4 th petitioner attended on 17 th September 2021 and presented oral submissions. The meeting was an engagement with the Council of Governors but not the 1 st respondent.
On 5 th October 2021, the 4 th petitioner with other Human rights organizations wrote to the head of the Reproductive and Maternal Health Division seeking to be included and give input in the drafting process. The 4 th petitioner further highlighted key issues to be addressed in the draft policy but did not receive a response.
In a letter dated 1 st March 2022, the Ministry of Health indicated that the Reproductive and Maternal Health Division in collaboration with partners had revised several reproductive health documents and was moving to the next stage of printing, launching and disseminating documents at the national and county levels to facilitate implementation within various reproductive health programmes. The national launch was tentatively scheduled for 23 rd March 2022.
The 4 th petitioner and other organizations responded to the letter and expressing discontent and called for urgent steps to ensure adequate and meaning public participation before the launch and operationalization of the policy. They also pointed out that the policy should be aligned with the Constitution. On 22 nd March 2022, a coalition for grassroots human rights defenders led by the 1 st petitioner delivered a petition to the 1 st respondent’s office demanding community involvement in the formulation and validation process of the policy.
Following that action the Ministry sent out an invitation to a meeting to be held on 6 th April 2022 to deliberate on the draft policy. The 4 th petitioner attended the meeting and highlighted a few key issues, such as lack of a guiding framework for safe abortion care, among others.
The 1 st respondent again invited stakeholders for a meeting on 25 th April 2022 for a workshop on the draft policy which the 4 th petitioner attended. The 1 st respondent promised to consider submissions by participants and share the updated version of the draft policy together with the matrix of comments and responses and host a validation meeting prior to the launching of the Policy document, which however did not happen.
Later on, (On 28 th June 2022), the 1 st respondent sent out an invitation for a validation meeting to be held on 1 st July 2022. Due to short notice coupled with what the petitioners said was the 1 st respondent ‘s refusal to provide the policy document to be validated, various stakeholders, including the 1 st and 4 th petitioners did not attend. The petitioners indicated that those who attended said the validation meeting was not participatory but a dress down from Dr. Stephen Kaliti, Head of the Reproductive and Maternal Health Division. The 4 th petitioner wrote a letter of protest to the 1 st respondent and disengaged itself from the process leading to the launch of the policy on 5 th July 2022.
Petitioners’ case
The petitioners filed this petition against the Cabinet Secretary, Ministry of Health and the Attorney General, (the respondents) contending that the policy is unconstitutional because its formulation did not meet the threshold for public participation; its provisions undermine the right to life and reproductive health.
The petitioners asserted that the policy uses exclusionary language that denies critical reproductive healthcare interventions to the majority of women and girls. The petitioners took issue with Clauses 2.3.3; 3.4.2 and 4.2.3- paragraph 6 of the policy because they demonstrate bias towards family to the detriment of the rest of the population of reproductive age. According to the petitioners, clause 2.3.3 draws data on the use of modern contraceptives from a population of married women while clause 3.4.2 focuses on the provision of family planning for couples that have achieved their desired family sizes. Clause 4.2.3 recognises the central role of the family in the reproductive health.
The petitioners stated that the policy excludes adolescent women and young girls from benefiting from reproductive health as it envisages provisions of cervical cancer screening services for women between 25-49 years only. The policy further limits interventions from healthcare workers with regard to accessing safe abortion because it requires that termination of pregnancy be performed based on the opinion of a trained health professional with the proficiency to ensure both the mother and the unborn child receive the highest attainable standard of healthcare.
The petitioners asserted that healthcare interventions under the policy are discriminatory against young women below 21 years because they are denied access to reproductive health services on grounds that they have not attained full cognitive competence on matters of sexuality and reproduction. The petitioners contended that by making a blanket intervention, the Ministry failed to give regard to both facts and evidence on teenage pregnancies and HIV and AIDS infections thus, the policy contradicts other laws and policies.
