Exactly a year ago, an 18-year-old girl (whom, for legal and ethical reasons, we shall refer to as JMM) died.
While her death went unnoticed, her name and experiences will forever be etched in history as one of the petitioners who brought the discussion of unsafe abortions, whose complications claimed her life, to the corridors of justice.
The landmark ruling delivered on Wednesday in the High Court was the culmination of a campaign that began after Nation published JMM’s story on February 2015.
She was, by then, a 15-year-old Form Two student from Kisii who was undergoing dialysis at the Kenyatta National Hospital due to kidney failure as a result of abortion-related complications.
The abortion that cost Sh1,500 was procured by a chemist who used metal rods to try to terminate the pregnancy.
At the time, she told Nation: “I regret what happened, but I am angry because I know that there are other girls who will go to that same chemist and they might die.”
She was one of 88 women in ward 1D receiving post-abortion care, considered an emergency medical intervention.
An unsafe abortion is defined by the World Health Organisation as a procedure for terminating an unintended pregnancy carried out either by persons lacking the necessary skills or in an environment that does not conform to minimal medical standards, or both.
The five-judge bench ruled that while abortion remains illegal according to the law, anyone can walk into a health facility and procure the same on the basis that there are guidelines to support the process.
Judges Aggrey Muchelule, John Mativo, George Odunga, Lydia Achode and Mumbi Ngugi ruled that the manner in which the disputed standard national guidelines on safe abortion were withdrawn was unlawful.
They therefore quashed the decision by the Director of Medical Services to withdraw the guidelines on safe abortion on December 3, 2014.
The judges said that the arbitrary withdrawal amounted to a limitation of the right to health without any reasonable justification.
“The withdrawal of the national guidelines on safe abortion amounts to discrimination, [violated] right to life, violated the rights of women and adolescent girls, violated access to information, consumer rights as well as having access to scientific progress,” they ruled.
JMM had procured an abortion at a local clinic in Kisii without her mother’s knowledge, but when complications arose, she ended up at the Kisii Level Five Hospital where she was required to undergo dialysis.
Since the facility could not offer those services, they transferred her to Tenwek Hospital and then later on to KNH where she died.
The judges took into consideration JMM’s plight and awarded her mother Sh3 million as compensation for physical and psychological harm.
The judges said she suffered horrible despicable harm as well as physical and internal wounds. “The girl was entitled to post-traumatic treatment and comprehensive reparation. It’s clear that post-abortion care was wanting and that she did not go through dialysis services, hence her rights were violated even though no amount of money can erase her pain,” the judges said.
JMM’s mother together with the Federation of Women Lawyers (Fida) and the Centre for Reproductive Health took the Attorney General and the Ministry of Health to court over the decision to withdraw guideline on safe abortion.
While the judges faulted the manner in which the guidelines were withdrawn, they insisted that abortion remains illegal in the country except in the three exceptional circumstances.
“Life begins at conception; we stand by this. Abortion is not permitted and the drafters of the law had a good reason to leave it like this hence, in our view, it is prohibited,” said Justice Mativo.
According to the standard national guideline on safe abortion, the procedure is permitted when a mother’s life is in danger, if there is need for emergency treatment and if one goes through defilement or rape.
Abortion can be procured by a trained health professional – that is, a doctor, nurse, midwife or clinical officer – but not pharmacists or chemists.
The guidelines recognise that abortion is a leading cause of maternal mortality hence regulates post-abortion care. Wednesday’s decision means that abortion is procurable.
The national guidelines for reducing morbidity and mortality from unsafe abortion in Kenya were withdrawn on December 3, 2013 by then-Director of Medical Services Francis Kimani.
The communiqué to counties and four other entities also suspended the National Training Curriculum for the management of unintended, risky and unplanned pregnancies.
The guidelines launched on September 2012 advised health workers on who, where and how to perform an abortion, under what circumstances and to compel the workers to only offer the option to deserving cases as per the law.