Egyptian doctor and long standing women's health advocate, Professor Mahmoud Fathallah, has argued that "women are not dying during pregnancy and childbirth from conditions that are untreatable, they are dying because societies have yet to make the decision that their lives are worth saving."  In 2010 Kenya made the decision and adopted a new Constitution that affirmed, among other things, women’s rights to reproductive health and access to safe abortion. Four years later, Kenyan women continue to die from unsafe abortions - a preventable cause of maternal mortality. The World Health Organization (WHO) has shown that unsafe abortion continues to be a leading cause of maternal mortality and morbidity accounting for approximately 13% of maternal deaths worldwide, with the largest proportion of these deaths occurring in Africa.  In Kenya, unsafe abortion persists as a serious public health challenge and  continues contributing towards maternal mortality. A study by Ipas Africa Alliance in collaboration with the Ministry of Health and FIDA Kenya in 2002, almost a decade before the change in law, found that over 300,000 abortions occurred in Kenya every year,causing an estimated 20,000 women to be hospitalized with related complications. This translated into a daily ‘abortion rate’ of about 800 procedures, and the death of 2,600 women every year.

In 2013, three years after the constitutional change, the Ministry of Health revealed that the number of induced abortions was still increasing and was estimated as being more than 450.000 annually. According to this report, 48 out of every 1000 women of reproductive age in Kenya were carrying out an abortion each year. The Ministry of Health also found that more than 150,000 women received treatment in hospitals due to complications arising from abortions, and almost 60,000 of them presented with severe complications including high fever, sepsis, shock and organ failure. The report did not, however, reveal the number of women who died from complications arising from unsafe abortions.

The Kenya National Commission of Human Rights (KNCHR) similarly tackled unsafe abortion as a cause of maternal mortality in its 2012 public inquiry. Its findings revealed that lack of access to safe abortion services in Kenya resulted in many women resorting to crude and unsafe methods. Those who testified during the inquiry described unsafe methods that were used to terminate unwanted pregnancies - including taking traditional herbs, high doses of anti-malarial drugs, inserting sharp objects or ingesting dangerous substances. These methods caused the deaths of many women or permanently damaged their uterus; with countless women reporting inability to conceive again.

With a constructive change in law four years ago, why are Kenyan women increasingly facing the life-threatening complications of unsafe abortion? It is important to look beyond individual dynamics to consider the structural factors affecting access to, and positive experiences, within safe abortion services. This includes the role that the Kenyan state plays in ensuring effective implementation of Article 26(4) of the Constitution, which allows safe termination of pregnancy to be conducted by trained medical professionals when a woman needs emergency treatment, or when her life or health is in danger. Evidence from the KNCHR report demonstrates that the Kenyan government has failed to address the well-known barriers that perpetuate high maternal mortality from unsafe abortion. Key among these factors are socio-cultural barriers, low levels of awareness by women of the laws providing access to safe abortion, religious perceptions, and stigma perpetuated by both the community at large and health care providers. The KNCHR report also identified particular categories of professionals who have the potential to be barriers, and who need enhanced capacity building in order to promote access to safe abortion services. Many medical providers and police officers for instance, are unsure of whether abortion is legal or illegal in Kenya. As a result, various health facilities avoid administering the procedure, even when a woman qualifies under the provisions of the Constitution, for fear of being prosecuted and imprisoned.

Policing and maternal death

Law enforcement officers and medical service providers are critical decision makers here. Many police officers lack basic knowledge of the concept of post abortion care which is an emergency medical treatment that must be administered in order to save a woman’s life after an unsafe abortion. In many instances, police officers are not aware of the medical risks that incomplete abortions pose to the health of the woman, and as a result often incarcerate them for days while awaiting for their trial to commence. It is as a result of this tendency that a 40-year-old woman in Murang’a- a town close to Kenya’s capital, Nairobi, died in police custody after being arrested for attempting to procure an abortion. Similarly, in the recent case of Republic v Edna Achilla Omale where a teenage girl and a doctor were both arrested and charged with ‘conspiracy to commit a felony known as abortion’. It was only after the magistrate took notice of the girl’s deteriorating health condition that the police officers were ordered to take her for medical care.

