Such strength has already been on display through the gallant efforts of our security officers whose response saw 663 students rescued even as some of the officers made the ultimate sacrifice and lost their lives in the line of duty. In the aftermath of the attack, the indomitable spirit of the Kenyan people has been illustrated through various forms of support and donations taken to the families at Chiromo Mortuary, Kenyatta National Hospital and Nyayo National Stadium. We also compliment the Kenya Red Cross Response teams that were on the ground soon after the attack working closely with other command structures within the government and deploying ambulances and paramedics at the scene. We must also commend the spontaneous efforts by Kenyans to ensure that the memory of the victims is celebrated and not forgotten, most particularly through the “#147notjustanumber” campaign that is now a global discussion online, and the vigils that have accompanied it.

We must however reflect on the challenges we have encountered in combating this terror threat and the Commission wishes to state as follows:

1.  In addition to the immediate security threat, the government must also safeguard against the social and economic isolation of the Northern Kenya region as it bears the brunt of these terrorist attacks. The Garissa attack comes in the wake of similar incidences in Mandera County that had already seen an exodus of teachers who had cited the region as being unsafe. In similar fashion, Garissa now faces the indefinite closure of the only University College in the region. This has the huge potential of curtailing the right to education for most families. These actions are a huge setback for a region that had only begun to emerge from a history of social and economic marginalization through the promise of devolution. With the education sector already in peril, it would be catastrophic if other public services such as their already fragile health sector were to follow suit. It is imperative that Kenyans are able to exercise their freedom of movement and conscience and that the government guarantees the security of individuals in every part of the Country.

The government must enhance its security presence in these counties that have been consistently targeted by Al Shabaab and give an assurance to ALL residents of their safety. This must however be reinforced by a concerted effort in conjunction with local leaders to counter the narrative of ethnic and religious division that is being propagated by Al Shabaab.

Most importantly, the government must immediately follow through on the President’s pledge in his State of the Nation Address for “strategic initiatives in marginalized and at-risk regions and populations of our country”. We call on the wider Kenyan public to stand in solidarity with our brothers and sisters in this region and frustrate all those who seek to divide us through fear.

2.  The government in undertaking counter-terrorism security operations must uphold all human rights obligations and abide by the Constitution. We must remember that Al Shabaab hopes to undermine our governance structures by playing into our fear and provoking us into measures such as collective punishment and discrimination against targeted groups. The government must instead embrace an inclusive and consultative approach that establishes a partnership with the public in as far as a counter-terrorism strategy is concerned. All investigations and prosecutions must be done in accordance with the law so as to curb any allegations of victimization or persecution that Al Shabaab may wish to rely on.

3. The government must fully commit to and invest in comprehensive security sector reforms governed by the rule of law. Such reforms include: a clear coordination framework for all security agencies that is respectful of the Constitution and related laws; the proper allocation and use of resources in responding to security threats; and a rapid improvement in the welfare of security personnel entrusted to keep us safe. The President’s recent directive on police recruitment unfortunately undermines these reforms by creating a dispute with the Judiciary and other State organs rather than maintaining a focus on the terror threat.

We must pay tribute to our fallen comrades by reaffirming our Kenyan unity and way of life based on the values of human rights, equality, freedom, democracy, social justice and the rule of law.

Atsango Chesoni

Executive Director the Kenya Human Rights Commission (KHRC)

| END

The meeting agreed that the ACHPR was well equipped to address transitional justice concerns courtesy of the normative framework provided by the African Charter on Human and Peoples and Rights. The challenge lies in how to purposefully channel the mandate of the commission towards realizing the right to a remedy and reparations for gross human rights violations. The study should yield practical policy options for the Commission towards the same.

The meeting resolved to ensure that the different contextual experiences with transitional justice currently unfolding on the continent would be harnessed not only for the ACHPR study, but would be used to infuse the public voice in other governance processes such as the Africa Union Transitional Justice Framework (ATJF) and Africa Governance Architecture (AGA).

It was also agreed that participants would work to enhance the promotion and protection mandate of the ACHPR through active and increased engagement with it as civil society. To this end, KHRC committed itself to facilitate capacity enhancement initiatives that would encourage other civil society organizations to engage with ACHPR and also expand spaces for dialogue between civil society and other AU organs.

KHRC contributed as part of a six-member advisory committee to the study appointed by the African Commission to enrich its research processes and validate its findings. KHRC as an advisory committee member to this study endeavoured to infuse Kenya's contextual experience with transitional justice and advocate for a more focused and resourced African Commission on this issue.

The other members to the Advisory Committee are: The Centre for the Study of Violence and Reconciliation of South Africa which is also the secretariat for the study; The Egyptian Initiative for Personal Rights (EIPR); Fambul Tok International, Sierra Leone; International Peace Institute (West African Research Fellow); The Refugee Law Project from Uganda and; the Zimbabwe Lawyers for Human Rights.

