#Human Rights

JMM died in June 2018. Born on 5th February 2000, she was just 18 years of age. In January 2014, she'd been admitted to form one at a Secondary School, a day school situated within Keumbu Ward in Nyaribari Chache Constituency. She was staying with her elder married sister.
In 2014, JMM was defiled by an older man. She only realized that she was pregnant when she missed her period for 2 months and started feeling nauseous. She did not tell anyone for fear of being blamed and rejected by the family members.
On 8th December 2014, JMM and an older girl whom they shared a room with took her to a quack. There JMM procured an unsafe abortion. She was assured the foetus would be expelled that evening. It was not. She went back to the quack and he inserted some mettalic obect in her vagina. On going back home she started vomiting and experiencing severe stomach pains accompanied by heavy bleeding. She did not, however, disclose all this to her family, telling them only that she had a headache.
Her relatives called her mum and proceeded to take her to Ibeno dispensary. There JMM told the medical staff she had procured an unsafe abortion. The facility lacked capacity to treat her and provided an ambulance for transfer to Kisii Level 5 County Hospital. JMM was admitted to the ward and the foetus removed. The mum could not tell the nature of treatment received by JMM. She was subsequently discharged and advised to seek treatment at Tenwek Hospital as her kidneys were faling due to the excessive bleeding/haemorrhaging.
Tenwek admitted JMM to the Intensive Care Unit - she could not speak at this point, her Mum narrated to the court. Tenwek did not have dialysis equipment either and they asked the mum to have her transferred to Moi Teaching and Referral Hospital or the Kenyatta National Hospital. They provided an ambulance for transfer but JMM's bill stood at KES. 65,000.
At Kenyatta National Hospital JMM was rushed to surgery for treatment. She commenced dialysis treatment thereafter. The doctors diagnosed that JMM had a septic abortion that had now resulted to Chronic Kidney disease. The hospital bills were piling up. On discharge she was detained as they could not afford the hospital fees.She was moved to a detention room where she slept on a mattress on the floor. She fell ill there and they had to move her back to the ward for treatment - when better she was taken back to the detention room. Through much struggle her Mum managed to pay the fees but there was still need for more money for dialysis treatment as an outpatient. Her Mum and relatives sold most of what they had to try and cater for this treatment. She eventually did bot make it.

Thus lies the story of JMM. JMM died on June 2018.

In court, various systemic failures were brought out by both the petitioners in favor of JMM and incredulously the Ministry of Health too as respondents.

1. Ministry of Health National Guidelines on the Management of Sexual Violence in Kenya, 2nd Edition, 2009 (2009 National Guidelines) - they provide that survivors of sexual violence can access safe and legal abortion (Constitutions Art. 26 (4) and the Health Act section 6.)
2. 2012 Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya (2012 Standards and Guidelines), and the National Training Curriculum for the Management of Unintended, Risky and Unplanned Pregnancies (the Training Curriculum) - They were arbitrarily withdrawn by the Ministry and led to an iminent state of confusion for medical practitioners and facilities on the protocol fro treatment of cases of unsafe abortions, such as JMM's i.e. Post Abortal Care is a form of emergency treatment ( Constitution, Art. 43(2))

We, the undersigned call on the Government of Kenya through the relevant ministrieS including the Ministry of Health, Ministry of Education and Ministry of Gender -
1. TO promote and promote the Sexual and Reproductive Health and Rights of all Kenyans and most especially vulnerable women and girls.

2. PROTECT the women and girls of Kenya from unnecessary death and lifelong imjuries by respecting our Right to the highest attainable standards of health including Sexual and Reproductive Health Care.

3. IN light of the many girls and women we have lost just like JMM to align all laws, policies and straegy documents to the court's direction in JMM's case - Constitutional Petition 266 of 2015

4. THAT the Court’s decisions on reproductive health cases are also instructive. In particular, the recent decision of the court in Petition 266 of 2015 made orders declaring inter alia that–
(i) the memos by the Director of Medical Services withdrawing the Standards and Guidelines and the Curriculum were unlawful, illegal, arbitrary, unconstitutional and hence null and void ab ignition and thereby quashed;
(ii) pregnancy resulting from rape and defilement, if in the opinion of a trained health professional, poses a danger to the life or health of the mother may be terminated under the exceptions provided under Article 26(4);
5. the Ministry is mandated to align it to the following policies already existing within its own frameworks:

a) The Ministry of Health’s National Guidelines on the Management of Sexual Violence 2014 which allow survivors of sexual violence to access emergency pills, post exposure prophylaxis and STI treatment with urgency when they present in healthcare facilities; Page 78 of the Guidelines recognizes that one of the rights that a survivor of sexual violence has is the right to termination of pregnancy and post abortion care.

b) The Ministry of Health’s National Adolescent Sexual and Reproductive Health Policy 2015 which provides for comprehensive Adolescent Sexual and Reproductive Health and Rights

c) The National Menstrual Hygiene Management (MHM) Policy 2019 which provides for and protects rights in relation to Menstrual Hygiene Matters

d) Ministry of Health’s National Guidelines for quality obstetrics and perinatal care 2012 which regulate Post Abortion Care (PAC) including emergency treatment of complications from a spontaneous or unsafe induced abortion.

e) It is also worth noting that as of 2nd March 2020, Reference MOH/ADM/1/1/2 the Ministry of Health piloted the revised Post Abortion Care training package and draft ‘Post Abortion Care Guidelines: A pocket guide for health care providers in Kajiado County. These guidelines must inform the Ministry’s alignment to the Reproductive Health Bill, 2019.

f) Ministry of Health Adolescents Package of care 2014 recognizes that Adolescents are medically eligible to use any method of contraception and must have access to a variety of contraceptive choices.

g) The Ministry of Health has remained committed to facilitating achievement of results articulated in the Kenya AIDS Strategic Framework (KASF). The Framework 2014-2019 demands for provision of key commodities including lubricants and condoms for key populations including the LGBTQ community which needs to be reflected in the Bill as well.

6. THAT the Ministry must stand guided by Section 6(1) of the Health Act 2017 which legally allows access to treatment by a trained health professional for conditions occurring during pregnancy including abnormal pregnancy conditions, such as ectopic, abdominal and molar pregnancy, or any medical condition exacerbated by the pregnancy to such an extent that the life or health of the mother is threatened.

7. THAT among the recommendations reviewed and noted by the Government of Kenya in its recent submission to the Universal Period Review (UPR)(2019 / 2020) includes clause 144.51 which commits to ‘ Immediately implement the High Court judgement in Petition No. 266 of 2015 by reinstating the standards and guidelines on reducing maternal mortality and morbidity related to unsafe abortion and the training curriculum for medical professionals in public hospitals’

8. THAT the Government of Kenya made several voluntary commitments related to the right to health of women and girls of Kenya during the ICPD+25 – Accelerating the Promise which took place in Nairobi, Kenya from 12-15, November 2019, to mark the 25th anniversary of the International Conference on Population and Development (ICPD+25). These commitments are part of an international effort to ensure that the promise of the ICPD Programme of Action and 2030 Agenda are achieved.

9. AWARE THAT health is a devolved function, we further encourage the Ministry to also draw inspiration from county-enacted Maternal Newborn Child Health Acts. Kakamega and Makueni counties are instructive on matters termination of pregnancy, free maternal delivery and access to contraception.

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The THE FORGOTTEN - THOSE WE LOST TO UNSAFE ABORTIONS petition to MINISTRY OF HEALTH, MINISTRY OF EDUCATION, THE PRESIDENT OF KENYA was written by Linda Kroeger and is in the category Human Rights at GoPetition.