It was another day, another court fight beckoning. A teenager in Kilifi County had been arrested and taken to a senior principal magistrate’s court in Kilifi, where she was charged with procuring an abortion. She pleaded not guilty. The date was September 23, 2019.
At the same session, Mr Salim Mohammed – a clinical officer who attended to her – was also charged with procuring an abortion and administering drugs that facilitated the procedure. He equally denied the charges.
The court was told that the girl had become pregnant after intercourse with a classmate. On September 19, 2019, she went to the Chamalo Medical Clinic in Ganze bleeding, dizzy and in pain. Mr Mohammed attended to her.
Plainclothes police officers stormed the clinic two days later and arrested the girl, Mr Mohammed and two cleaners at the centre. They also carried away the girl’s notes. Prosecutors held that the girl took drugs that caused a miscarriage with the assistance of the clinical officer.
When the matter came to Ms Evelyne Opondo’s attention, she and other organisations had to act. Sitting at the corner office of the Centre for Reproductive Rights in Nairobi’s Kilimani, where she is the senior regional director for Africa, she knows a case that requires urgent action. After all, she has been a lawyer since 2001 and has handled many cases touching on women.
She organised a team of lawyers working with the centre to challenge the charge at the High Court. The case was filed as Constitutional Petition E009 of 2020, seeking the halting of all the charges against the two before the magistrate’s court on grounds that the girl had a right to seek healthcare.
Sitting at the High Court in Malindi, Justice Reuben Nyakundi on March 24 issued a judgment that will be part of Kenya’s conversations on abortion for years to come.
The judge not only threw out the charges against the teenager and Mr Mohammed but he also made a number of observations that have sparked debate. He ordered Parliament to fast-track legislation “that provides for access to safe abortion for women in Kenya and actualises the provisions of Article 26(4) of the Constitution”.
One of his observations was: “Access to safe abortion services is a human right. Under international human rights law, everyone has a right to life, a right to health, and a right to be free from violence, discrimination, and torture or cruel, inhuman and degrading treatment.”
He added: “Forcing someone to carry an unwanted pregnancy to term, or forcing them to seek out an unsafe abortion, is a violation of their human rights, including the rights to privacy and bodily autonomy.”
Lifestyle is interviewing Ms Opondo about three months after the Malindi verdict, and she considers it a great victory — though she is quick to note that the judge merely reiterated what the supreme law says.
“The judge actually upheld what is in the Constitution,” she says. “He took issue with how the police have continued to harass providers and women who have obtained abortion services.”
Ms Opondo adds: “The judge is essentially saying that before a charge can hold in any court of law, there must be satisfaction in the judge or the magistrate and even the DPP that the alleged abortion is not falling within what is allowed by the Constitution.”
This was not the first case her centre has tackled touching on abortion and women’s rights. Their lawyers were in their element in 2015 when there was a case involving the Federation of Women Lawyers (Fida) Kenya and the Attorney-General. The case was challenging a decision by the Ministry of Health to withdraw guidelines for handling abortion care.
The case ended in June 2019 with a declaration by a five-judge bench that the withdrawal of the guidelines, the stoppage of training sessions for health professionals on safe abortion and the threat of legal action against health providers who offer abortion care, was “unlawful, illegal, arbitrary and unconstitutional”.
The centre was also involved in the case facing Jackson Tali, a nurse who had been sentenced to death in 2014 because a woman he was attending to, who had pregnancy complications, died in his care. They convinced the Court of Appeal to set Tali free, with the court saying that there was “mere suspicion” that he played a part in the woman’s death.
Then there was a case in Bungoma where Josephine Oundo gave birth unassisted and on the floor. The case ended in March 2018 with a determination that Josephine’s treatment at the hospital was a violation of her right to dignity. She was awarded Sh2.5 million in damages.
Ms Opondo says such cases are the mainstay of the centre.
“The centre is a legal advocacy organisation,” she says. “We challenge bad laws and policies and hold duty-bearers (to account).”
And she is quick to point out that her organisation is not all about abortion.
“When we talk about sexual reproductive health and rights, it’s not only about abortion. There’s a whole array of things. It’s a continuum of care. It’s right from giving information,” notes Ms Opondo. “Every person, woman or man needs credible and scientific information upon which they can make decisions that are good for them.”
At her position, she is in charge of not only Kenya but also Uganda, Tanzania, Rwanda, Malawi, Nigeria and Zambia.
“I have oversight of the whole of the Africa programme. It means setting and conceptualising the strategy for the Africa region and also seeing the implementation of that strategy,” she says. “I also handle fundraising and advocacy on the issues that we work on.”
Ms Opondo has formerly worked under the Attorney General – which was her first posting after joining the bar – and later worked with Fida from 2004 to 2010.
With a law degree from Pune University in India and a master’s degree in gender and development from the University of Nairobi, Ms Opondo has always been a women’s advocate.
“I live for advocacy,” she told Nation last year. “In women’s rights, everything seems to be controversial. We keep pushing the boundaries.”
For instance in the Malindi case, she has received information that some organisations have filed a notice to be allowed to appeal Justice Nyakundi’s judgment.
“We are ready to go to the Supreme Court. Let this be determined once and for all. So, can they do it quickly?” She says.
Earlier this month, Ms Opondo was selected to be part of the inaugural East African cohort that will be given tools, mentorship and coaching to expand the power and influence of women leaders in global health by WomenLift Health — an organisation headquartered in the US.
Also in the cohort of 30 are Elizabeth Onyango from the Ministry of Health, Alice Oyuko (Save the Children International), Grace Miheso (Action Kenya), Evelyn Gitau (Africa Population and Health Research Centre), among others.
“It’s a whole year’s mentorship programme with the objective of expanding the power and influence of women leaders in global health,” says Ms Opondo. “The idea is to lift or to support us to be influential global leaders who are making change.”
Our morning interview is drawing to an end and Ms Opondo, often stopping to break down the legal jargon, wants us to tell society to stop burying their heads in the sand.
She says adolescents are engaging in sex and matters of reproductive health and rights need to be addressed, not swept under teh carpet.
“Recently, an official of the Ministry of Health said they will arrest providers who give adolescents contraceptives, which is unfortunate because the same ministry has an adolescent policy that allows access to services,” she says.
She goes on: “If we use our own idea of an ideal adolescent who knows nothing, that will be unfortunate and we will be doing a disservice to them. And when you listen to the groups who are opposed to, for example, these contraceptives for adolescents, all they are saying is: ‘Teach them to abstain.’ And we’re saying: ‘There is no one single magic bullet.’”
She says policymakers across Africa should not hide their head in the sand
“When you look at the rate of HIV infection, teenagers are the most affected. When you look at the rates of unsafe abortion, they are the biggest category that is accessing unsafe abortion. And then we are here pretending that these things are not happening,” says Ms Opondo.
She also wants law enforcers to understand the difference between abortion and post-abortion care “because post-abortion care is actually emergency care and emergency care is a fundamental right under the Kenyan Constitution”.
“If you try to stop post-abortion care, women will just die. Nobody will go to a facility,” she says.