Africa, Development & Aid, Gender, Headlines, Human Rights, Poverty & SDGs

KENYA: Ready For New Abortion Law?

Najum Mushtaq

NAIROBI, Sep 16 2008 (IPS) - In May 2008, a group of civil society activists launched a campaign to reform Kenya's archaic abortion laws, sparking a countrywide debate. Now, as a new draft bill on women's reproductive health and rights seeking to decriminalise abortions is set to be tabled in parliament, the battle lines between opponents and advocates of abortion are clearly drawn.

If adopted by parliament, the bill, prepared by a network spearheaded by the Kenya chapter of the International Federation of Women Lawyers, the Coalition on Violence Against Women and the Kenya Medical Association, would make Kenya only the second African country (after South Africa) to relax its highly stringent and restrictive abortion laws.

The bill's legislative future, however, seems bleak. "Kenya is not ready for it," says lawyer Alice Wahome, a leading activist of the National Rainbow Coalition party. "There are 20 women and 200 men in the parliament. Outside the legislature, opposition from the churches and patriarchal social norms will also not allow any such change. No chance."

That the new bill has ignited an intense debate in a country where abortion remains a religious and cultural bugbear rather than a matter of women's health and rights, says Wahome, is a big step forward in itself.

Peter Karanja, chief of the National Council of Churches in Kenya, summarily dismisses the proponents of the new bill as "some feminist lobbyists." He told IPS that the proposed law "should not be tabled in parliament. Neither should it be passed if tabled. It is an outrageous attempt to legalise abortion."

The abortion law in Kenya dates back to 1897 and it states: "Any person who, with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious things, or uses force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for fourteen years."

Another section of the present law criminalises women seeking abortion and stipulates seven years of imprisonment. The only exception this law makes is in cases where, in the considered view of doctors, it can be proven that the mother's life is in danger.

Yet, the law is applied only in a few exceptional cases. In fact, it has only helped to raise the cost of safe abortions and push most women seeking to end pregnancy into the hands of quacks who use all sorts of poisonous potions and sharp objects.

According to a 2004 study by the ministry of health, funded by the Rockefeller Foundation and titled "A National Assessment of the Magnitude and Consequences of Unsafe Abortion in Kenya", 300,000 women get abortions in Kenya each year, nearly half of them between 14 and 24 years of age. More than 20,000 of them end up in hospitals with complications after unsafe abortions.

Another study of hospitals in Western Kenya notes that almost 50 percent of all gynaecological emergencies arise from badly-performed abortions. The research, which was carried out in 2006 by Kakamega Provincial General Hospital in Western Kenya, also observed that more than half such patients were teenagers.

Why a New Law

"The existing law is incongruent with and uninformed by the ground reality," says Dr James Mwangi, an obstetrician at a state-run hospital in Nairobi. "All hospitals receive cases of difficult pregnancies and of abortions gone wrong. As doctors, we face a stark choice and the law is prohibitive". A paper by Boaz Otieno-Nyunya and Peter Bundi Gichangi, both doctors and members of the Kenya Medical Association, says that the present law lacks "clear definitions of when life begins, when is a woman's life in danger, what the legal definition of abortion is vis-à-vis the medical definition."

Multiple and sometimes conflicting interpretations of the abortion law by courts, when to intervene in a case of unwanted, unplanned pregnancy and what is reasonable intervention within the confines of the current law are some other issues that haunt medical practitioners.

"The law as it is now is ineffective and difficult to enforce being commonly ignored by doctors and patients alike," says the paper. The doctors want to expand their discretion in the matter and decriminalise and regulate abortion under a different law. They recommend: "Leave the personal choice to the woman and provide an enabling environment for making this choice."

In addition to seeking legal protection for doctors having to perform abortions, the paper also calls for broadening the circumstances where abortion is permissible to include rape, incest, mental state abnormality, failed contraception and social stigma.

Kenya is also obliged under its international commitments to improve its reproductive and sexual health services in order to reduce the maternal and infant mortality in accordance with the Millennium Development Goals.

The Maputo Protocol adopted by heads of state and government of the African Union in its 2003 summit in Mozambique, urges states to respect and promote the health of women especially in the area of sexual and reproductive health. Meeting these commitments requires an array of legal reforms, including a revision of the existing abortion law.

Why Now?

This is not the first time that advocates of women's reproductive rights have launched a campaign to legalise abortion. A similar drive was launched in 2004 when political parties were engaged in a process to redraft the constitution.

Now, the grand coalition of President Mwai Kibaki and Prime Minister Raila Odinga is again tasked to draft a new constitution within a year. Human rights activists and doctors see in this process an opportunity to push the bill forward.

"It's an old battle being fought afresh." Says Alice Wahome. She recalls how the churches and the male-dominated constitutional process thwarted all attempts to revise the abortion law despite inserting a Bill of Rights in the proposed constitution (which was rejected in a 2005 referendum).

"On the one hand, the Bill of Rights provided several fundamental rights to the Kenyan woman. On the other hand, the section immediately following the one that guaranteed all citizens the right to life stated that 'The life of a person begins at conception'. It was paradoxical and a fatal blow to the movement for reproductive rights," Wahome observes and hopes it won't be repeated in the new constitution.

There is a slim chance, though, that this time around the campaign may get a strong political supporter from within the ruling alliance.

When she was the minister for water resources and management, Martha Karua told a convention of doctors in 2004, "Let us not bury our heads in the sand, let the hypocrisy attached to the debate end and let sobriety prevail.

"Let us not perform abortion for ourselves, our wives and daughters in private, but pretend to condemn the practice in public because it is politically and socially right to do so… Let us respect the body integrity of women and not make their bodies a battle ground."

Now, as the minister for justice and constitutional affairs, Martha Karua is deeply engaged in the process of drafting the new constitution. She has also announced herself to be a presidential candidate in 2012 and campaigning aggressively. Political empowerment of women, after all, will be the decisive factor even in the abortion debate.