According to the petitioners, it is unreasonable for the policy to require parental consent prior to provision of reproductive health services and fails to provide guidelines for instances where parental or guardian consent cannot be procured. The policy also fails to consider the legal age of majority and seeks to unconstitutionally limit an adult’s ability to consent to their own healthcare services.
The petitioners maintained that the policy excludes unmarried women from fertility treatment and places a mandatory requirement that all pregnant women and their families to be tested for HIV thereby creating a barrier for access to critical maternal healthcare and commodities and the right to privacy, dignity and adequate healthcare.
The petitioners also took issue with Clause 3.4.12 for not only limiting the rights of intersex persons but also discriminating against intersex persons who do not wish to have assignment of sex into the “correct sex.” They faulted Clause 4.2.3 paragraph 8 on the basis that it makes the Director General for Health the custodian of all reproductive health research thus, usurping the mandate of the National Commission on Science, Technology and Innovation.
The petitioners asserted therefore that the policy violates articles several articles of the Constitution, including 10 (2) (a), 24, 26 (1) and (4); 27; 33; 35; 43 (1) (a); 53 (1) (c) ,232 (1) (d) and 232 (2); section 15 and 68 of the Health Act, 2017; sections 28(3), 146 and the First Schedule to the Children’s Act, 2022; sections 4 and 5 of the Access to Information Act; sections 6 and 7 of the Science Technology and Innovation Act; sections 22, 23, 34 and 35 of the East African Community HIV and AIDS Prevention and Management Act; Policy Guideline 2 of the Public Service Commission Guidelines for Public Participation in Policy Making, 2015 and article 14 of the Maputo Protocol.
According to the petitioners, the gaps and economic barriers in provision of safe and accessible health services lead young girls to seeking reproductive health services in unsafe environment. Informal settlements have high levels of sexual violence and teenage pregnancies which lead to unsafe abortion and many negative outcomes for women.
They stated that on 6 th April 2022, the Ministry held a meeting to deliberate on the Policy at the Emory Hotel in Kileleshwa which the 1 st petitioner attended and made contributions on lack of meaningful engagement, exclusion of community views and disregard of scientific data and facts. According to the petitioners, a director at the Ministry (Dr. Andrew Mulwa), later admitted shortcoming in undertaking meaningful public participation and promised that the Ministry would ensure that time set aside to undertake community engagement which did not happen.
The petitioners stated that on 18 th April 2022, the Ministry invited partners to attend a workshop on the policy on 25 th April 2022 in Mombasa but the 1 st petitioner did not attend the meeting because the notice was short. On 1 st July 2022, the 4 th petitioner informed the 1 st petitioner that the Ministry was holding a validation meeting at Emory Hotel in Kileleshwa. The 1 st petitioner sent a representative to the meeting while she tried to join the meeting online in vain. The policy was launched on 5 th July 2022 but some of the petitioners were not invited to attend and witness the launch.
The 2 nd petitioner admitted that on 31 st March 2022, the Ministry sent out an invitation for a meeting to deliberate on the policy to be held on 6 th April 2022 at Emory Hotel in Kileleshwa, Nairobi which she attended. Various participants also attended. Participants from the civil society highlighted the fact that the draft policy was missing interventions thus, it would be detrimental to healthcare provisions for women and girls.
On 18 th April 2022, the 2 nd petitioner received invitation from the Ministry to attend a workshop over the policy between 25 th April 2022 and 29 th April 2022 at Pride Inn Flamingo Resort Mombasa. During the workshop, participants made various contributions on the retrogressive aspects in the draft policy.
The drafting process concluded on 28 th April 2022 and representatives from the Ministry and the participants agreed that the Ministry would consider and incorporate suggestions given and share the updated version of the draft policy together with the matrix on comments and responses and host a validation meeting on 29 th April 2022, which was not done.