The President’s third State of the Nation Address marked a pivotal turning point in Kenya’s transitional justice agenda. Acknowledging our tragic history of mass human rights violations, the President:

• Called for Parliament to process the Truth, Justice and Reconciliation Commission (TJRC) report;
• Instructed the Treasury to establish a fund of Kenya Shillings 10 billion for restorative justice and;
• Took the unprecedented step of making an apology on his own behalf, that of his government and on behalf of all past governments for historical violations.

This is arguably the boldest political commitment to addressing historical injustices in recent memory. However more must be done if it is to prove meaningful to victims. The President must exert his political influence on Parliament to ensure they enact a comprehensive implementation framework for the TJRC report. The framework must respond to all findings and recommendations of the report, ensure the full participation and consultation of victims, maintain transparency in its operations and have accountability to the public on the progress made in implementing the report. As party leader of the majority Jubilee Coalition in Parliament, the President must ensure that the parliamentary debate does not lead to editing of the TJRC report or mutilation of its findings and recommendations.

The President’s embrace of restorative justice is indeed welcome but requires clarity. The proposed fund though necessary, must be based on a clear understanding of who the victims are and what their needs are. We would urge the President to commit to the reparations policy outlined in the TJRC report as the basis for utilizing this fund. The reparations policy identifies restoring the dignity of victims as a key objective, outlines the types of reparation and provides a categorization of victims that allows for a systematic and realistic approach to processing claims. Lessons must be learnt from past experiences such as Operation Rudi Nyumbani.

The apology offered by the President is a significant step forward but must be owned by all State organs, especially those the TJRC report has called on to apologize specifically alongside the President such as the Kenya Defence Forces and Kenya Police Service. More needs to be done to specifically recognize the various victim groups and their experiences through memorialization as part of the reconciliation process. The apology must translate into a reflection on the progress made in reforming State institutions previously accused of committing human rights violations. Are we assured of non-repetition and a change in the moral character of these institutions as the apology suggests?

The President has reawakened a yearning for justice among victims of Kenya’s historical injustices and invited the Kenyan public to imagine that true reconciliation and cohesion is indeed possible in our lifetimes. KHRC will remain vigilant in ensuring that the government maintains fidelity to the restoration of dignity to victims that embraces the approach of “nothing for us without us”. Restorative justice exercises a sacred trust with victims that must not be betrayed. END

For media inquiries please contact:

Audrey Kawire Wabwire | Communications Manager | awabwire@khrc.or.ke

Sexual violence by duty bearers and those in positions of authority has often been let to fizzle out once public outrage on the issue dies. Regrettably, indecent assault, sexual and gender based violence and related violations have not been adequately addressed. There are hundreds of cases of this nature that underscore how dire the situation is becoming. More must be done to protect women and girls from sexual violence, and to ensure that they are not made vulnerable in the hands of those in public leadership.

These violations have gone unaddressed despite the existence of strong legislative framework such as the Sexual Offences Act 2006 and other laws of Kenya which criminalize all forms of sexual violence. Moreover, Kenya has ratified and domesticated several regional and international human rights instruments such as the Convention on the Elimination of Discrimination against Women (CEDAW), The Maputo Protocol to the African Charter on Human and People’s Rights and Zero Tolerance to Violence against Women for the Great Lakes Region, among others which offer the requisite legal obligations of the State. These affirm the State’s responsibility to protect women and girls from sexual and gender based violence.

This responsibility has been affirmed and further emphasized by the commitment by the His Excellency the President Uhuru Kenyatta in his support for women’s rights when he launched the “He for She” campaign in Kenya on 24^th November 2014 saying

“I am He For She because gender equality is not only a woman’s issue, it is a human rights issue that requires my participation. I as the President of Kenya, I commit to take action against all forms of violence against women and girls.”~ Uhuru Kenyatta 24/11/2014 [emphasis added]

Despite the existence of these legal and political commitments we have in the recent past witnessed a disturbing increase in reported incidences of sexual violence against women and girls in Kenya:

• In February this year, it was widely reported by the media that Juja Member of Parliament, Francis Waititu was allegedly suspected of sexually harassing a female member of his staff, including by sending her sexually offensive messages. The inaction by relevant offices against this MP is heavily accentuated by a disturbing and deafening silence on the issue.
• In the last couple of days, a Female Member of Parliament on official mission with the President of the Republic of Kenya reported that she had been subjected to indignifying and violent sexual advances from a fellow male Member of Parliament. Again, there has been resounding silence and inaction on the matter!
• The Members of Parliament have not spared the female law enforcement officers either. A traffic police woman in Nakuru was allegedly assaulted by a member of parliament resulting in actual bodily harm and there is still significant silence on the same.

