What you need to know:
- Article 26(4) of the 2010 Constitution states that “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.”
- A new report by the Centre for Reproductive Rights, notes the that inclusion of abortion in the 2010 Constitution has turned out to be a rhetorical compromise that was probably never meant for implementation.
- Many women are afraid of seeking safe and legal abortion for fear of prosecution even in situations where terminated pregnancy is the result of rape.
- Pastor Ezra Muthama: The Bible teaches that life begins at conception, the foetus is a human life and therefore, entitled to all legal protections accorded to life outside the womb.
Petronila* was only eight years old when Kenyans trooped to various polling stations to cast their votes on a new constitution on the chilly Wednesday morning of August 4, 2010.
The only thing she recalls about the period is that there was no school that week. One of the polling centres was at her school in Kawangware. So Petronila stayed at home while her mother went to her school to vote. She doesn’t know if her mother voted for or against the 2010 Constitution.
Ten years later, in March 2020, 18-year-old Petronila would miss school again, but this time because she is lying on a hospital bed at a clinic just a few kilometres from her home – fighting for her life. She is alone, bleeding, and the only thought running through her mind is: “is this how I die?”
“I went to the clinic to get help because I had tried to get an abortion the day before and something went wrong,” she tells nation.africa.
“My friend knew a woman who could do it cheaply using miti shamba (herbs). I had no choice but to go to her because she was cheap. She only charged me Sh2,000.”
The herbs worked, but the abortion was incomplete and the bleeding would not stop. Petronila started feeling dizzy. She called her best friend who got her on a boda boda and rushed her to the nearest clinic.
Petronila didn’t dare tell her mother what was wrong.
She adds: “When I got to the clinic and told them what had happened, no one wanted to deal with me. One of the nurses told me I should be ashamed of myself and I deserved what was happening to me.”
What Petronila didn’t know as she fought for her life is that the consequences of a decision made by some six million Kenyans (a 67 per cent vote) a decade before, was now playing out right in front of her eyes - but not in a way anyone would have predicted.
The Kenyan Constitution permits abortion in the event that the life or health of the woman is in danger. Yet here she was, fighting for her life. Ignorant of the law that addressed her situation, Petronila sought help in a system that seemed unsure about what to do with this very law.
Trained health professional
Not only did the teenage girl have to deal with the clear and present danger to her life, she also had to fend off the judgmental stares and tones from those to whom she had entrusted her health and life.
Article 26(4) of the 2010 Constitution states that “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.”
However, in Petronila’s case, her current predicament was a consequence of a botched abortion by someone who was neither trained nor legally permitted to carry it out. Did the much celebrated “progressive” constitution foresee her predicament?
According to a new report by the Centre for Reproductive Rights (CRR), the inclusion of abortion in the 2010 Constitution has turned out to be a rhetorical compromise that was probably never meant for implementation.
In the study behind the report, CRR identified, reviewed and analysed 29 abortion charges and offences in six High Court stations including Kiambu, Machakos, Nairobi and Nakuru counties.
The revelations were telling: Not only were many healthcare service providers' understanding of the legal framework on abortion in the 2010 Constitution wanting, but the experiences of women, girls and health practitioners as they interacted with law enforcement officers and courts seeking to enforce abortion laws, left much to be desired.
Eight of the reviewed cases involved charges for the offence of “attempts by a woman with child to procure abortion,” contrary to section 159 of the penal code.
Two cases included a charge for the offence of “supplying drugs or instruments to procure abortion,” contrary to section 160 of the penal code.
However, none of the courts adjudicating the reviewed cases explicitly referred to or applied Article 26(4) of the constitution, either during the proceedings or in their final determinations.
“The persisting stigma and false narratives about abortion in the public domain and criminal justice system has put the lives of more Kenyan women and girls on the line,” says Evelyne Opondo, Senior Regional Director for Africa, Centre for Reproductive Rights.
“Many women are afraid of seeking safe and legal abortion for fear of prosecution even in situations where terminated pregnancy is the result of rape. Abortion stigma violates the rights of women and girls to access health, psychosocial support, and freedom from cruel, inhumane, and degrading treatment.”
