Kenya pins hope on EALA after MPs twice aborted reproductive health bill

As Kenya grapples with a teenage pregnancy crisis with no reproductive health legislation, the East African Community Sexual and Reproductive Health (SRHR) Bill 2021 will be subjected to public participation later this month.

The bill, sponsored by Kennedy Mukulia, South Sudan’s representative in the East Africa Legislative Assembly (EALA), is anchored on Article 118 of the East African Community (EAC) Treaty, under which member states committed to providing reproductive health to their citizens.

Among other things, it provides age-appropriate SRHR information and services, seeks to reduce newborn, child and maternal mortality, unsafe abortions, HIV and other sexually transmitted infections and early unintended pregnancies.

It also prohibits harmful practices such as forced sterilisation and female genital mutilation.  

Former senator Judith Sijeny, now Kenya’s envoy to The Hague, sponsored the Reproductive Health Bill 2014, which would have provided guidance on protecting reproductive rights but the Senate rejected it.

The decision was unfortunate, said Stephanie Musho, a human rights lawyer, reproductive health rights expert and an Aspen New Voices senior fellow. 

“Unfortunately but unsurprisingly, it was shot down on the floor of the House by a male-dominated legislature,” Ms Musho said.

“There was also a lot of misinformation [advanced] by the opposition and an obsession with a clause on abortion that did not speak to abortion in any stronger terms than it is provided for in our Constitution – which I should add remains the supreme law of the land.”

She said opposition to the legislation “is mainly driven by Western-funded groups that work to negate all the gains made towards health under the guise of Christianity”.

In 2019, Nakuru Senator Susan Kihika sponsored a similar bill that also stalled in the House based on a financing technicality.

The Kenya Conference of Catholic Bishops and 26 pro-life groups called for the withdrawal of the bill, according to information on a Vatican website.

“As bishops, we respond to our belief that regards abortion as the intentional killing of human life,” read the bishops’ official statement.

“The groups listed various concerns regarding the proposed bill arguing that it is pushing for illegalities and practices that are not acceptable as they will make abortion on demand legal contrary to the spirit of our Constitution of 2010 and the penal code.”

The bishops added: “The proposed law pushes for surrogacy without offering a clear framework on how this can be practiced” and leave “loopholes for same-sex unions and related practices which are currently illegal in the country”.

But Ms Musho said that “in terms of legislation, there is no framework that speaks to surrogacy, which is why the issue was included in both bills that were aborted in the first place”.

“[This] area at the intersection of law and medicine continues to operate without a comprehensive legal and policy framework emanating from statute law. Worse still is that policies are often drafted and withdrawn at the whim of Health ministry officials, leaving Kenyans at the mercy of individuals and their biases,” she said.

Ms Musho says she appreciates that the EALA bill seeks to prevent newborn, child and maternal mortality.

“Consider in Kenya alone, seven women die from complications arising from unsafe abortion, despite the Constitution providing for certain instances where it is permitted,” she said.

The Ministry of Health released a report recently stating that 98 girls contract HIV every single week. 

Kenya also reported over 45,000 teenage pregnancies in a five-month period this year alone, about 700 unintended teenage pregnancies a day.

On female genital mutilation, Ms Musho said that the practice continues to happen despite attempts to end it.

“Without legislation and structured frameworks, these efforts are only as good as what they are – event launches. If current trends continue, this goal will not be attained,” she said.

“There is also the issue of forced sterilisation that is unfortunately and wrongly being used as a means of reducing HIV infection compounds. Advancements in science and technology have proven that HIV-positive women can give birth to healthy, HIV-negative babies.”

Though human rights groups, including the Kenya Ethical and Legal Issues Network (KELIN), have sued on the issue and won, it is hard to get court rulings implemented by government agencies, which is why experts say the EALA bill is Kenya’s only hope.

“This is driven by lack of respect for the rule of law and no adherence to the doctrine of separation of powers for checks and balances in government. The result is impunity,” Ms Musho said.

“The Constitution, in Article 2 (5), states that international law will form parts of [Kenyan] law and therefore, if the bill passes, the government of Kenya will be under obligation to adhere to it.

“In fact, Section 27 (1) of the law provides for the reporting and monitoring of the implementation of the bill – and it provides that every partner state would have to report to the secretary-general of the EAC on the status of implementation every two years.”

The secretary-general would then submit a report to the EALA on each partner’s progress, meaning that partner states can then hold each other accountable to their commitments and non-compliance. One state can bring legal action against another at the East African Court of Justice.  

Ms Musho argues that this accountability mechanism is exactly what the Kenyan government needs to finally enact and implement legislation and progressive policy on sexual and reproductive health.

“As the bill comes up for public participation on June 26, 2022, it is important that Kenyans and all other persons in the East Africa Community fully understand the issues articulated in it and thereafter submit informed memoranda to EALA,” she said.

“It is important that we pass the bill and put an end to preventable diseases and deaths, reduce and ultimately [end] the economic costs that come with the aforementioned gaps in law and policy and their implementation.”