4/7/2023 ABOUT THE MALINDI ABORTION RULINGOn 24th March 2022, the High Court of Kenya in Malindi affirmed the right to abortion as guaranteed under the Constitution and directed Parliament to enact a public policy framework on the matter. The ruling is referred to in short as the "Malindi ruling", and it was made in petition E009 of 2020 in the case of PAK and Salim Mohammed vs the Attorney General and 3 others where a teenager (PAK), who was in form 2 at the time, suffered a miscarriage and had to have an emergency manual vacuum evacuation performed to save her life. After the procedure was performed, plain-clothed police officers stormed the hospital acting on "intelligence" and arrested PAK (who was still recovering), the healthcare professionals who performed the life-saving procedure, and two cleaners. They also confiscated PAK's treatment records. PAK was then forced to undergo a medical examination to prove she'd had an abortion, and she was charged with procuring an abortion contrary to section 159 of the Penal Code. The healthcare professionals were charged with assisting her with the "crime" as well as procuring drugs for the "crime". This is a review of the ruling and the events surrounding the ruling. What do Kenyan laws say about abortion? Photo by Gayatri Malhotra on Unsplash The right to abortion is guaranteed under Article 26 of Kenya's new Constitution (2010) where it is written as an exception to the right to life. Below is Article 26 including the clause on abortion: 26. Right to life From Article 26(4), we can see that the Kenyan Constitution allows abortion, but under strict circumstances, and only if a healthcare professional opines that abortion is necessitated. This is important to note because immediately after the Malindi ruling, medical professionals in Kenya under the Kenya Christians Professionals Forum (KCPF) and the Kenya Catholic Doctors Association (KCDA), two powerful lobby groups that have opposed everything from vaccines to sex ed to LGBTQ+ rights, started protesting against the ruling, first on a Zoom forum and then in the streets. These doctors are of the opinion that abortion should be completely illegal, and they constantly churn out misinformation on sex and reproductive healthcare. So we've already hit our first set of problems:
Kenya is also a signatory to the Maputo Protocol, which is short for The Protocol to the African Charter on Human and People’s Rights (ACHPR) on the Rights of Women in Africa and which was adopted in Maputo in July 2003. Section 14 of the Maputo Protocol states that signatory countries shall ensure that the health and reproductive rights of women, including sexual and reproductive health, are respected and promoted. This includes the right to control fertility, the right to decide whether or not to have children, the right to decide how many children to have, the right to contraception, and the right to be protected against sexually transmitted infections. Countries are also to provide affordable and accessible healthcare services including in rural areas and to strengthen prenatal, delivery, and post-natal services. It is also in section 14 that we find the right to abortion. It states: States shall take all appropriate measures to protect the reproductive rights of women by authorizing medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus. The Maputo Protocol is radically different from the Kenyan Constitution. Specifically, the phrase "States shall take all appropriate measures to protect the reproductive rights of women by authorizing medical abortion" puts the onus to protect abortion rights and access squarely on the state. Additionally, the Maputo Protocol does not invoke the power of healthcare professionals to decide whether or not an abortion is "necessary". Furthermore, not only does section 14 of the Maputo Protocol recognize and protect a person's right to decide whether or not to carry a pregnancy to term, it also goes the extra mile of ensuring that the state is on the hook for providing healthcare services for ALL people regardless of where they are on their reproductive journey. Why then, don't we use the Maputo Protocol since it is more clearly defined and more expansive? Well, technically, we do use it, but the Constitution reigns supreme. The Constitution always takes precedence. This is important to note, also, because now the Penal Code—the document that lists offenses and their respective punishments—comes in. The Penal Code states the following about abortion: 158. Attempts to procure abortion Now we've hit our second set of problems. The Constitution allows abortion, but the Penal Code does not. But remember, the Constitution takes precedence, the Constitution is the supreme law of the land; so it's the Penal Code that's wrong—but who's arguing with the police about that? In this country where simply uttering the statement "I know my rights" gets you killed, who's arguing with the police that the Penal Code is wrong? And this is not the only instance of the Penal Code being wrong, this actually happens more often than you would think—you have to remember, the Penal Code was written during colonization at a time when British colonialists were ramping up state repression of indigenous resistance, and we have carried this Penal Code with us even after independence, even after the new Constitution. As it turns out, we should've thrown out this colonial relic when we had the chance. Because of sections 158 and 160 of the Penal Code, training healthcare workers to perform abortion procedures like the one PAK received (manual vacuum evacuation; MVE in short) or other procedures such as a dilation and curettage (D&C) becomes a risky and potentially criminal act, the end result being that only few healthcare practitioners know how to perform these procedures. Furthermore, abortion providers are put in the position where advertising their services could be interpreted as a criminal offense, a fate that befell Marie Stopes in 2018. Consequently, the public remains in the dark about the availability of abortion services and people in need of abortion services are often left