Upholding the health rights of teenage girls: Legal imperatives and societal challenges

“Health is life. Protection of teenage girls’ right to health is mandatory!” This proclamation highlights the essence of safeguarding not just one’s physical well-being, but also mental and social wellness, as delineated by the World Health Organisation (WHO).

Health is one of the political goods that any sovereign nation has the responsibility to deliver on. In the legal realm, the preservation of the health of teenage girls is an indispensable mandate for both levels of government in Kenya.

Margaret Nyambura, Health Lawyer with the Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN), and Member of the Medico-Legal Committee of the Law Society of Kenya (LSK), underscores the profound correlation between health and dignity, emphasising that mere existence of life does not suffice. The standard of health a person enjoys truly defines the quality of their life.

Pregnancy, while not a malady, profoundly impacts the holistic well-being of a woman, particularly a teenager. Nyambura elucidates the dire consequences, including heightened health risks due to underdeveloped reproductive organs, which may culminate in debilitating conditions like fistula, accompanied by enduring psychological trauma.

The grim reality of Kenya's soaring rates of teenage pregnancies, as revealed by the National Syndemic Disease Control Council (NSDCC), underscores a systemic failure to safeguard the health and rights of adolescent girls. With 696 girls impregnated daily in 2023, urgent action is imperative.

Nyambura explains that a rise in incidences of sexual offences against girls, are to blame for the rise in teenage pregnancies. According to Section 8 of the Sexual Offences Act 2006, a person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

Limited awareness on the Sexual Offenses Act 2006

The Sexual Offences Act 2006 prescribes mandatory minimum sentences for persons who are convicted for sexual offences, with the aim of deterring further incidents.  Nyambura highlights Supreme Court Petition E018 of 2023: Republic v Joseph Gichuki, which challenges the mandatory nature of these minimum sentences so as to allow judicial officers the discretion to mete out sentences based on the circumstances of a case. KELIN is participating in this petition as amicus, guiding the court in arriving at a determination on whether the mandatory minimum sentences in the Sexual Offences Act 2006 are unconstitutional.

Statistics indicate that a lack of information significantly contributes to incidents of sexual offences. In response, Dorice Donya Aburi, the Member of Parliament for Kisii Constituency, has introduced the Sexual Offences (Amendment) Bill 2023 to provide for promotion of national public awareness of sexual offences. The Bill also seeks to mandate the cabinet secretary responsible for education to establish programmes to safeguard, protect, and promote the right to education of victims of sexual offences, including victims of teenage pregnancies.

"Many individuals are unaware that engaging in sexual activity with a teenager is a punishable offense under Kenyan law. To ensure law enforcement and the protection of rights, instilling a sense of fear and increasing awareness is crucial," Nyambura asserts. She stresses the importance of comprehensive in-school and out-of-school programmes with preventive and socio-economic dimensions. Additionally, she suggests collaboration between the Ministry of Education and civil society organisations that offer vocational training to teenage girls, thereby providing them with valuable skills.

Nyambura refers to the inalienable nature of human rights, which underscores the need to prevent a violation of the right to dignity of teenage girls as this has a domino effect on their health and education. The National Guidelines on School Re-entry in Early Learning and Basic Education 2020, are a Ministry of Education policy that acknowledges teenage pregnancy as the leading cause for school drop out of adolescent girls. This confirms the position that sexual offences against teenage girls are a form of discrimination, for which the State ought to offer protection. One of the protections that can be issued is the creation of a conducive environment for candidates sitting final examinations while seeking maternity services in health facilities.

Social norms as drivers of injustice

Teenage pregnancy represents a significant injustice that demands collective societal action. However, it is disheartening to note that certain societal norms exacerbate the infringement upon teenage girls' right to health.

According to Nyambura, societal expectations are barriers to awareness on and access to reporting mechanisms, denying teenage girls justice for the violence they may have endured. Furthermore, the stigmatisation of teenage pregnancy as a moral failing alongside cultural norms behind child marriages, as compounding the cycle of health risks.

Compounding this issue is the disturbing reality that some incidents of sexual violence against teenage girls are perpetrated by close relatives. The lawyer highlights that in cases of incest, children born from such situations may have unique lifelong needs, imposing an involuntary burden on teenage girls who should ideally be focusing on their education.

Moreover, barriers like financial constraints and the legal requirements that pregnant teenage girls should be accompanied by their parents or guardians when seeking access to healthcare, are hurdles that further amplify health risks and injustices.

KELIN filed the High Court Petition 27 of 2022 challenging the National Reproductive Health Policy 2022-2032 on several grounds, key among them the exclusion of young girls from accessing or receiving critical health services or information, failing to consider the reality of many Kenyan teenage girls.

Barriers to accessing healthcare services

In Kenya, individuals must attain the age of 18 before they can consent to receiving various services, including reproductive health services. Below this age, parental consent is required, placing significant decision-making power in the hands of parents. However, this requirement can be problematic for teenagers without parental support or those whose parents object to their pregnancy.

Access to healthcare facilities presents another obstacle for pregnant teenage girls. Data from the Kenya Demographic and Health Survey indicates that certain marginalised regions in the country have particularly high rates of teenage pregnancies, exacerbated by limited availability of hospitals in these areas.

Strategies for effective accountability

In response, strategic interventions are imperative. The ‘red card’ campaign, spearheaded by the Kenya Human Rights Commission, serves as a rallying cry for accountability, targeting both the leadership of high incidence counties; and policymakers.

A multi-stakeholder approach, integrating education, healthcare, and legal frameworks, emerges as a linchpin in effecting transformative change. Schools play a pivotal role in the prevention of teenage pregnancies and reintegration of teenage mothers. They ought to be supported by a robust healthcare system that prioritises counselling and socio-economic support for pregnant teenagers. Healthcare providers need to understand that it is their responsibility to ensure the care and counselling of teenage girls who fall pregnant. They ought to understand that they are dealing with victims of defilement, as children are unable to give consent to sexual relations.

As advocates press for legislative reforms and holistic interventions, collaboration across sectors is paramount to curbing the prevalence of teenage pregnancies. Civil society initiatives, bolstered by governmental support, hold the key to empowering teenage girls with knowledge, resources, and resilience.

Let us stand together to uphold the rights of teenage girls in Kenya, in the pursuit of health, equity and justice. Every positive action, no matter how small, can make a difference in shaping a better future for girls in Kenya. Join the movement today!