A closer review of Petronila’s case and that of many women in her situation reveals that this may be by design rather than an aberration. Her story, it turns out, is the rule and not the exception.
“I never wanted to get pregnant, and I went to great lengths to ensure this did not happen,” recalls Petronila.
But it still happened, and suddenly, barely even out of high school, the 17-year-old found herself trapped in the matrix - trying to navigate the consequences of a love affair gone sour in the midst of a heated national debate, ambiguous laws and paralysing social stigma.
“My boyfriend ghosted me the moment I told him I had missed my period. I couldn’t tell my guardian because she had already made her stand clear. Also, this would have been my last strike before she kicked me out of the house,” she recounts.
“I had already used up the little money I had saved up working during the holidays as a waiter at a local eatery to pay for the failed procedure. Now, here I was in the hospital with doctors unwilling to help, and nurses threatening to call the police on me.”
Eventually, the nurses’ sense of duty overpowered their prejudice and they moved to save Petronila’s life.
Since she couldn’t afford to pay the clinic, she used her phone as security at a local shylock to get the money to settle the bill. Her life, though safe, would be permanently scarred by the ordeal.
“My guardian still found out about it because someone from the hospital informed her. I’ve been moving from one relative’s house to the next ever since. I feel like the system has failed me in ways I can’t even imagine. What’s worse is that my ex’s life continues as usual. It’s just not fair,” she says.
According to the CRR report, “most of the accused persons were either unaware that access to safe abortion is lawfully permitted to safeguard the life or health of an expectant woman, or were afraid to seek such services due to fear of being stigmatised, reprimanded, or prosecuted.”
This was the case even in cases where girls conceived as a result of defilement, and when expectant women and girls were suffering from health problems, including mental health conditions.
The report also highlighted accounts of healthcare providers being intimidated by the police and forced to err on the side of caution by refusing to even review such cases.
Many faced harassment, discrimination due to the stigma surrounding abortion, were forced to pay bribes to police, faced, and were threatened with criminal prosecution, in the course of providing safe abortion and post-abortion care.
Pastor Ezra Muthama of Redeemed Gospel Church, however, says that while the methods often used by those opposed to abortion leave a lot to be desired, their anger and outrage is based on valid reasons.
“We believe that only God has the right to decide when to end someone’s life. Abortion is murder, clear and simple. We are against abortion, not because we hate women, but because we love children and want them to get an equal chance at life,” says Pastor Muthama.
He adds that the Bible teaches that life begins at conception, the foetus is a human life and therefore, entitled to all legal protections accorded to life outside the womb.
“Life in the womb is no less precious than life outside the womb,” he argues.
“When you see these abortionists twisting themselves into knots arguing about trimesters, they are simply revealing that they know life matters before birth and abortion is just a sinful convenience.”
Pastor Muthama is, however, slow to condemn those who seek abortion when the life of the woman is in danger or when the pregnancy is a result of rape.
“I admit that life is hard and complicated. I empathise with anyone who finds themselves in this difficult position, but I believe God’s grace is sufficient to get us through unimaginable difficulties,” he says.
Opposition to abortion, and the stigma (the reason many who share their abortion experiences still hide their identity) is rooted in a conflict of convictions that cannot be easily dismissed or reconciled.
Beverly Nkirote, a programme officer at the Network for Adolescent and Youth of Africa (Naya-Kenya) says that while religious reasons for opposing abortion are valid, they are not universal.
“Not everyone is a Christian, and Kenya is a secular State, which means our laws are secular. So it would be a gross injustice, not to add a violation of the Constitution, to let the religious view prevail on any constitutional matter,” she says.
Ms Nkirote adds: “Forcing a woman to keep a pregnancy she doesn’t want, and one that will negatively affect her physical and mental health, based on philosophical and religious reasons she doesn’t even subscribe to, is a violation of her dignity and rights as a woman.
Dr Francis Muriithi, a gynaecologist and obstetrician, says that Article 26(4) delegates the responsibility to determine whether a woman should carry out an abortion to the doctor “and not the religious leader.”
