REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 428 OF 2018
NETWORK FOR ADOLESCENTS
AND YOUTH OF AFRICA ……………………………………..1 ST PETITIONER
JACKLINE MARY KARANJA…………………………………2 ND PETITIONER
VERSUS
THE ATTORNEY GENERAL………………………………….1 ST RESPONDENT
THE CABINET SECRETARY,
MINISTRY OF HEALTH……………………………………..2 ND RESPONDENT
THE DIRECTOR OF MEDICAL SERVICES,
MINISTRY OF HEALTH……………………………………..3 RD RESPONDENT
THE KENYA MEDICAL PRACTITIONERS &
DENTISTS BOARD……………………………………………4 TH RESPONDENT
KENYA FILM CLASSIFICATION BOARD………………….5 TH RESPONDENT
AND
KENYA CONFERENCE OF
CATHOLIC BISHOPS (KCCB)………………………..1 ST INTERESTED PARTY
KENYA CHRISTIAN PROFESSIONALS
FORUM (KCPF)………………………………………2 ND INTERESTED PARTY
PEARLS AND TREASURES TRUST…………………..3 RD INTERESTED PARTY
REPRODUCTIVE HEALTH NETWORK……………..4 TH INTERESTED PARTY
FEDERATION OF WOMEN LAWYERS
(FIDA KENYA) ……………………………………….5 TH INTERESTED PARTY
KENYA LEGAL & ETHICAL ISSUES
NETWORK ON HIV & AIDS (KELIN)……………….6 TH INTERESTED PARTY
KENYA NATIONAL COMMISSION
ON HUMAN RIGHTS (KNHCR)……………………..7 TH INTERESTED PARTY
KENYA CATHOLIC DOCTORS ASSOCIATION…….8 TH INTERESTED PARTY
AND
WOMEN’S LINK WORLDWIDE………………………….1 ST AMICUS CURIAE
CENTRE FOR THE STUDY OF ADOLESCENCE…………2 ND AMICUS CURIAE
JUDGMENT
Background
1. In August 2018, Marie Stopes Kenya, (Marie Stopes), launched a nine-week public awareness campaign in conjunction with Radio Africa Group on the reproductive health services its institutions offered. The campaign sought to, among others, highlight statistics and dangers of unsafe abortion, abortion stigma and discrimination women and girls who had undergone unsafe abortion encountered.
2. On 11 th September 2018 the Chief Executive Officer of Kenya Film Classification Board, (Kenya Film) issued a press statement that it had banned the radio advertisements by Marie Stopes. The press statement was widely circulated by media houses and online platforms.
3. By letter dated 7 th September 2018 to Marie Stopes which was received on 2 nd October 2018, Film Kenya alleged that Marie Stopes was in contravention of the Programming Code for Free-to-Air Radio and Television Services in Kenya and proceeded to ban the advertisements on the public awareness campaign. A copy of the letter was sent to Radio Africa Group.
4. On 4 th October 2018, Radio Africa Group responded denying violating the Communication Authority of Kenya’s Programming Code for Free to Air Radio and Television Service. Radio Africa suggested that any complaints regarding the radio advertisement contents be addressed through the complaints’ mechanisms provided for in the Communication Authority of Kenya’s Procedure for Handling Complaints related to Broadcasts.
5. On 5 th November 2018 the CEO of the Medical Practitioners and Dentists Board (the Medical Board) wrote to Marie Stopes over various advertisements that continued to be broadcast through Radio Africa advocating for abortion, despite the ban by Film Kenya. The letter stated that the advertisements were in contravention of article 26 of the Constitution and the Medical Practitioners and Dentists (Advertising) Rules, 2016.
6. The Medical Board invited the Marie Stopes’ Country Director to appear before the Medical Board’s Preliminary Inquiry Committee (the Inquiry Committee) on 7 th November 2018 and to submit various reports before close of business on 6 th November 2018. A hearing thereafter took place before the Inquiry Committee on 7 th November 2018.
7. On 10 th November 2018, the Inquiry Committee issued a ruling against Marie Stopes in the matter of Ann Kioko v Marie Stopes Kenya. One of the orders, Marie Stopes was directed to immediately stop offering any form of abortion services in all its facilities in the country.
8. On 20 th November 2018, the Director of Medical Services sent a letter to Marie Stopes further banning Marie Stopes from providing any form of post abortion care in all its facilities.
The petition
9. The petitioners filed this petition challenging the decisions by Kenya Film, the Medical Board and Director of Medical Services. The petition was against the Attorney General, the Cabinet Secretary, Ministry of Health, the Director of Medical Services, Ministry of Health, the Medical Practitioners and Dentists Board and the Kenya Film as the 1 st to 5 th respondents.
10. Joined in the proceedings were Kenya Conference of Catholic Bishops), Kenya Christian Professionals Forum, Pearls and Treasures Trust, Reproductive Health Network, Federation of Women Lawyers (FIDA-Kenya), Kenya Legal & Ethical Issues Network on HIV & AIDS(KELIN), Kenya National Commission on Human Rights and Kenya Catholic Doctors Association as the 1 st to 8 th interested parties. Women’s Link Worldwide and Centre for the Study of Adolescence were joined as the 1 st and 2 nd amicus.
Petitioners’ case
11. The petitioners asserted that Kenya Film had no regulatory mandate over radio programming and broadcasting; that Marie Stopes being a Non-Governmental Organization (NGO), the Medical Board has no regulatory mandate or control over NGO’s and health facilities and the decision to ban Marie Stopes from providing any form of abortion services lacked any nexus with the allegations that were before the Inquiry Committee.
12. The petitioners were concerned with the constitutionality and legality of the ruling by the Medical Board, the effect of the letters by Kenya Film and the Director of Medical Services in curtailing provision of emergency medical treatment in the form of safe abortion and post abortion care to women and girls.
13. It is the petitioners’ case, that the actions by Kenya Film, the Medical Board and Director of Medical Services violated the provisions of articles 24 (1) and (3); 25(a), 26(4); 27; 29(d), (f); 35(1), (3); 43 (1) (a),(2); 47 and 232 of the Constitution; sections 4 (3), 5 of the Fair Administrative Actions Act; section 6 of the Health Act, 2017 as well as various international laws ratified by Kenya.