The 2 nd petitioner stated that the Ministry sent out an invite on 28 th June 2022 for a meeting scheduled for July 2022 to validate policy. The 2 nd petitioner attended the meeting but stated that she was unable to meaningfully participate because the draft policy had not been shared and the notice was too short. The validation meeting was not participatory but a dress down from one Dr. Stephen Kaliti. On 5 th July 2022, the 1 st respondent launched the policy thus, the issues raised in the petition.
Just like the other petitioners, the 4 th petitioner reiterated the concerns raised in the petition. According to the 4 th petitioner, the push to move the age of sexual debut from 18 to 21 years is without any scientific evidence and is contrary to the laws and policies that allow minors to consent to their own reproductive health services. By requiring parental consent before children receive reproductive healthcare services, the policy limits the ability of healthcare workers to provide services to adolescents based on their evolving capacities.
The petitioners asserted that the policy conflicts with various existing guidelines that healthcare providers rely on in providing healthcare services. The policy contains clauses that will serve as barriers to reproductive healthcare service provision for all Kenyans and particularly women, children, intersex persons and other vulnerable community populations.
The petitioners also took issue with Clause 3.4.8 paragraph 7 on the premise that Linda Mama is not anchored in law; remains vulnerable to inadequate implementation and its financing is subject to political goodwill. In their view, the policy should address the Linda Mama Programme wholesomely as it is inadequate because the requirements for registration lock out those unable to prove citizenship, especially those who reside in marginalized and remote areas. The programme also locks out adolescents who may require critical reproductive healthcare services but do not have access to a guardian in a timely manner.
The petitioners asserted that provision of reproductive healthcare services relating to termination of pregnancy such as abortion and post abortion care is unclear since the policy uses a non-medical and non-scientific and inaccurate definition of abortion.
Regarding Clause 3.4.1 at paragraph 12, the petitioners asserted that the requirement that Health professionals terminate a pregnancy taking into account the health of both the mother and the unborn child is confusing and unclear especially on the definition of the term abortion. This may result in unwarranted barriers to women in need of abortion and post abortion care as it creates an environment of fear and ambiguity.
The petitioner maintained that clause 3.4.4 requiring that all pregnant women and their families be tested for HIV, the petitioner asserted that it may present a barrier to accessing comprehensive antenatal care services for patients who may fear seeking these services due to coercion. There is no mention of what reproductive health care interventions that children living with HIV should be afforded, particularly as they transition into adolescence and through to adulthood.
The petitioners contended that the procedure set out at Clause 3.4.12 paragraph 3 on intersex persons is ambiguous and unclear as it does not specify what professional body the intersex persons are required to present themselves before. Further, the policy direction does not envision a situation where an intersex person may have no desire to undergo transition and chooses to live as intersex throughout their lives. It was also contended that paragraph 5 introduces bureaucracy into the registration of children born with ambiguous genitalia by providing that these births be reported or notified to a government health facility. It does not also provide a solution to the systemic discrimination in registration of intersex persons at birth and creates further differentiation without justification.
The petitioners were of the view, that Clauses 3.4. 13 and 4.2.3.8 at paragraph 5 shun the role county governments play in promoting diversity by providing for the mainstreaming of reproductive health research.
Based on the above concerns, the petitioners sought the following reliefs:
A declaration do hereby issue that the process arrived at in developing the National Reproductive Health Policy 2022-2032 violated the right to meaningful public participation guaranteed in articles 10(1) & 10 (2) (a), 35 and 232 (1) (d) of the Constitution as read together with section 15 of the Health Act and the Public Service Commission Guidelines for Public Participation in Policy Making, 2015.
A declaration do hereby issue that the fundamental right to life and the right to the highest attainable standard of health including reproductive healthcare as envisaged by articles 26(1) and (4), 27, 35, 43 (1) (a), 53 (1) (c)of the Constitution as read together with section 34 (1) (a), 34 (2)(b) and 35 of the East African Community HIV Prevention and Management Act, 2012 and sections 5, 6, 7 and 68 of the Health Act, 2017 and section 5 of the Access to Information Act encompass access to sexual and reproductive health services, information and commodities for all Kenyans.