“This tells you that abortion is essentially a healthcare issue, one with medical ramifications and cannot simply be resolved in the realm of philosophical and religious debate,” he says.
“When a young girl or woman is bleeding to death before your eyes from a botched abortion, that is not the time to review your convictions and debate about what a foetus is or isn’t.”
Dr Muriithi adds: “In the same way, if the health and wellbeing of a woman will be jeopardised by carrying the pregnancy to term, I have been tasked with making that evaluation using my medical training and not my religious orientation. I believe this should be the priority of every doctor.”
As Kenya marked a decade under the 2010 Constitution last year, President Uhuru Kenyatta said the constitution was a “work in progress” and “as such we were made to adopt it with the promise that in the future, we will make it better.”
But Orwa Michael, a democratic governance expert and Principal Associate at Miale Public Affairs, thinks this is simply a sleight of hand by the President.
“How can we improve on something we have actually not implemented? How do we know that it has failed when we have not even tried it?”
He adds: “We must not allow President Kenyatta's parochial and very private interests to override public and national interest. We must implement the katiba for the benefit of the women and girls, youth and the marginalised of this republic. Impunity is cured by adherence to the rule of law, not by change of law.”
Though remaining largely silent on the constitutional caveats to abortion, pro-life groups argue the laws being proposed to operationalise this caveat, such as the Reproductive Healthcare Bill 2019, will throw wide open the doors to promiscuity, uncontrolled sexual expression and abortion on demand.
In a memorandum to the Senate Committee on Health, some 23 pro-life organisations made the case that the Bill is advocating for “illegalities and practices that are not acceptable in our country as it will make legal abortion on demand in the country contrary to the spirit of our Constitution of 2010 and the Penal Code.”
The groups were led by Dr Jean Kagia, founder of Protecting Life Movement Trust, Susan Mbugua, founder of Hope and Restore Centre - Kibra, Aketch Aimba who founded Pearls and Treasures Trust, and Kiminini MP Chris Wamalwa, who chairs the Catholic Members of Parliament SSI.
They argued that the Bill had been sponsored by foreign NGOs that have continuously pushed for it through media and workshops with a number of legislators.
“The outspoken agenda by these non-governmental organisations has been to make abortion legal in the entire of Africa, Kenya being their number one target,” reads the memo.
As both camps trade words and fight for what each side believes to be a fundamental human right, life has not waited for women and girls like Petronila.
They still find themselves daily having to make decisions that they find unfair, overwhelming, sometimes impossible, and often permanently life-changing.
Constitution on trial - The JMM abortion case
The first time Article 26(4) was explicitly mentioned and brought to bear on abortion in Kenya was in 2019, almost a decade after the promulgation of the current constitution.
The venue was the Nairobi High Court. The plaintiff in this case, was a 14-year-old girl, going by the pseudonym JMM.
JMM was raped, got pregnant and eventually forced to get an unsafe back alley abortion that left her fighting for her life.
When she developed complications and sought professional medical help, the healthcare system doubted her, delayed and denied care on repeated occasions. JMM died before the court could rule on her petition.
The case revealed that the government, particularly the Ministry of Health (MoH), had failed JMM by not only failing to give her the essential emergency care she needed, but it had also failed her by not equipping its healthcare providers for just this situation.
This is because in 2012, with the Constitution barely a toddler, the MoH arbitrarily withdrew the standards and guidelines designed to protect women from dying from abortion related complications.
The Director of Medical Services also banned any training on the same - effectively crippling the healthcare system.
But in 2019, the High Court found that this move was not only irregular, but illegal, and ruled to reverse the decision and reinstate the standards and guidelines as well as the training curriculum.
More than a year since the ruling, the ministry has not taken action to show any intention to comply with the ruling.
Appearing before a section of MPs in October 2020, Health CS Mutahi Kagwe said that the Standards and Guidelines were withdrawn because they “created ambiguity” and “covertly enabled” enabled unqualified healthcare providers to indiscriminately terminate pregnancies.
No evidence of such indiscriminate termination, let alone their direct link to the Standards and Guidelines has ever been presented to the public by the Ministry of Health.