14. The petitioners asserted that the need for access to comprehensive reproductive health information and services for adolescents is important; media plays a vital role in bringing sexual health and rights issues to the forefront as a health and development issue and utilize media platforms to reach the target audience.
15. The petitioners stated that they were familiar with some of Marie Stopes programmes on radio and some of the contents generated through social media which were properly delivered in an accessible and acceptable way to young people.
16. The petitioners maintained that owing to several challenges they had identified with regard to the state of access to reproductive health information and services for adolescents, there was concern that the actions by Kenya Film and the Medical Board worsened the situation with the effect of violating rights of adolescents and teenage girls which is guaranteed under articles 24(3), 27, 33(1) (a), 35(1) and (3), 43 and 47 of the Constitution. The impugned actions were also not in line with the Ministry of Health National Adolescent Sexual and Reproductive Rights Policy, 2015.
17. The petitioners took the view, that Marie Stopes’ advertisements conformed with the National Guidelines for Provision of Youth Friendly Services Guidelines. The Ministry of Health has a responsibility to be proactive in providing comprehensive, scientific and age-appropriate reproductive health information devoid of moral, religious or other bias. Unavailability of comprehensive sexual and reproductive health information jeopardizes women and girls’ access to health services.
18. The petitioners asserted that the letter by the Director of Medical Services directing Marie Stopes Clinics not to provide post abortion care services violated the State’s obligation to ensure the right to life and to reduce women’s exposure to the risk of life-threatening injury and death from unsafe abortion. Negative publicity around Marie Stopes would have a negative impact on adolescents’ access to other services it offered.
19. The petitioners stated that they had encountered incidents of young girls and women who died after seeking unsafe abortion services from unqualified persons and failed to go to hospitals for immediate help to save their lives.
20. The challenge of unsafe abortion among young girls in informal settlements was worsened by the fact that there were few facilities that offer friendly reproductive health services to the youth, including post abortion care services. There is also lack of clarity on when abortion care is allowed within the legal framework which is precipitated by lack of information available particularly from public health facilities and their medical staff. This prevented eligible women and girls from accessing vital and lifesaving safe abortion care. It further prevents trained health care professional from providing these vital services for fear of stigma, intimidation, harassment, arrest and prosecution.
21. The cumulative effect of the ban regarding information on prevention of unsafe abortions and post abortion care services creates fear amongst healthcare workers resulting in hesitation to take appropriate and timely decisions on whether or not to provide safe and legal abortion services to those in need.
22. The petitioners maintained that the action by Kenya Film, the Medical Board and the Ministry prohibiting information on safe legal abortion and legal abortion services violates women’s and adolescent girls’ right to access comprehensive, accurate and evidence-based health related information. This forces them to resort to inaccurate information through informal sources thus, exposing them to severe health complications. The action further violates the right to highest attainable standard of health.
23. Unsafe abortion is a leading cause of maternal mortality and morbidity in Kenya due to the complications as demonstrated by the Ministry of Health’s Report on The Costs of Treating Unsafe Abortion Complications in Public Health Facilities in Kenya (February 2018).
24. It was the petitioners’ position, that complications arising from unsafe abortion such as haemorrhage and infections which are treatable with antibiotics along with evacuation of any remaining pregnancy tissue from the uterus ought to be treated immediately and as soon as possible as delays can be fatal. The Directive by Director of Medical Services that Marie Stopes refers patients in need of post abortion care violates section 7(2), (3) of the Health Act and the medical guidelines on the management of post abortion complications.
25. They maintained that a trained health professional has a professional, ethical and legal obligation to offer emergency care and assistance and stabilize any patient who presents herself to a medical facility exhibiting complications from unsafe abortion or is in need of post abortion care. The decision by the Director of Medical Services creates confusion in the medical service providers as well as women and girls seeking service at the facility on whether the intention of the Ministry is to ban all other services in the context of post abortion care, including family planning and counselling services. The directive contradicts the Ministry of Health regulations in the National Post Abortion Care Reference Manual (2013). The restrictions are unreasonable and violate article 26 (4) and 43 (1) & (2) of the Constitution.
26. The petitioners asserted that in the absence of a specific finding of unlawful conduct by a medical practitioner in the employment of Marie Stopes Clinic relating to the provisions of abortion services, the Medical Board and the Director of Medical Services have no legal basis to ban services offered by the facility.
27. The petitioners maintained that at the time the Medical Board made the decision, there were no statutory provisions conferring on it the mandate to license medical institutions or conduct disciplinary proceedings against medical institutions. The Medical Practitioners and Dentists (Private Medical Institutions) Rules, 2000 purporting to give the Medical Board powers beyond those granted by the Act are ultra vires the Act.
28. The petitioners urged that there was no complaint from any member of the public to the Medical Board against any media advertisements by Marie Stopes. The Medical Practitioners and Health Facilities (Advertising) Rules do not apply to Marie Stopes because it is not a registered health facility.
29. The petitioners asserted that the Medical Board is supervised by and answerable to the Ministry of Health; the Director of Medical Services having written to the Medical Board on 2 nd November 2018 to ensure Marie Stopes is closed, did not write a further letter on the 5 th November 2018 as alleged. They maintained that there was no correlation between the complaints allegedly received by Ministry of Health or the Medical Board and the action taken by the Medical Board and the Director of Medical Services in addressing the complaints.
30. Based on the above concerns, the petitioners sought several declarations and orders to invalidate the impugned actions as unconstitutional and illegal.
1 st , 2 nd and 3 rd respondents’ response
31. The 1 st , 2 nd and 3 rd respondents opposed the petition through a replying affidavit sworn by Dr. Patrick Amoth. These respondents asserted through Dr. Amoth, that the Ministry received complaints from members of the public regarding advertisements aired on radio about abortion services rendered at Marie Stopes’ clinics. By letter dated 5 th November 2018, the Ministry instructed the Medical Board to undertake an inquiry on the complaints, prepare and submit a report with recommendations to the Cabinet Secretary.