A declaration that the Reproductive Health Policy 2022-2032 violates the right to reproductive health as provided under articles 26 (4), 27, 35, 43 (1) (a), 53 (1) (c) of the Constitution as read together with section 21, 22, 34 (1) (a), 34 (2) (b) and 35 of the East African Community HIV Prevention and Management Act, 2012 and sections 5, 6, 7 and 68 of the Health Act, 2017 and section 5 of the Access to Information Act.
A declaration that the Reproductive Health Policy 2022-2023 violates the rights of children under article 53(1) (c) and (2), as read with section 16 (2) (3) and (4) of the Children Act in the manner it limits the provision of reproductive health interventions to adolescents.
A declaration do issue that the Reproductive Health Policy 2022-2032 violates article 33 on the right to freedom of expression, including academic freedom and freedom of scientific research as read with sections 6 and 7 of the Science and Technology Act, 2013.
A mandatory order do issue barring the respondents from implementing the Reproductive Health Policy 2022-2032 in so far as the same is contrary to the constitutional principle of public participation and a violation of article 10 (1) & 10(2) (a), 35 and 232 (1) (d) and restricts the right to health under article 43 (1)(a), 26 (4) and 53(1) (c) of the Constitution.
In addition to or in the alternative to prayer (vi), a mandatory order do issue suspending the implementation of clause 2.3.3, clause 2.3.7,clause 3.4.1 paragraph 12, clause 3.4.2, clause 3.4.4 paragraph 2, clause 3.4.8 paragraph 1, clause 3.4.8 paragraph 8, clause 3.4.11 paragraph 5 and 6, clause 3.4.12 paragraph 1,3 and 5, clause 3.4.13 paragraph 2, and clause 4.2.3.8 paragraph 5 of the Reproductive Health Policy 2022-2032 in so far those provisions violate the right to highest attainable standard of health under article 43 (1) (a), 26(4) and 53 (1) (c) of the Constitution.
A mandatory order do issue compelling the respondent to within 30 days of this order, review the National Reproductive Health Policy 2022-2032 and conduct this review together with the petitioners, relevant stakeholders and members of the public in order to consider all views of interested and affected parties.
A structural interdict do issue compelling the 1 st respondent to report back to this Honourable Court every 45 days to confirm compliance with order (viii) above.
The Honourable Court do issue any further orders, directions and remedies as it may deem fit and just in the circumstances.
There be no orders as to costs.
Responses
Respondents’ responses
The respondents opposed the petition through a replying affidavit sworn Dr. Patrick Amoth. The respondents stated that the Reproductive Health Policy developed in 2007 needed to be reviewed to align it with the changed legal framework and the Constitution, 2010. In line with its mandate in accordance the Ministry initiated a review of the policy in 2016 through a comprehensive public exercise, stakeholder engagement and existing laws and policies.
The respondents maintained that there was comprehensive public participation an cited as an example, the Council of Governors’ letter dated 11 th September 2020; the letter by the Cabinet Secretary for Health dated 4 th November 2020; the technical directive by the Ministry dated 19 th October 2020; a joint Reproductive Health Policy consultative meeting held at Lake Naivasha Resort on 20 th and 21 st November 2020 and a publication summit held from 20 th April to 25 th April 2022 at Pride Inn Flamingo, Mombasa.
It was the respondents’ position that the right to safe and legal abortion in exceptional circumstances is articulated in article 26(4) of the Constitution and a guiding framework is necessary to ensure access to safe abortion services provided by trained medical personnel.
