What you need to know:
- A 2020 study found that unsafe abortion is responsible for the deaths of nearly 2,600 women and girls in Kenya every year - seven daily.
- Clinical officer says abortion is the last resort for a medical professional.
Samson Mwita, a clinical officer, was in the middle of an abortion procedure at Mwera Medical Centre in Eastlands, Nairobi, when police officers burst into the operating room.
“The patient I was operating on was a minor of 16 years who had been defiled. Since she was in her second trimester, I had initiated an induction but the police officers interrupted me. They stopped the procedure and told me that what I was doing was against the law,” Mr Mwita tells Nation.Africa.
Before he was arrested, Mr Mwita says, the officers requested a Sh500,000 bribe from him and the girl’s mother.
“We told them that if they wanted to arrest us they should go ahead. I knew what I was doing was not illegal. I am not a quack. I am a licensed clinical officer and the facility was also licensed,” he adds.
The police officers took the girl to Mama Lucy Hospital, where the foetus died.
Mr Mwita and the girl’s mother were charged with procuring an abortion contrary to the Penal Code. They were facing up to 14 years’ imprisonment if the court found them guilty. However, on Monday last week, after a five-year court battle, the charges were dismissed by a court in Makadara, Nairobi.
The dismissal came at a time when the world was marking International Safe Abortion Day, under the theme: ‘Abortion care is healthcare, and health is a human right.’
Contrary to popular belief that abortion is absolutely illegal in Kenya, certain provisions allow the procedure under special circumstances. Martin Onyango, the advocate who represented Mr Waita and the girl’s mother in the case, explains the circumstances.
“The Sexual Offences Act provides [remedies] for the crime of defilement, and the guidelines developed by the Minister for Health state that a survivor of sexual violence, including defilement, is entitled to terminating the pregnancy. In doing so, the healthcare provider should treat the survivor with dignity and compassion.”
He also references Article 26(4) of the Constitution that states 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.
It was on this basis that Mr Mwita accepted to perform the procedure.
“Health is not just the absence of illness. I looked at it from a broad perspective. How would the pregnancy affect the girl if she were to carry it to term? I could see that she was not only physically affected after losing a lot of weight despite being pregnant, but her mental health was also not okay. Her social health was also affected. She was also experiencing stigma in school. Based on those considerations, I decided that her health was compromised and she needed an abortion,” Mr Mwita says.
Nonetheless, he clarifies that abortion is the last resort for a medical professional.
“Before performing an abortion, we try alternative remedies such as counselling or advising the mothers to carry the foetus to term until when they can give up the child for adoption. Abortion is only an option when other measures cannot work,” the clinical officer says.
He also cites the risk of denying women an abortion, saying it prompts some to get the service from quacks.
“Women die from unsafe abortions or get permanent complications to the extent that they can never give birth again. When you consider all these factors, you would rather provide safe abortion services within the confines of the law rather than deny a woman abortion services.”
His sentiments are corroborated by a 2020 study conducted by the Centre for Reproductive Rights, which found that unsafe abortion is responsible for the deaths of nearly 2,600 women and girls in Kenya every year, translating into seven every day.
Commenting on the dismissal of the case, Nelly Minyasia, the executive director of Reproductive Health Network Kenya, says the case has given healthcare providers assurance that they are operating within the law when they provide abortion services.
“It also creates an enabling environment where women and girls know that in case of any complications, they can access service because they are protected by the law.”
Even though he experienced a lot of harassment during the pendency of the case, with some people even referring to him as the ‘abortion doctor’, Mr Mwita says as long as there is informed consent from his patients and he is operating within the law, he will continue to provide safe abortion services.
“I do not believe any woman can get pregnant and terminate without good reason. A woman who seeks an abortion does so because they have a genuine health problem. They would have considered all options and decided an abortion is the best measure to take,” he says.