32. An inquiry was conducted by the Medical Board’s Inquiry Committee which established that Marie Stopes provided a wide range of medical services, including abortion services; undertook abortion guided by its own indicators and conducted a campaign program on sexual and reproductive health care through diverse forums and platforms. It was also established that the advertisements violated the provisions of the Medical Practitioners and Dentist (Practice and Health Facilities) (Advertising) Rules, 2016 and were not approved by the Ministry of Health.
33. The 1 st 2 nd and 3 rd respondents asserted that the right to the highest attainable standard of health, including the right to reproductive healthcare begins with the right to accurate information and is based on the right quality of healthcare service which were disregarded by Marie Stopes.
34. They stated that immediate action was taken on 20 th November 2018 when the Director of Medical Services issued the ban on the basis of article 43 (1) (a) and sections 14, 15, 16, 17 and 18 of the Health Act. The matter was further conclusively dealt with in an inquiry conducted by the Medical Board and disciplinary action taken. They maintained that the Ministry executed its mandate in accordance with the Constitution and the Health Act.
35. The 1 st , 2 nd and 3 rd respondents stated that the Ministry, has developed the National Reproductive Health Policy 2022-2032 as the overall guide to all stakeholders in the reproductive health sector and is the principal reference document in Reproductive Health matters.
4 th respondent’s response
36. The 4 th respondent also opposed the petition through a replying affidavit sworn by Dr. Jackson Kioko. The 4 th respondent contended that the Medical Board has the mandate to license and register medical and dental practitioners, license medical institutions and conduct disciplinary inquiries on complaints lodged against practitioners and medical institutions under the Medical Practitioners and Dentists Act.
37. The 4 th respondent asserted that under rules 6, 10 and 11 of the Medical Practitioners and Dentists (Private Medical Institutions) Rules, 2000, the Medical Board has power to regulate and grant licenses to private clinics and medical institutions; revoke licenses issued to those institutions and carry out inspections in the institutions. The 4 th respondent asserted that Marie Stopes’ Clinics are licensed and regulated by the Medical Board.
38. It was stated that the Medical Board received complaints concerning advertisements by Marie Stopes and petitions from Thomas Ireri and Ann Kioko requesting the Cabinet Secretary for Health to initiate investigations into the operations of Marie Stopes’ clinics.
39. The 4 th respondent contended that rules 3(1) and 5(1), (c), (g) of the Medical Practitioners and Dentists (Practitioners and Health Facilities) (Advertising) Rules, 2016 prohibit registered health institutions from directly or indirectly undertaking promotions which may be reasonably regarded as calculated to attract patients, clients for business except as provide for under the Act. Institutions are also prohibited from providing misleading information on the effectiveness of health services they offer.
40. According the 4 th respondent by a letter dated 5 th November 2018, the Medical Board was instructed to conduct an inquiry on the complaints and submit a report with recommendations to the Cabinet Secretary. On the same day, the Medical Board wrote to the Country Director of Marie Stopes and requested him to submit a comprehensive report addressing the allegations and a report of all procedures carried out in its facilities within the last three months. It also directed him to appear before the Inquiry Committee.
41. The 4 th respondent maintained that the Medical Board and the Inquiry Committee discharged their mandate within the law. The complainants and the Kenya Film were invited to participate in the inquiry. All parties that participated in the inquiry were accorded a hearing thus, the right to fair administrative action guaranteed under article 47 of the Constitution and the Fair Administrative Action Act was observed. The inquiry was conducted in compliance with the Medical Practitioners and Dentists Act and the rules.
42. The 4 th respondent asserted that Marie Stopes’ witnesses admitted during the inquiry to offering safe abortion services and undertaking a campaign program on sexual and reproductive health through various platforms and had submitted reports and documents on guidelines for safe abortion and post abortion care as well as data on the reproductive health services offered. The Inquiry Committee made a decision which was ratified by the full Board in a special Board meeting and the decision was communicated to Marie Stopes.
43. The 4 th respondent stated that there are over 10,000 registered health facilities in Kenya, including public, private and mission health facilities serving members of the public. The decision by the Inquiry Committee did not stop Marie Stopes from offering other health services save only to services relating to abortion, pending formulation of guidelines.
44. The 4 th respondent denied violating the Constitution, the law or fundamental rights and maintained that Marie Stopes was given a fair hearing. The Medical Board took action to ensure the right to health guaranteed under article 43 (1) is administered in compliance with article 26(4) of the Constitution.
45. The 4 th respondent stated that Marie Stopes had complied with the orders of the Inquiry Committee, the Medical Board undertook an inspection of the facilities and following that inspection, the order to cease offering post abortion care services was lifted.
5 th respondent’s response
46. The 5 th respondent opposed the petition through a replying affidavit sworn by Dr. Ezekiel Mutua. The 5 th respondent stated that the Board has mandate to, among others, regulate, examine, classify, approve and issue certificate of approval with respect to all films and broadcast content to be distributed, broadcast or exhibited privately or publicly either through cinemas, television, radio, internet or any other form of digital media.
47. The 5 th respondent asserted that regulation 19(1) (e) of the Kenya Information and Communications (Broadcasting) Regulations 2009, mandates Kenya Film to examine, classify and approve broadcasting content for purposes of imposing age restrictions. The 5 th respondent stated that although the Films Act and regulations are not clear on Kenya Films’ mandate on broadcast content over the radio, nothing precludes it from exercising its regulatory mandate over audio advertisements because classification for purposes of imposing age restriction focuses on content of the advertisements and not mode of distribution.
48. The 5 th respondent maintained that under section 3 of The Programming Code for Free -To-Air Radio and Television Services in Kenya the watershed period guidelines and the Classification guidelines prescribed by the Board apply to all programme and non-programme matters, including advertisements and infomercials.
49. According to the 5 th respondent, under the interpretation section of the Programming Code, any audio/sound advertisement that has been produced by act of sound recording, taking part in or arranging scenes or episodes, recording on cassette, disc or any other audio recording medium and designated for broadcasting for payment or other valuable consideration to a broadcaster with the intention of selling to listeners any product or service; or convincing listeners of a belief or course of action, person or organization promoting a product, service, belief, course of action, person or organization through radio, television or other forms of digital media is an advertisements in the context of the Films Act for purposes of classification and imposing restrictions.