The respondents maintained that decisions on sex and reproduction are complex and developmental competence is only attained well over the age of 21. It is therefore the role of policies to protect children before that maturity and competence is achieved. Moreover, policies facilitating liberal sex among or with children offend any rational science behind the promotion and protection of the health of a child or adolescent and facilitate the triple threat of HIV and sexually transmitted infections, premature childhood pregnancies and sexual abuse of children.
The respondents asserted that the petitioners’ desire to exclude parental consent on behalf of children is against section 16(1) of the Children Act, which provides that “ Every child shall have the right to the highest attainable standard of healthcare services in accordance with Article 43 of the Constitution: Provided that the provisions of reproductive health services to children shall be subject to the express consent of the parent or guardian.”
The respondents asserted that while there has been a push to include Comprehensive Sexuality Education in the policy, such a course would undermine the government’s desire to develop a culturally acceptable and competency-based age-appropriate education material on sexually reproductive health for minors.
The respondents maintained that the Policy extensively addresses universal unfettered access to quality post abortion care for all and enforces the right to quality healthcare without discrimination. The respondents denied the petitioners’ claim that there is discrimination in the provision of Assisted Reproductive Technology. According to the respondents, Assisted Reproductive Technology is a medical intervention for treating infertility. They maintained that they complied with the law in coming up with the policy.
1 st interested party’s response
Kenya Obstetrical Gynaecology Society, the 1 st interested party supported the petition through a replying affidavit sworn by its president Dr. Kireki Omanwa. The 1 st interested party asserted that it was not adequately involved in the drafting of the policy.
According to the 1 st interested party, the policy is incoherent and does not align itself with other critical policies aimed at strengthening reproductive health frameworks in Kenya, specifically- Kenya-AIDS Strategic Framework II 2020-2024; National Adolescent Sexual and Reproductive Health Policy-2015; Standards and Guidelines for Reducing Morbidity and mortality for unsafe Abortion in Kenya-2012; National Guidelines on Management of Sexual Violence-2014; National Guidelines for Provisions of Adolescent Youth-Friendly Services (YFS) in Kenya (2005); National AIDS and STI Control Program (NASCOP)and Adolescent Package of Care in Kenya; A Health Care Provider Guide to Adolescent Care (2014).
The 1 st interested party contended that the requirement for mandatory HIV/AIDS testing is not in line with the provisions of section 2 and 4 of the HIV and AIDS Prevention and Control Act, 2006; the National Guidelines for HIV Testing and Counselling in Kenya, Ministry of Public Health and Sanitation (2008); the National Guidelines for Management of Sexual Violence in Kenya 2014; the National Adolescent Sexual and Reproductive Policy 2015 and the National Guidelines for Provision of Adolescent and Youth Friendly Services in Kenya (2006).
Section 2 of HIV and AIDS Prevention and Control Act, 2006 is an interpretative section while section 4 requires the government to promote awareness about the causes, modes of transmission consequences, means of prevention and control through comprehensive nationwide education and information campaign through its various forums.
The 1 st interested party asserted that the policy makes limited or no reference to other legal frameworks and contradicts current policy positions. The policy does not make reference to article 26(4) of the Constitution which permits safe legal abortion under limited circumstances. The policy further fails to acknowledge the progressive pronouncements in the decision of Federation of Women Lawyers (Fida-Kenya) & 3 others v Attorney General & 2 others; East Africa Centre for Law & Justice & 6 others (Interested Party) & Women’s Link Worldwide & 2 others (Amicus Curiae) [2019] KEHC 6928 (KLR) and PAK and another v Attorney General & 3 others [2022] KEHC 262 (KLR).
The 1 st interested party further stated that the policy fails to differentiate between safe abortion and unsafe abortion and does not address the challenges of unsafe abortion in Kenya because of the uncertainty in health policies regarding when healthcare providers can legally provide abortion services. The policy does not also align itself with the Sexual Offences Act and the National Guidelines for Management of Sexual Violence in Kenya, 2014.
