Implementing the Reproductive health Provisions of the Kenya Constitution

1. Implementing the Reproductive health Provisions of the Kenya Constitution The Role of the Medical Fraternity Presented at the Kenya Medical Association Scientific Conference Merica Hotel,Nakuru, April 27- 30, 2011 by Professor JKG Mati Mua Hills, Machakos

2. Outline of Presentation • Introduction • Scope of roles of Medical Fraternity • Implications of Art.26(4) to provision of safe abortion services • Questions arising from Art 26(4) • Access barriers to legal safe abortion • Time for a paradigm shift • Conclusions

3. Provisions in Art 43 (1) of the Constitution of Kenya Every person has the right— (a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care; (b) to accessible and adequate housing, and to reasonable standards of sanitation; (c) to be free from hunger, and to have adequate food of acceptable quality; (d) to clean and safe water in adequate quantities; (e) to social security; and (f) to education.

4. Other constitutional guarantees that are relevant to health care, (besides Article 43 (1) (a) • Commitment to nurturing and protecting the well-being of the individual, the family, communities and the nation (Preamble). • Implementation of international/regional conventions and commitments (Art. 2 (6)) • Respect and protection of dignity for every person (Article 28) • Equality and freedom from discrimination (Article 27) • Emergency medical treatment (Article 43 (2))

5. Health Professionals at all levels have key roles to play in implementation of health provisions in the Kenya Constitution: These roles include: • Guiding making and/or updating of laws and policies to reflect new provisions • Defining and/or interpreting provisions w.r.t. improved access to quality health care • Ensuring health planning and provision observe principles enshrined in Constitution: human rights, equality, equity, dignity and freedom from discrimination.

6. Health policies and strategies Need to review/update current policies and strategies to reflect constitutional provisions related to RH, these include: • National Health Sector Strategic Plans • National RH Policy • National RH Strategy • National Road Map for accelerating the attainment of MDG4,5 in Kenya • etc.

7. Implications of constitutional guarantees to RH programming Examples • Access to RH information and services is a right for all • Access to quality RH services is a right for all • Provision of RH services must respect the dignity of every person • Planning of RH services must observe principles of equality and freedom from discrimination • State has responsibility to ensure access to adequate health care by all including the poor and marginalised groups

8. Right to life Article 26

9. On The Big Debate NEW ABORTION LAW IS STILL BAD FOR WOMEN Whichever way the referendum will go, abortion may still be the only birth control option available since many [women] lack access to contraception Japheth Mati in STAR Thursday 29 April 2010

10. Article 26: (1) Every person has the right to life. (2) The life of a person begins at conception. (3) A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law. (4) Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.

11. Implications of Art.26(4) to provision of safe abortion services • Art 26(4) implies constitutional recognition of legal abortion in Kenya, even though under certain specified conditions. • Health providers have responsibility to ensure women have access to what they are legally entitled. • Note: Art 26(4) specifies “lifeorhealth” as grounds for legal abortion; this has expanded access to legal abortion beyond what existed in Penal Code Section 240, i.e. “life” only.

12. A number of questions arise from Art 26(4) • Who is a trained health professional? • What constitutes danger to life or health of the mother? • At what stage is emergency treatment mandatory? • What definition of ‘health’ is implied, is it WHO’s? • Is there a need for a list of conditions (or situations) that may necessitate emergency treatment?; • etc.

13. Concerns regarding lists • Lists may provide examples of conditions that are considered life-threatening, but must not preclude a doctor’s clinical judgment. • There is risk of Lists being interpreted restrictively, or be considered exhaustive, when in fact they cannot be.

14. Who among these is implied in “trained health professional”? Obstetrician Gynaecologist? Registered medical practitioner? Registered Clinical Officer? Registered Nurse? Registered Midwife? Any health worker trained to competency? All of the above?

15. Beware, Medical Guidelines may obstruct rather than facilitate access to legal safe abortion: Current MPDB guidelines on abortion state: • “…. it is strongly advised that the practitioner consults with at least two senior and experienced colleagues, obtains their opinion in writing and performs the operation openly in hospital if he considers himself competent to do so in the absence of a Gynaecologist”. NOTE: • MPDB does not restrict TOP operation to gynaecologists only; • One of the two colleagues is often a psychiatrist- usually to establish risk to life

16. MPDB guidelines that may obstruct access to safe abortion services: • Consulting at least two senior and experienced colleagues- how feasible in rural areas? • Restricting abortion procedures to hospitals- TOP often an OP procedure, and not always surgical! • Psychiatric assessment- howavailable is a psychiatrist? fear of psychiatric label; expensive, causes delay

17. Provision of ‘safe abortion’ services • WHO defines ‘safe abortion’ services as those provided by trained health workers using proper equipment and correct techniques, and supported by policies, regulations and a functional health infrastructure, including equipment and supplies.

18. Conditions for providing ‘safe abortion’ services within the law • Requirements of Article 26(4) are met • Conditions for WHO definition of ‘safe abortion’ are satisfied • Under such scenario termination of pregnancy is a legal safe medical procedure • “Unsafe abortion” implies termination of pregnancy outside above conditions

19. Factors behind denial of abortion services to women who are legally entitled to them: • Provider related factors: • Ignorance of the law, negative attitudes and biases, and conscientious objection • Lack of trained workers; and/or appropriate facilities Note: Service providers have ethical and legal obligations to provide women in need of abortion with appropriate information on where safe services may be obtained.

20. Factors behind denial of safe abortion services to women who are legally entitled to them cont’d. • Medical policies and practices: • Insistence on unnecessary procedures/practices • Opposition to task-shifting, and other regulatory bottlenecks • Community related factors: • Lack of awareness about facilities providing legal abortion services • Lack of awareness (among women) of need to report early in pregnancy

21. Is it time for a paradigm shift? Attitudes of health workers towards women who seek TOP require a paradigm shift: • FROM that of deep-rooted suspicion TO one of considerate review of all evidence present in order to ensure women are not denied safe abortion services to which they are legally entitled. • This is a right provided for under Art 26 (4) of the Kenya Constitution.

22. Conclusions • The Constitution of Kenya provides opportunities for enhancing health, including RH and rights of Kenyan women • The Constitution of Kenya has established the entity of legal abortion, under certain specified conditions • Health care providers must familiarise themselves with these constitutional provisions for effective implementation of quality RH services, and to avoid unwarranted access barriers to services that are legally sanctioned.

23. Conclusions • The relevant regulatory authorities and professional bodies have a responsibility to ensure their members are well updated on the RH provisions in the Constitution. • The medical fraternity has a responsibility to advocate for equitable access by all women to quality RH services, and to promote positive policies which eliminate unnecessary access barriers to legal safe abortion services.