50. The 5 th respondent further stated that pursuant to regulations 33 and 34 of the Kenya Information and Communications (Broadcasting) Regulations, 2009, Kenya Film has mandate to give consumers advice, having regard to the protection of women and children against sexual exploitation and degradation in cinematography films, broadcasting content and on the internet. It has a duty to ensure that unsuitable content for children is not broadcast in the presence of children or during watershed periods.
51. According to the 5 th respondent, following several complaints from the public and after investigations, it discovered that Marie Stopes was broadcasting radio advertisements and running a campaign on radio intended to promote abortion services. Some parts of the advertisements contained claims and descriptions that were directly or indirectly misleading to the public regarding abortion services advertised as suitable alternative to pregnant women and girls.
52. Since Marie Stopes generated the audio content and paid the broadcaster to broadcast the advertisements, it amounted to distribution under the Films Act and, therefore, fell within its regulatory mandate. The 5 th respondent had an obligation to ensure that the advertisements complied with the law prior to being advertised upon examination, classification and approval.
53. The advertisements were intended for adult consumption, yet they were aired during watershed period (between 5:00am and 10:00pm) when young children were likely to be listening to radio broadcasting thus, it exposed children to unsuitable content.
54. The 5 th respondent stated that on 7 th September 2018, it wrote to Marie Stopes concerning the radio advertisements and directed them to stop airing those advertisements during watershed period and to submit the advertisements for examination and classification. The directives were also issued to Radio Africa Group. Due to public outcry and several complaints, on 11 th November 2018, it issued a press statement banning the advertisements because the directives had not been complied with.
55. On 2 nd October 2018 and 4 th October 2018, Marie Stopes and Radio Africa Group admitted broadcasting the impugned advertisements during watershed period. Radio Africa Group however denied jurisdiction of the Board to monitor, examine, classify and approve audio/sound commercial advertisements. Marie Stopes continued with advertisements during watershed period. The Medical Board’s Inquiry Committee conducted the inquiry in compliance with article 47 of the Constitution and delivered its decision.
56. According to the 5 th respondent, the decision to issue the press statement on 11 th September 2018 was necessitated by the need to preserve the Constitution and protect society, particularly children and girls below the age of 18 years from misleading, indecent and harmful advertisements promoting abortion as the most suitable alternative to unplanned and unwanted pregnancies. The 5 th respondent maintained that it lawfully exercised its statutorily mandate and denied violating any constitutional rights.
57. The 5 th respondent maintained that the petitioners’ right to access, receive, impart and disseminate information on abortion services through the impugned advertisements is subject to the State’s obligation to protect the interest of children by examining and classifying any broadcast content for purposes of imposing age restrictions prior to broadcasting.
1 st interested party’s case
58. The 1 st interested party opposed the petition through a replying affidavit sworn by Fr. Daniel Rono. The 1 st interested party asserted that the directives by the 3 rd , 4 th and 5 th respondents were in conformity with the Bill of Rights.
59. The 1 st interested party asserted that the petition seeks to have abortion offered on demand as opposed to the specific grounds in article 26(4) of the Constitution. According to the 1 st interested party, article 26(4) read with section 159 of the Penal Code, the decision whether or not to perform an abortion is that of a trained health professional.
60. The 1 st interested party maintained that the right to life is a fundamental right and any arbitrary denial of the unborn child the right to life by promoters of abortion on demand violates the right to access other human rights which amounts to cruel, inhuman and degrading treatment contrary to article 25(a) of the Constitution. The unborn child is also discriminated against on the basis of the environment in which it finds itself contrary to article 27 of the Constitution.
61. According to the 1 st interested party, the right to information includes the right of women and girls to receive objective and unbiased information with regard to abortion procedures and foetal development. The information in the advertisements was misleading to the extent that it created the general presumption that abortion on demand is acceptable and available in Kenya. The right to life of the unborn child faces an imminent threat of being grossly violated if the petition is allowed.
2 nd and 3 rd interested party’s case
62. The 2 nd and 3 rd interested parties also opposed the petition through an affidavit sworn by Dr. Wahome Ngare. They stated through Dr. Ngare, that the terms “unwanted”, “unintended”, “mistimed”, cannot be applied in situations where pregnancy arises from consensual sexual intimacy between persons competent to give consent because pregnancy is a natural outcome of sexual intimacy.
63. The 2 nd and 3 rd interested parties asserted that the right of the man and woman to reproductive health service of controlling their fertility, to decide whether to have children, the number and spacing of the children as well as the right to choose any method of contraception accrue before pregnancy. Once pregnancy is established, the man and woman have no right to kill the unborn child.
64. The 2 nd and 3 rd interested parties cited articles 19(2), (3) (a); 28; 29; 43(1) (a), (2) and 53 (1) of the Constitution for the position that the unborn child has a right to life, right to the highest attainable standard of healthcare, inherent dignity, right not to be subjected to violence, torture, treated or punished in a cruel, inhuman or degrading manner, right to be protected from all forms of violence, inhuman treatment and punishment and parental care and protection.
65. They posited that under article 35 (1) of the Constitution, every child has a right to know their father and mother and that article 26(4) of the Constitution prohibits abortion or induced termination of pregnancy unless in the opinion of a trained health professional. it is necessary. The calibre and skills of the person making the decision to induce termination of pregnancy must be such that they are trained to the highest level of proficiency in decision making to ensure that the mother and unborn child get the highest attainable standard of health.
66. The choice of the location where induced termination of pregnancy should be conducted is dictated by the environment meeting the minimum medical standards to ensure the mother and unborn child receive the highest attainable standard of health care.
67. The 2 nd and 3 rd interested parties maintained that the opinion of the mother and/or man that a pregnancy they view as a crisis is unwanted, unintended or mistimed is not the same as the professional opinion referred to in article 26(4) of the Constitution and cannot be the basis for induced termination of pregnancy. A trained health professional relying on the personal opinion of a mother or a man that a pregnancy is unwanted, unintended or mistimed to induce termination of a pregnancy, is offering termination of pregnancy on demand which is and unconstitutional.