The 1 st interested party maintained that using consistent terminology in health policies is essential for clear and effective communication as well as ensuring that policies are properly and uniformly implemented across different settings. On the other hand, inconsistent terminologies lead to confusion, misunderstanding and inconsistencies in policy implementation with a negative impact on the health and well-being of individuals and communities.
The 1 st interested party urged for the removal of the definition of “Crisis” in the policy for being inaccurate, misinforming and not applicable within the parlance of reproductive health and maternal healthcare. The definition further contradicts the provisions of Article 8 of the Constitution.
According to the 1 st interested party, the policy restriction on access to sexual and reproductive health information for individuals under the age of 21 undermines the principle of confidential, independent healthcare access for young people. By limiting access to critical information and services, the policy fails to address the urgent needs of young people and instead increases their vulnerability to adverse health outcomes.
It was the 1 st interested party’s position that requiring parental involvement when youth seek sensitive healthcare services is counterproductive. The 1 st interested party was of the view, that as best practice, an adolescent with the unbiased scientifically accurate and evidence-based guidance of a trained health professional, be allowed to give consent for all types of healthcare and to have their confidentiality in the provision of that care, as it is essential that adolescents have access to confidential health care.
2 nd interested party’s response
The 2 nd interested party also supported the petition through a replying affidavit sworn by Christine Nkonge. The 2 nd interested party agreed with the petitioners that this court has jurisdiction to determine whether the policy is consistent with the Constitution; the 1 st respondent was required to consult county governments; the Policy limits the provision on reproductive healthcare interventions to adolescents; creates discrimination based on marital status; the provisions of reproductive fertility treatment to infertile couples restricts the provisions of fertility treatment to all persons and cervical cancer screening and reproductive health services to those above 21 years is discriminatory.
The 2 nd interested party further supported the petitioners’ position that information concerning reproductive health services is important information that affects individuals and the nation. Any information concerning the development of reproductive health service policies should have been proactively disclosed under article 35(3) of the Constitution and section 5 of the Access to Information Act. The 2 nd interested party also agreed that the policy violates freedom of expression, including academic freedom and freedom of scientific research.
3 rd interested party’s response
The 3 rd interested party on its part opposed the petition through a replying affidavit sworn by Dr. Wahome Ngare. The 3 rd interested party agreed with the respondents on the need to review the previous policy.
Regarding public participation, the 3 rd interested maintained that there was exhaustive public participation and had interacting with the draft policy in a technical meeting of retreat between 8 th -11 th October 2019 held in Naivasha. The meeting included medical experts in Paediatrics, Obstetrics and Gynaecology, the Ministry of Health technical departments, Community Service Organizations and international partners, among others.
In September 2020, the Council of Governors asked for more time and was requested to present l submissions from counties. The request for further extension of time was again accepted in November 2020. In the same month, the Ministry sought further public participation and engagements with Civil Society organizations and called for more submissions to improve the policy.
On 10 th November 2020, the Department of Health and Sanitation of Kisumu County summitted its memorandum on the Policy. Another meeting was called by the Council of Governors to include Members of Health Committee of the Council of Governors, Members of Health Committees of both Houses of Parliament was held on 28 th September 2021 at Enashipai Resort in Naivasha. The two levels of government held a joint consultative meeting over the policy at Lake Naivasha Resort on 20 th and 21 st November 2021.
On 2 nd February 2022, a meeting of Council Technical Officers took place. The Ministry led several consultative forums on the draft policy and engaged multiple stakeholders between 2020-2022. On 31 st March 2022, the Ministry invited reproductive health stakeholders and heads of civil societies involved in reproductive health to a meeting held on 6 th April 2022 at the Emory Hotel. A copy of the policy was also shared.
The 3 rd interested party was represented and participated in the meeting of 6 th April 2020 in which there emerged different schools of thoughts, the "Pro-life" and Pro-family group" and the "Sexual and Reproductive Health and Right" group.
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