Tense relations between medical providers and law enforcement officers also contribute to these preventable deaths. In recalling his arrest in 2004 on charges of murder, Dr John Nyamu, a gynecologist, argues that prior to the enactment of the 2010 Constitution, many health providers were harassed regularly by local police. Bribery was common and providers kept paying off the police in order to buy their freedom. The sustained environment of fear and bribery, and the continuous harassment of health providers and women in need of safe abortion services even when they, qualify for services under the Constitution’s Article 26(4), is leading to increasingly preventable deaths.

Using religion to block rights

Religious belief omongst policy makers also plays a role in the failure to prevent unsafe abortions. The influence that Parliament yields, in terms of making favourable laws that would give life to Article 26(4), has been reduced because many Parliamentarians remain influenced by their religious and cultural beliefs when it comes to legislating on this issue. The Parliamentary Hansard records that  Article 26(4) of the 2010 draft Kenyan was passionately debated, with many Members of the House vehemently opposing the clause. The then Assistant Minister for Cooperative Development and Marketing, Linah Jebii Kilimo, is cited as arguing that abortion, whether safe or unsafe, was a foreign concept unknown to Kenyans. Hon Kilimo is quoted as supporting the exclusion of abortion in the draft constitution arguing that “the issue of abortion should not be permitted. The Bible says that cursed is the land that receives innocent blood. So we should not allow a curse to come into our land by allowing abortion… It is not an issue that is Kenyan. I think it is foreign.”

These difficulties have been exacerbated by the recent suspension of the Standards and Guidelines on Reducing Maternal Mortality and Morbidity from Unsafe Abortion. The Guidelines, which were launched in September 2012, were withdrawn by the Director of Medical Services through a letter addressed to all 47 County Directors of Health on 3rd December 2013, arguing that there was need for wider stakeholder consultation on the contents of the document. The Guidelines are the only existing document for health professionals addressing the conditions needed in order to procure a safe abortion. Their withdrawal creates a gap which is fuelling questions on how to safely terminate a pregnancy, who qualifies for safe termination, where safe procurement should be procured, and when a doctor can lodge a conscientious objection.

The need for government action

To date, the government has failed in protecting women’s right to life and the best attainable standard of health. This is evidenced by the increasing number of women who were hospitalized with severe abortion complications as per the Ministry of Health study findings of 2013.  The government can, however, improve the situation by organizing civic education forums on reproductive health all over the country, providing a platform for the Ministry to educate communities on the magnitude and consequences of unsafe abortion, and also dispel the myths and misconceptions that many people have on the use of contraceptives. Furthermore the government must ensure that programmes on contraceptive use are initiated in each region in the nation and sustained in order to deal with the high unmet need for contraceptives.

Parliament must enact laws that will give life to the provisions of the Constitution. Such laws ought to distinguish between safe and unsafe abortion, define who a trained health professional is, determine when, where and how safe abortion can be performed, and indicate the circumstances under which a woman qualifies for a safe abortion. These laws would give clarification to police officers and medical providers, and fill in the gap that has been created by the suspension of the abortion Standards and Guidelines by the Director of Medical Services.

It is ironic that the government has allocated post-abortion care wards in many public hospitals. This allocation is a recognition that unsafe abortions do occur in the country, and that women who have complications from such procedures seek medical attention in these hospitals. As an alternative, the government ought to shift its focus to preventing unsafe abortions, rather than addressing the consequences afterwards. The government must take the lead in breaking the silence on this deadly yet preventable cause of maternal death. It will be remembered that as a result of the high number of deaths from HIV/AIDS in the early 90’s, the government declared HIV a national disaster in 1999, initiated vigorous media campaigns, and enacted numerous policies that were geared towards reducing the HIV prevalence rate in Kenya and reducing stigmatization towards those who were living with the virus. Today, society has embraced people living with HIV, and the prevalence rate has gone down. Likewise, the government needs to recognize that unsafe abortions are preventable, and that it is the role of the state to educate its citizens of the consequences of unsafe abortion, ensure proper medical care for the young girls in need of post abortion care, guarantee contraceptive supply and issue educational information on sexual and reproductive health rights. Through such initiatives, we can perhaps be assured of raising a generation of responsible, informed, healthy citizens, and a government that remains true to its Constitution.