68. The 2 nd and 3 rd interested parties asserted that under article 26(4) of the C
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 428 OF 2018
NETWORK FOR ADOLESCENTS
AND YOUTH OF AFRICA ……………………………………..1 ST PETITIONER
JACKLINE MARY KARANJA…………………………………2 ND PETITIONER
VERSUS
THE ATTORNEY GENERAL………………………………….1 ST RESPONDENT
THE CABINET SECRETARY,
MINISTRY OF HEALTH……………………………………..2 ND RESPONDENT
THE DIRECTOR OF MEDICAL SERVICES,
MINISTRY OF HEALTH……………………………………..3 RD RESPONDENT
THE KENYA MEDICAL PRACTITIONERS &
DENTISTS BOARD……………………………………………4 TH RESPONDENT
KENYA FILM CLASSIFICATION BOARD………………….5 TH RESPONDENT
AND
KENYA CONFERENCE OF
CATHOLIC BISHOPS (KCCB)………………………..1 ST INTERESTED PARTY
KENYA CHRISTIAN PROFESSIONALS
FORUM (KCPF)………………………………………2 ND INTERESTED PARTY
PEARLS AND TREASURES TRUST…………………..3 RD INTERESTED PARTY
REPRODUCTIVE HEALTH NETWORK……………..4 TH INTERESTED PARTY
FEDERATION OF WOMEN LAWYERS
(FIDA KENYA) ……………………………………….5 TH INTERESTED PARTY
KENYA LEGAL & ETHICAL ISSUES
NETWORK ON HIV & AIDS (KELIN)……………….6 TH INTERESTED PARTY
KENYA NATIONAL COMMISSION
ON HUMAN RIGHTS (KNHCR)……………………..7 TH INTERESTED PARTY
KENYA CATHOLIC DOCTORS ASSOCIATION…….8 TH INTERESTED PARTY
AND
WOMEN’S LINK WORLDWIDE………………………….1 ST AMICUS CURIAE
CENTRE FOR THE STUDY OF ADOLESCENCE…………2 ND AMICUS CURIAE
JUDGMENT
Background
1. In August 2018, Marie Stopes Kenya, (Marie Stopes), launched a nine-week public awareness campaign in conjunction with Radio Africa Group on the reproductive health services its institutions offered. The campaign sought to, among others, highlight statistics and dangers of unsafe abortion, abortion stigma and discrimination women and girls who had undergone unsafe abortion encountered.
2. On 11 th September 2018 the Chief Executive Officer of Kenya Film Classification Board, (Kenya Film) issued a press statement that it had banned the radio advertisements by Marie Stopes. The press statement was widely circulated by media houses and online platforms.
3. By letter dated 7 th September 2018 to Marie Stopes which was received on 2 nd October 2018, Film Kenya alleged that Marie Stopes was in contravention of the Programming Code for Free-to-Air Radio and Television Services in Kenya and proceeded to ban the advertisements on the public awareness campaign. A copy of the letter was sent to Radio Africa Group.
4. On 4 th October 2018, Radio Africa Group responded denying violating the Communication Authority of Kenya’s Programming Code for Free to Air Radio and Television Service. Radio Africa suggested that any complaints regarding the radio advertisement contents be addressed through the complaints’ mechanisms provided for in the Communication Authority of Kenya’s Procedure for Handling Complaints related to Broadcasts.
5. On 5 th November 2018 the CEO of the Medical Practitioners and Dentists Board (the Medical Board) wrote to Marie Stopes over various advertisements that continued to be broadcast through Radio Africa advocating for abortion, despite the ban by Film Kenya. The letter stated that the advertisements were in contravention of article 26 of the Constitution and the Medical Practitioners and Dentists (Advertising) Rules, 2016.
6. The Medical Board invited the Marie Stopes’ Country Director to appear before the Medical Board’s Preliminary Inquiry Committee (the Inquiry Committee) on 7 th November 2018 and to submit various reports before close of business on 6 th November 2018. A hearing thereafter took place before the Inquiry Committee on 7 th November 2018.
7. On 10 th November 2018, the Inquiry Committee issued a ruling against Marie Stopes in the matter of Ann Kioko v Marie Stopes Kenya. One of the orders, Marie Stopes was directed to immediately stop offering any form of abortion services in all its facilities in the country.
8. On 20 th November 2018, the Director of Medical Services sent a letter to Marie Stopes further banning Marie Stopes from providing any form of post abortion care in all its facilities.
The petition
9. The petitioners filed this petition challenging the decisions by Kenya Film, the Medical Board and Director of Medical Services. The petition was against the Attorney General, the Cabinet Secretary, Ministry of Health, the Director of Medical Services, Ministry of Health, the Medical Practitioners and Dentists Board and the Kenya Film as the 1 st to 5 th respondents.
10. Joined in the proceedings were Kenya Conference of Catholic Bishops), Kenya Christian Professionals Forum, Pearls and Treasures Trust, Reproductive Health Network, Federation of Women Lawyers (FIDA-Kenya), Kenya Legal & Ethical Issues Network on HIV & AIDS(KELIN), Kenya National Commission on Human Rights and Kenya Catholic Doctors Association as the 1 st to 8 th interested parties. Women’s Link Worldwide and Centre for the Study of Adolescence were joined as the 1 st and 2 nd amicus.
Petitioners’ case
11. The petitioners asserted that Kenya Film had no regulatory mandate over radio programming and broadcasting; that Marie Stopes being a Non-Governmental Organization (NGO), the Medical Board has no regulatory mandate or control over NGO’s and health facilities and the decision to ban Marie Stopes from providing any form of abortion services lacked any nexus with the allegations that were before the Inquiry Committee.
12. The petitioners were concerned with the constitutionality and legality of the ruling by the Medical Board, the effect of the letters by Kenya Film and the Director of Medical Services in curtailing provision of emergency medical treatment in the form of safe abortion and post abortion care to women and girls.
13. It is the petitioners’ case, that the actions by Kenya Film, the Medical Board and Director of Medical Services violated the provisions of articles 24 (1) and (3); 25(a), 26(4); 27; 29(d), (f); 35(1), (3); 43 (1) (a),(2); 47 and 232 of the Constitution; sections 4 (3), 5 of the Fair Administrative Actions Act; section 6 of the Health Act, 2017 as well as various international laws ratified by Kenya.