Timeline: The Ministry of Health Standards and Guidelines for Reducing Mortality and Morbidity from Unsafe Abortion
2012: The Ministry of Health Standards and Guidelines for Reducing Mortality and Morbidity from Unsafe Abortion, 2012 (Standards and Guidelines) were developed to standardise services and improve the knowledge and skills of healthcare providers.
2013: The Director of Medical Services withdrew the Standards and Guidelines, followed by a memo in February 2014 that further stated that there was no need for the training of health workers on safe abortion care or the use of the drug Medabon for medical abortion.
2015: Fida-Kenya, JMM and others filed a case against the Attorney General, Director of Medical Services, and the Ministry of Health. The petition called on the Ministry of Health to reinstate Standards and Guidelines to provide clarity on when and how to provide legal abortion care.
2018: JMM dies after suffering from complications that resulted from an unsafe abortion.
2019: The High Court rules to reinstates the Standards and Guidelines, which allow healthcare workers to exercise their constitutional mandate pursuant to Article 26(4), which explicitly allows medical services providers to provide safe abortion when the health/life of the woman is in danger, in cases of emergency or under any other written law.
2020: The Ministry of Health is yet to reinstate the Standards and Guidelines as well as the training curriculum, but has filed notice to appeal the High Court decision.
I am JMM, I died from a botched abortion after a raped ordeal
My name is JMM, and I would have turned 21 later this year. I won’t. I died two years ago, in June 2018, and this is the story of how I died.
A man raped me when I was 14 years old. I had just joined high school with dreams of a successful career.
He was an older man. I thought I could trust him, but he took advantage of me. A few weeks after the event, I noticed that my menses didn’t come at the time they usually do.
I also started feeling nauseous six weeks later. I was sure I was pregnant but I was afraid to tell my mother. What would she think? I also knew I would be blamed for what happened, and the fact that I had kept silent all this time didn’t help matters.
So, I turned to my friend who was only a few years older than me. She was the only one I knew who wouldn’t judge me. My true friend. I trusted her.
“I know a woman who will help you, she works at a pharmacy,” my friend told me, reassuring me: “She has helped many other girls get rid of their pregnancies and no one ever found out that they were pregnant.”
We visited the pharmacy at Ibeno Trading Centre. I didn’t have any money, so my friend offered to pay the Sh1,500 that was needed.
I am not sure what medicine the woman gave me. All I remember is that she gave me a very bitter drink afterwards and advised me to go home and wait for the rest of the blood and tissue to come out by itself.
I didn’t even complete a day at home before I started vomiting and bleeding heavily. I will never forget that pain I felt. I was shaking all over and sweating profusely. I thought I was going to die.
My mother rushed me to a nearby dispensary, but the nurses there said my situation was too serious for them. They didn’t have the necessary equipment.
After a few hours, because it took my mother some time to borrow money for a taxi, I was transferred to Kisii County Referral Hospital, located about 15.6km from my home. I was at the hospital for three nights and received some treatment.
Afterwards, the doctor at the hospital told my mother that I needed specialised treatment because my kidneys had been affected. On December 12, 2014 at about 10am, they referred me to Tenwek Mission Hospital for dialysis, some 50kms away.
At Tenwek, I was immediately admitted to the Intensive Care Unit (ICU). By this time, I could not talk. Nothing much happened at Tenwek. For seven days, they only gave me drugs to manage my pain and some fluids. We would later learn that the hospital did not even have a dialysis machine and could, therefore, not provide the services for which I had been referred and admitted for.
Twelve days after the incomplete abortion, on December 19, 2014, I was transferred to Kenyatta National Hospital (KNH) in Nairobi where I received the post-abortion care and the dialysis I needed.
Chronic kidney disease
The doctors at KNH diagnosis told my mother that I’d had a septic abortion, haemorrhagic shock and had developed chronic kidney disease. I had no idea what those words meant, and I was barely able to speak throughout the entire ordeal.
About 68 days later, on February 25, 2015, I was discharged from KNH. But no one celebrated.