with no choice but to have backstreet abortions. In Kenya, the abortion rate stands at 48 per 1000 girls/women aged 15 to 49, with 25% of abortion cases resulting in complications that require treatment at health facilities. Marie Stopes estimates that about 320 Kenyan women are hospitalized and 7 die daily as a direct result of having unsafe abortions. These are examples of the many ways in which these laws are robbing pregnant people of accessing the care they need. In what other ways are anti-abortion laws harmful?Anti-abortion laws harm people who experience miscarriages. This is because there is little difference between a miscarriage and an abortion. In fact, the medical term for miscarriage is spontaneous abortion, and the "bad" kind of abortion that people campaign against is called induced abortion. Not only are they both abortions, but also the interventions—such as D&C procedures and prescribed medication—for both kinds of abortions (spontaneous or induced) are the same, and medical examinations often cannot distinguish between a spontaneous or induced abortion. Because of this, laws criminalizing induced abortion end up criminalizing miscarriages (spontaneous abortions) as well--people who have miscarriages end up being arrested and convicted on suspicion that they had an induced abortion. Essentially, anti-abortion laws automatically consider pregnant people as potential criminals, and this results in even more draconian laws such as laws that track your menstrual cycle and laws that monitor/ban the movement of anyone who is pregnant or who can get pregnant. Under such laws, failing to give birth to a live, healthy baby is considered a crime. Furthermore, if you suffer a miscarriage (spontaneous abortion) and the miscarriage doesn't finish, you'll need to get an induced abortion to remove the remaining foetal tissues out of your body. This is why PAK had an abortion performed. If you don't get an induced abortion to remove the remaining tissues after an incomplete miscarriage, you'll go into sepsis (blood infection that spreads all over the body and causes your organs to shut down) and die. So you see, abortion is quite literally healthcare. Anti-abortion laws ban procedures like the one PAK had (she had an MVE, and abortion bans target MVEs, D&Cs, etc) as well as abortive medications such as mifepristone. By doing so, they prevent pregnant people from accessing these life-saving procedures and medications. Moreover, some laws go as far as banning any and all medications that can result in an abortion. These medications are called abortifacients, and they include medications that treat a wide range of conditions from cancer to auto-immune diseases. One such medication is methotrexate which is used to treat cancer, psoriasis, rheumatoid arthritis, and Chron's disease, among others. In the US, anti-abortion laws targeted medications like methotrexate, and this not only prevented patients from accessing vital medications but also turned any person who uses methotrexate and other such medications into a criminal. Consequently, anti-abortion laws affect not just pregnant people but also non-pregnant people regardless of whether or not they can become pregnant. In short, anti-abortion laws harm EVERYONE. How did the Malindi ruling affirm the right to abortion?Photo by Aiden Frazier on Unsplash The Malindi ruling affirmed the right to abortion in the following ways:
What would I like to see change? Photo by Ethan Gregory Dodge on Unsplash After the Malindi ruling, I sat in on two Zoom meetings, one with the aforementioned KCPF and another with doctors and lawyers working for reproductive rights. On both sides, I was disappointed, but for completely different reasons. The KCPF people are flaming bigots (and I was surprised to find that their members work with high-profile international far-right NGOs such as CitizenGo who created a misinformation campaign against the Reproductive Healthcare Bill 2019 and the Assisted Reproductive Technology Bill 2019 as revealed by a Mozilla investigation). The amount of medical misinformation coming from doctors themselves was alarming. But these are the same doctors who refuse to prescribe contraceptive pills and refuse to perform tubal ligation procedures, so of course they will do and say anything to disparage abortion. But shouldn't their medical licenses be revoked, then? At the very least, these people shouldn't be allowed to be practising medical doctors. On the side of the reproductive rights activists (this particular group was made of of mostly lawyers and doctors), none of them noted that pregnant people lack autonomy under the current laws; in fact, their major concern was that doctors would no longer be arrested—which is a win, I agree, but it came across like they'd reached their destination and the rest of us were to keep up the good fight on our own. Their focus was almost solely on doctors, and pregnant people—people like PAK and many more who need reproductive health services—were very much a by-the-way. It was a clear "we do not understand class solidarity" kind of moment. That needs to change. The judge in the Malindi ruling noted that Article 26 (2) of the Constitution—"the life of a person begins at conception"—is a great hindrance to reproductive rights and justice. This section is used to give credence to sections 158, 159, and 160 of the Penal Code even though this part of the Penal Code is in direct contradiction to Articles 26 (3) and 26 (4) of the Constitution. At the very least, we have to throw the Penal Code in the garbage bin; but we may be due for another constitutional review, too (I fear, though, that the country is in its fascist era). We must also implement the Maputo Protocol and the Malindi ruling. What does "abortion on demand" mean? Abortion on demand simply means that access to abortion should be:
No one should be forced to be pregnant, or to carry a pregnacy to term, or to give birth. Pregnancy is not a punishment for sex, and everyone has the right to decide whether or not they want to have children. Comments are closed.
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