14. The petitioners asserted that the need for access to comprehensive reproductive health information and services for adolescents is important; media plays a vital role in bringing sexual health and rights issues to the forefront as a health and development issue and utilize media platforms to reach the target audience.
15. The petitioners stated that they were familiar with some of Marie Stopes programmes on radio and some of the contents generated through social media which were properly delivered in an accessible and acceptable way to young people.
16. The petitioners maintained that owing to several challenges they had identified with regard to the state of access to reproductive health information and services for adolescents, there was concern that the actions by Kenya Film and the Medical Board worsened the situation with the effect of violating rights of adolescents and teenage girls which is guaranteed under articles 24(3), 27, 33(1) (a), 35(1) and (3), 43 and 47 of the Constitution. The impugned actions were also not in line with the Ministry of Health National Adolescent Sexual and Reproductive Rights Policy, 2015.
17. The petitioners took the view, that Marie Stopes’ advertisements conformed with the National Guidelines for Provision of Youth Friendly Services Guidelines. The Ministry of Health has a responsibility to be proactive in providing comprehensive, scientific and age-appropriate reproductive health information devoid of moral, religious or other bias. Unavailability of comprehensive sexual and reproductive health information jeopardizes women and girls’ access to health services.
18. The petitioners asserted that the letter by the Director of Medical Services directing Marie Stopes Clinics not to provide post abortion care services violated the State’s obligation to ensure the right to life and to reduce women’s exposure to the risk of life-threatening injury and death from unsafe abortion. Negative publicity around Marie Stopes would have a negative impact on adolescents’ access to other services it offered.
19. The petitioners stated that they had encountered incidents of young girls and women who died after seeking unsafe abortion services from unqualified persons and failed to go to hospitals for immediate help to save their lives.
20. The challenge of unsafe abortion among young girls in informal settlements was worsened by the fact that there were few facilities that offer friendly reproductive health services to the youth, including post abortion care services. There is also lack of clarity on when abortion care is allowed within the legal framework which is precipitated by lack of information available particularly from public health facilities and their medical staff. This prevented eligible women and girls from accessing vital and lifesaving safe abortion care. It further prevents trained health care professional from providing these vital services for fear of stigma, intimidation, harassment, arrest and prosecution.
21. The cumulative effect of the ban regarding information on prevention of unsafe abortions and post abortion care services creates fear amongst healthcare workers resulting in hesitation to take appropriate and timely decisions on whether or not to provide safe and legal abortion services to those in need.
22. The petitioners maintained that the action by Kenya Film, the Medical Board and the Ministry prohibiting information on safe legal abortion and legal abortion services violates women’s and adolescent girls’ right to access comprehensive, accurate and evidence-based health related information. This forces them to resort to inaccurate information through informal sources thus, exposing them to severe health complications. The action further violates the right to highest attainable standard of health.
23. Unsafe abortion is a leading cause of maternal mortality and morbidity in Kenya due to the complications as demonstrated by the Ministry of Health’s Report on The Costs of Treating Unsafe Abortion Complications in Public Health Facilities in Kenya (February 2018).
24. It was the petitioners’ position, that complications arising from unsafe abortion such as haemorrhage and infections which are treatable with antibiotics along with evacuation of any remaining pregnancy tissue from the uterus ought to be treated immediately and as soon as possible as delays can be fatal. The Directive by Director of Medical Services that Marie Stopes refers patients in need of post abortion care violates section 7(2), (3) of the Health Act and the medical guidelines on the management of post abortion complications.
25. They maintained that a trained health professional has a professional, ethical and legal obligation to offer emergency care and assistance and stabilize any patient who presents herself to a medical facility exhibiting complications from unsafe abortion or is in need of post abortion care. The decision by the Director of Medical Services creates confusion in the medical service providers as well as women and girls seeking service at the facility on whether the intention of the Ministry is to ban all other services in the context of post abortion care, including family planning and counselling services. The directive contradicts the Ministry of Health regulations in the National Post Abortion Care Reference Manual (2013). The restrictions are unreasonable and violate article 26 (4) and 43 (1) & (2) of the Constitution.
26. The petitioners asserted that in the absence of a specific finding of unlawful conduct by a medical practitioner in the employment of Marie Stopes Clinic relating to the provisions of abortion services, the Medical Board and the Director of Medical Services have no legal basis to ban services offered by the facility.
27. The petitioners maintained that at the time the Medical Board made the decision, there were no statutory provisions conferring on it the mandate to license medical institutions or conduct disciplinary proceedings against medical institutions. The Medical Practitioners and Dentists (Private Medical Institutions) Rules, 2000 purporting to give the Medical Board powers beyond those granted by the Act are ultra vires the Act.
28. The petitioners urged that there was no complaint from any member of the public to the Medical Board against any media advertisements by Marie Stopes. The Medical Practitioners and Health Facilities (Advertising) Rules do not apply to Marie Stopes because it is not a registered health facility.
29. The petitioners asserted that the Medical Board is supervised by and answerable to the Ministry of Health; the Director of Medical Services having written to the Medical Board on 2 nd November 2018 to ensure Marie Stopes is closed, did not write a further letter on the 5 th November 2018 as alleged. They maintained that there was no correlation between the complaints allegedly received by Ministry of Health or the Medical Board and the action taken by the Medical Board and the Director of Medical Services in addressing the complaints.
30. Based on the above concerns, the petitioners sought several declarations and orders to invalidate the impugned actions as unconstitutional and illegal.
1 st , 2 nd and 3 rd respondents’ response
31. The 1 st , 2 nd and 3 rd respondents opposed the petition through a replying affidavit sworn by Dr. Patrick Amoth. These respondents asserted through Dr. Amoth, that the Ministry received complaints from members of the public regarding advertisements aired on radio about abortion services rendered at Marie Stopes’ clinics. By letter dated 5 th November 2018, the Ministry instructed the Medical Board to undertake an inquiry on the complaints, prepare and submit a report with recommendations to the Cabinet Secretary.