You see, my mother, a casual labourer, could not afford to pay the Sh39,500 hospital bill needed to release me. So, I was detained at the hospital. I was also forced to sleep on a mattress on the floor at a “detention centre” in the hospital.
It is during this detention that I fell sick again and was returned to the main hospital for treatment for four days. I would later be returned to “detention” for a further two weeks, before they finally waived my bill and allowed me to leave.
For the next three years, what started as an attempt to conceal the shame of my pregnancy ended up being a life of managing kidney disease. I required dialysis every month at the KNH renal unit. My mother couldn’t afford it.
In June 2018, overwhelmed by the complications from the kidney disease, my body gave up the fight. I was 18 years old when I died.
My girlfriend wanted to keep the pregnancy, I didn’t
Stephen* and Mama Janet spoke to nation.africa
When my girlfriend told me she was pregnant and that she wanted to keep the baby, I assured her I would support her decision and will do my best to be there for her.
Then I changed my mind.
It was towards the end of 2019. I was 25, she was 22. I had just graduated from college and was struggling to get a job. She was still in college with a year left to go.
One day, she told me she had missed her last period and was about one month pregnant
I was quiet for a moment. I did some calculations in my mind and asked her what she wanted to do. She said she wanted to keep the baby, that God would provide, and that whatever happens we would get through it.
I don’t know what it is about women but they always seem ready to rear a child. Most of my girlfriend’s friends were in their mid-20s and some had children, so I thought that she was dealing with peer pressure.
I embraced her and told her that I agreed with her. After all, I loved her. We had dated for about five years now. There was no way I was going to deny that I was the father of the child and let her go through this alone. We would get through it together.
However, the week that followed this conversation was hell for me. I couldn’t function. I couldn’t focus at work. I couldn’t sleep and I lost my appetite.
I started thinking about the responsibility that was ahead of me. I got real honest with myself and concluded that there was no way I was ready to rear a child.
That’s when I spoke with a friend who had been in this situation multiple times with different girls. He is a serial dater, and I currently know about six women he has made pregnant and they all got rid of the pregnancy.
My friend gave me the number of a lady, Betty, who would help us out.
But I had heard stories of abortions going wrong and I really didn’t want my girlfriend to suffer. I wanted to do it medically and professionally. So I did my research.
That’s when I found out about the Marie Stopes clinics. Throughout my research, I had not told my girlfriend about my change of heart.
But time was running out, and I had read about the dangers of waiting too long before getting the procedure. So, I gathered courage and brought up the topic with my girlfriend.
I told her that she still needed to complete school, and that this would disrupt her life and pull her back. I told her that I really didn’t feel confident or stable enough to keep the pregnancy.
Wrong before God
My girlfriend was quiet as I spoke. Unusually quiet. I remember she kept giving one word responses to every thousand words I spoke.
When she spoke, it was to ask questions. She asked about safety. Then she raised religious concerns, that what we were doing was wrong before God. But eventually, she agreed to do it.
We went to the clinic and got the procedure without any hurdles. There were no complications.
However, I now live with the guilt that I may have forced my girlfriend to do something she did not want to do. I feel that I pressured her because it was convenient for me.
I wish she said more about the abortion when I brought it up before we had it done. A year down the line, she still doesn’t want to talk about this part of our lives.
Just the other day I was thinking about how the baby would have been born around September last year. I don’t know why that thought came to me, but it just did.
I believe we have both accepted that we made the right decision and we can now move on with our lives. Yet, sometimes I am not so sure.
But one thing I know for sure is this, if you decide to go the abortion way, do it right. Do your research. Find the safest and legal option available and go with that.
Mama Janet: I got an abortion to save my life, but my life is still in danger
I am 40 years old and a mother of four - the eldest is 18 years, while the last born just turned three. Last year, the year of Coronavirus as I and my friends like to call it, was one of the worst for me.
I found out I was pregnant sometime in early April. It was a surprise pregnancy as my husband and I were sure we would never get pregnant again. I was also on the pill.
Then my husband was laid off from his job in, Industrial Area, in May. His employer said they could no longer afford to keep him and many of his colleagues since Covid-19 had collapsed the market.