32. An inquiry was conducted by the Medical Board’s Inquiry Committee which established that Marie Stopes provided a wide range of medical services, including abortion services; undertook abortion guided by its own indicators and conducted a campaign program on sexual and reproductive health care through diverse forums and platforms. It was also established that the advertisements violated the provisions of the Medical Practitioners and Dentist (Practice and Health Facilities) (Advertising) Rules, 2016 and were not approved by the Ministry of Health.
33. The 1 st 2 nd and 3 rd respondents asserted that the right to the highest attainable standard of health, including the right to reproductive healthcare begins with the right to accurate information and is based on the right quality of healthcare service which were disregarded by Marie Stopes.
34. They stated that immediate action was taken on 20 th November 2018 when the Director of Medical Services issued the ban on the basis of article 43 (1) (a) and sections 14, 15, 16, 17 and 18 of the Health Act. The matter was further conclusively dealt with in an inquiry conducted by the Medical Board and disciplinary action taken. They maintained that the Ministry executed its mandate in accordance with the Constitution and the Health Act.
35. The 1 st , 2 nd and 3 rd respondents stated that the Ministry, has developed the National Reproductive Health Policy 2022-2032 as the overall guide to all stakeholders in the reproductive health sector and is the principal reference document in Reproductive Health matters.
4 th respondent’s response
36. The 4 th respondent also opposed the petition through a replying affidavit sworn by Dr. Jackson Kioko. The 4 th respondent contended that the Medical Board has the mandate to license and register medical and dental practitioners, license medical institutions and conduct disciplinary inquiries on complaints lodged against practitioners and medical institutions under the Medical Practitioners and Dentists Act.
37. The 4 th respondent asserted that under rules 6, 10 and 11 of the Medical Practitioners and Dentists (Private Medical Institutions) Rules, 2000, the Medical Board has power to regulate and grant licenses to private clinics and medical institutions; revoke licenses issued to those institutions and carry out inspections in the institutions. The 4 th respondent asserted that Marie Stopes’ Clinics are licensed and regulated by the Medical Board.
38. It was stated that the Medical Board received complaints concerning advertisements by Marie Stopes and petitions from Thomas Ireri and Ann Kioko requesting the Cabinet Secretary for Health to initiate investigations into the operations of Marie Stopes’ clinics.
39. The 4 th respondent contended that rules 3(1) and 5(1), (c), (g) of the Medical Practitioners and Dentists (Practitioners and Health Facilities) (Advertising) Rules, 2016 prohibit registered health institutions from directly or indirectly undertaking promotions which may be reasonably regarded as calculated to attract patients, clients for business except as provide for under the Act. Institutions are also prohibited from providing misleading information on the effectiveness of health services they offer.
40. According the 4 th respondent by a letter dated 5 th November 2018, the Medical Board was instructed to conduct an inquiry on the complaints and submit a report with recommendations to the Cabinet Secretary. On the same day, the Medical Board wrote to the Country Director of Marie Stopes and requested him to submit a comprehensive report addressing the allegations and a report of all procedures carried out in its facilities within the last three months. It also directed him to appear before the Inquiry Committee.
41. The 4 th respondent maintained that the Medical Board and the Inquiry Committee discharged their mandate within the law. The complainants and the Kenya Film were invited to participate in the inquiry. All parties that participated in the inquiry were accorded a hearing thus, the right to fair administrative action guaranteed under article 47 of the Constitution and the Fair Administrative Action Act was observed. The inquiry was conducted in compliance with the Medical Practitioners and Dentists Act and the rules.
42. The 4 th respondent asserted that Marie Stopes’ witnesses admitted during the inquiry to offering safe abortion services and undertaking a campaign program on sexual and reproductive health through various platforms and had submitted reports and documents on guidelines for safe abortion and post abortion care as well as data on the reproductive health services offered. The Inquiry Committee made a decision which was ratified by the full Board in a special Board meeting and the decision was communicated to Marie Stopes.
43. The 4 th respondent stated that there are over 10,000 registered health facilities in Kenya, including public, private and mission health facilities serving members of the public. The decision by the Inquiry Committee did not stop Marie Stopes from offering other health services save only to services relating to abortion, pending formulation of guidelines.
44. The 4 th respondent denied violating the Constitution, the law or fundamental rights and maintained that Marie Stopes was given a fair hearing. The Medical Board took action to ensure the right to health guaranteed under article 43 (1) is administered in compliance with article 26(4) of the Constitution.
45. The 4 th respondent stated that Marie Stopes had complied with the orders of the Inquiry Committee, the Medical Board undertook an inspection of the facilities and following that inspection, the order to cease offering post abortion care services was lifted.
5 th respondent’s response
46. The 5 th respondent opposed the petition through a replying affidavit sworn by Dr. Ezekiel Mutua. The 5 th respondent stated that the Board has mandate to, among others, regulate, examine, classify, approve and issue certificate of approval with respect to all films and broadcast content to be distributed, broadcast or exhibited privately or publicly either through cinemas, television, radio, internet or any other form of digital media.
47. The 5 th respondent asserted that regulation 19(1) (e) of the Kenya Information and Communications (Broadcasting) Regulations 2009, mandates Kenya Film to examine, classify and approve broadcasting content for purposes of imposing age restrictions. The 5 th respondent stated that although the Films Act and regulations are not clear on Kenya Films’ mandate on broadcast content over the radio, nothing precludes it from exercising its regulatory mandate over audio advertisements because classification for purposes of imposing age restriction focuses on content of the advertisements and not mode of distribution.
48. The 5 th respondent maintained that under section 3 of The Programming Code for Free -To-Air Radio and Television Services in Kenya the watershed period guidelines and the Classification guidelines prescribed by the Board apply to all programme and non-programme matters, including advertisements and infomercials.
49. According to the 5 th respondent, under the interpretation section of the Programming Code, any audio/sound advertisement that has been produced by act of sound recording, taking part in or arranging scenes or episodes, recording on cassette, disc or any other audio recording medium and designated for broadcasting for payment or other valuable consideration to a broadcaster with the intention of selling to listeners any product or service; or convincing listeners of a belief or course of action, person or organization promoting a product, service, belief, course of action, person or organization through radio, television or other forms of digital media is an advertisements in the context of the Films Act for purposes of classification and imposing restrictions.
50. The 5 th respondent further stated that pursuant to regulations 33 and 34 of the Kenya Information and Communications (Broadcasting) Regulations, 2009, Kenya Film has mandate to give consumers advice, having regard to the protection of women and children against sexual exploitation and degradation in cinematography films, broadcasting content and on the internet. It has a duty to ensure that unsuitable content for children is not broadcast in the presence of children or during watershed periods.
51. According to the 5 th respondent, following several complaints from the public and after investigations, it discovered that Marie Stopes was broadcasting radio advertisements and running a campaign on radio intended to promote abortion services. Some parts of the advertisements contained claims and descriptions that were directly or indirectly misleading to the public regarding abortion services advertised as suitable alternative to pregnant women and girls.
52. Since Marie Stopes generated the audio content and paid the broadcaster to broadcast the advertisements, it amounted to distribution under the Films Act and, therefore, fell within its regulatory mandate. The 5 th respondent had an obligation to ensure that the advertisements complied with the law prior to being advertised upon examination, classification and approval.
53. The advertisements were intended for adult consumption, yet they were aired during watershed period (between 5:00am and 10:00pm) when young children were likely to be listening to radio broadcasting thus, it exposed children to unsuitable content.
54. The 5 th respondent stated that on 7 th September 2018, it wrote to Marie Stopes concerning the radio advertisements and directed them to stop airing those advertisements during watershed period and to submit the advertisements for examination and classification. The directives were also issued to Radio Africa Group. Due to public outcry and several complaints, on 11 th November 2018, it issued a press statement banning the advertisements because the directives had not been complied with.
55. On 2 nd October 2018 and 4 th October 2018, Marie Stopes and Radio Africa Group admitted broadcasting the impugned advertisements during watershed period. Radio Africa Group however denied jurisdiction of the Board to monitor, examine, classify and approve audio/sound commercial advertisements. Marie Stopes continued with advertisements during watershed period. The Medical Board’s Inquiry Committee conducted the inquiry in compliance with article 47 of the Constitution and delivered its decision.
56. According to the 5 th respondent, the decision to issue the press statement on 11 th September 2018 was necessitated by the need to preserve the Constitution and protect society, particularly children and girls below the age of 18 years from misleading, indecent and harmful advertisements promoting abortion as the most suitable alternative to unplanned and unwanted pregnancies. The 5 th respondent maintained that it lawfully exercised its statutorily mandate and denied violating any constitutional rights.
57. The 5 th respondent maintained that the petitioners’ right to access, receive, impart and disseminate information on abortion services through the impugned advertisements is subject to the State’s obligation to protect the interest of children by examining and classifying any broadcast content for purposes of imposing age restrictions prior to broadcasting.
1 st interested party’s case
58. The 1 st interested party opposed the petition through a replying affidavit sworn by Fr. Daniel Rono. The 1 st interested party asserted that the directives by the 3 rd , 4 th and 5 th respondents were in conformity with the Bill of Rights.
59. The 1 st interested party asserted that the petition seeks to have abortion offered on demand as opposed to the specific grounds in article 26(4) of the Constitution. According to the 1 st interested party, article 26(4) read with section 159 of the Penal Code, the decision whether or not to perform an abortion is that of a trained health professional.
60. The 1 st interested party maintained that the right to life is a fundamental right and any arbitrary denial of the unborn child the right to life by promoters of abortion on demand violates the right to access other human rights which amounts to cruel, inhuman and degrading treatment contrary to article 25(a) of the Constitution. The unborn child is also discriminated against on the basis of the environment in which it finds itself contrary to article 27 of the Constitution.
61. According to the 1 st interested party, the right to information includes the right of women and girls to receive objective and unbiased information with regard to abortion procedures and foetal development. The information in the advertisements was misleading to the extent that it created the general presumption that abortion on demand is acceptable and available in Kenya. The right to life of the unborn child faces an imminent threat of being grossly violated if the petition is allowed.
2 nd and 3 rd interested party’s case
62. The 2 nd and 3 rd interested parties also opposed the petition through an affidavit sworn by Dr. Wahome Ngare. They stated through Dr. Ngare, that the terms “unwanted”, “unintended”, “mistimed”, cannot be applied in situations where pregnancy arises from consensual sexual intimacy between persons competent to give consent because pregnancy is a natural outcome of sexual intimacy.
63. The 2 nd and 3 rd interested parties asserted that the right of the man and woman to reproductive health service of controlling their fertility, to decide whether to have children, the number and spacing of the children as well as the right to choose any method of contraception accrue before pregnancy. Once pregnancy is established, the man and woman have no right to kill the unborn child.
64. The 2 nd and 3 rd interested parties cited articles 19(2), (3) (a); 28; 29; 43(1) (a), (2) and 53 (1) of the Constitution for the position that the unborn child has a right to life, right to the highest attainable standard of healthcare, inherent dignity, right not to be subjected to violence, torture, treated or punished in a cruel, inhuman or degrading manner, right to be protected from all forms of violence, inhuman treatment and punishment and parental care and protection.
65. They posited that under article 35 (1) of the Constitution, every child has a right to know their father and mother and that article 26(4) of the Constitution prohibits abortion or induced termination of pregnancy unless in the opinion of a trained health professional. it is necessary. The calibre and skills of the person making the decision to induce termination of pregnancy must be such that they are trained to the highest level of proficiency in decision making to ensure that the mother and unborn child get the highest attainable standard of health.
66. The choice of the location where induced termination of pregnancy should be conducted is dictated by the environment meeting the minimum medical standards to ensure the mother and unborn child receive the highest attainable standard of health care.
67. The 2 nd and 3 rd interested parties maintained that the opinion of the mother and/or man that a pregnancy they view as a crisis is unwanted, unintended or mistimed is not the same as the professional opinion referred to in article 26(4) of the Constitution and cannot be the basis for induced termination of pregnancy. A trained health professional relying on the personal opinion of a mother or a man that a pregnancy is unwanted, unintended or mistimed to induce termination of a pregnancy, is offering termination of pregnancy on demand which is and unconstitutional.
68. The 2 nd and 3 rd interested parties asserted that under article 26(4) of the C
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