My husband became depressed and started drinking heavily. He has always taken alcohol, but this time it was worse. At least when he had a job he had to stay sober during the day so that he could focus on his work.
But now he had all the time to drink. We live in Embakasi, Nairobi, and he would spend almost the entire day at a local drinking den, where he could get the alcohol on credit.
Child not his
One day, he came home and started a fight out of the blue. “Mama Janet sasa mbona unataka kuniua? (why do you want to kill me?),” he asked me.
The first time he asked me this question, I was confused. I told him I had no idea what he was talking about.
“Sasa huyu mtoto unataka kuzaa unadhani atakula nini? Ni kama tu unataka kuniua na stress (The child you’re carrying, what do you think they will eat? You want to kill me with stress,” he explained.
I told him we would be fine. God would provide like He had provided for our four children. After all, I still made a little money cleaning houses and clothes in the neighbourhood.
Then he started saying he suspected the child I was carrying was not his. He started beating me. He has beaten me several times in the past, but this time I literally became his punching bag.
He would come home drunk, call me all sorts of vile names that I cannot even repeat, then punch me over and over. I now have permanent bruises and cuts on my face from his beatings.
That’s the time I started using antidepressants to get over my own stress. I would get so high that I would not feel anything when he beat me. Sometimes I even dared him to do it.
One time he hit me so hard I passed out. When I regained consciousness, I was lying on a bed at a local clinic. I learnt that some neighbours had brought me in after one of my children called them for help.
At the clinic, the doctor found that my blood pressure was very high. He told me I needed to do something about it as it may affect my pregnancy. He said I may have a miscarriage or end up dying if things didn’t change.
The doctor prescribed some medication, but I couldn’t afford it. He also told me to stop using the drugs that I was taking for stress. I tried to borrow money from friends but they all said Covid-19 had messed up their finances and they didn’t have money to spare.
Causing him stress
Eventually, I felt time was running out and I had no choice but to terminate the pregnancy. At least this would make my husband calm down and he would stop being violent.
Luckily, my friend took me to a clinic - they were very professional. The abortion went well. At least now my husband would stop beating me since I was no longer pregnant and causing him stress.
But when I told him, he said: “See! I knew you were a prostitute. Umetoa mimba ndio nisijue mtoto sio wangu, malaya wewe! (You got rid of the pregnancy so that I wouldn’t find out I was not the father. You prostitute!”
Then he beat me even harder. He continued to beat and abuse me for weeks and I could not do anything. The police couldn’t help me, they said we should solve domestic issues at home.
I could not take refuge at my friends’ houses because they were already struggling to make a living. I had to take the beatings until they finally removed the travel restrictions in July.
I got some money from my cleaning job and took the two youngest children and travelled upcountry to live with my mother.
After about a month, my husband started begging me to come back. He said he was sorry, that he’d found another job and he was ready to provide for us.
At first I didn’t believe him and I swore that I would never come back. But then the government announced that schools might be reopening soon and I started worrying about school fees.
It’s been a month now since I came back to Nairobi. My husband has not laid a hand on me. However, he still insults me when he gets drunk.
I don’t know what the future holds. I am just grateful for every day that I make it through without a beating. I am grateful to be alive.
Unsafe abortion in numbers
- An estimated 2,600 Kenyan women die from unsafe abortions annually, which means seven deaths every day. (APHRC)
- Unsafe abortions account for 35 per cent of the maternal deaths in Kenya (2014 Kenya Demographic Health Survey); the global average is 13 per cent.
- The cost of treating complications arising from unsafe abortion in public facilities in Kenya was Sh432.7 million, or US $5.1 million. (2018 study by APHRC and MoH)
- Approximately 464,000 women had an abortion in Kenya in 2012 (APHRC and MoH).
- Approximately 25 per cent of the illegal abortions that women seek out in Kenya each year result in severe complications and hospitalisations. (Guttmacher)
- Each year, 4.7 per cent - 13.2 per cent of maternal deaths are attributable to unsafe abortion, most in the poorest countries.