These are just but a few alarming reports that have made their way to the media. Increasingly, there has been a worrying trend of rape and other sexual violence being meted against women and girls in Kenya, with little or no action taken to apprehend and prosecute the offenders and safeguard the rights of women and girls. Most unsettling is that on Saturday the 21^st March 2015, a helpless mother of two allegedly came face to face with this monster of sexual violence occasioned against her by the Imenti Central Member of Parliament. The sexual violations and acts of indecent assault included:-

1. The Member of Parliament with the help of his personal assistant administering a substance with intent to subdue her;
2. Trespassing on her privacy by instructing his private medical practitioner to forcefully conduct an HIV test against her will;
3. Physically assaultingher, causing actual bodily harm; and
4. Engaged in the heinous act of rape,
5. To make matters worse the alleged perpetrator has embarked on a mission to intimidate and compromise the survivor, her family and possible witnesses in the case.
6. To exacerbate the matter. The MP continues to receive preferential treatment while in custody. i.e. having dinner with the top investigating officers, not spent a single night in custody, driven around the city in a convoy of police vehicle supposedly other tight security ( Daily Nation, Thursday, March 26, 2015 Page 4)

Unfortunately, this is a familiar story for a number of women who have been the innocent victims of sexual violence in Kenya. Many women continue to cry for justice without the prospects of ever receiving any. A woman’s dignity and bodily integrity is priceless! Obtaining justice for the indignifying violations remains a mirage for many victims! Kenya is slowly and painfully etching out a reputation of being an unsafe country for women and girls with rapists and defilers walking scott-free. It is abominable that members of Parliament who are mandated with passing laws that safeguard our rights and better our societies would behave in such a DISHONORABLE manner!

The prevalent culture of the dehumanization of women as sexual objects for men’s gratification along with the bizarre myth, attitudes and assumptions that men cannot control their sexual desires must be fervently abhorred.

We DECLARE THAT ENOUGH IS ENOUGH!!! to All acts of violence against women and girls and STATE that full responsibility and action to ensure their safety and protection of their human rights is upheld!! In so doing, we uphold our humanity with the hope that we can create a better world for us ALL – where we treat each other with dignity and respect, regardless of age, class, sex, ethnic or dress as provided in article 27 of our Constitution.

The Government of Kenya must live up to its role and discharge its obligations under national, regional and international law and effectively protect women and girls from sexual and gender based violence. It is imperative that the Government ensures that our women and girls are safe in every part of this Country.

We therefore demand that:-

• The Inspector General of Police swiftly moves to comprehensively, independently and objectively investigate these allegations and make recommendations for prosecution of the perpetrators;
• The Speakers of the National Assembly- Parliament and Senate uphold integrity through development of a code of conduct, including a sexual harassment and gender based violence Policy regulating the conduct amongst the members of the national assembly, staff and officials. Any suspected member of the National Assembly should be suspended from their duties until they are cleared of the allegations by a court of law.
• The JudiciaryOperationalizes the Sexual Offenders Register and make it accessible
• The Judiciary further establishes a Sexual Gender Based Violence Court within the judicial system to provide privacy and expedite the cases on sexual violence in the shortest time possible in a safe environment.
• The Director of Public Prosecution to establish a gender based violence department within his office that will facilitate expedition of cases of crimes of sexual violence ensuring the observance of the rule of law.
• The Cabinet Secretary of the Ministry of Devolution and Planning, to facilitate full implementation and mainstreaming of all sexual and gender based violence policies and frameworks across all Government bodies at both the national and county levels.
• We call upon the Commission on Administrative Justice, Public Service Commission, Ethics and Anti-Corruption Commission, to expedite their role in promoting national values and principles by ensuring all public officials, accused of sexual crimes relinquish their positions until their cases are heard and determined. Any person whose name appears in the sexual offenders register must not be cleared for any public office, whether appointive or elective. .

We call for the Media to conduct comprehensive awareness, sensitization and empowerment campaigns to help prevent the gross human rights violations on women. This should include information on how to report cases, where to report cases and every person’s role in protecting women from these brutal attacks by callous individuals.

We also urge the public to be vigilant and break the culture of silence around these atrocities by reporting all cases of sexual defilement, abuse and violence of women, girls, children within families, schools, public spaces and the community at large.

May justice be served! Pamoja Tutetee Haki!

Endorsers: attached

1. Women’s Empowerment Link (WEL)
2. Kenya Human Rights Commission (KHRC)-
3. FIDA Kenya
4. Center for Rights Education and Awareness(CREAW)
5. AKILI DADA.
6. Maendeleo ya Wanawake
7. African Women Child Features(AWCFS)
8. International Rescue Committee
9. Action Aid International Kenya
10. Girl Child Network
11. Association of Media Women In Kenya (AMWIK)
12. Association of Professional Women with Disabilities
13. FEMNET
14. Youth Agenda
15. Inuka

Corruption has behaved like a cancer that has spread beyond economic sabotage, and ventured into the destruction of our democratic system. It has derailed our aspirations for national cohesion. The failure to demonstrate progress in the fight against corruption points to a political leadership that has not learnt anything from the 2007-08 Post-Election Violence. The Kenya National Dialogue and Reconciliation process led by Koffi Annan, and including most of today’s political leaders identified the lack of transparency, accountability and impunity as one of the root causes for the conflict. Kenya will inevitably return to violence if the disparities between the rich and the poor are allowed to subsist in the face of continued looting of public resources.

KHRC hereby calls on the President to display political responsibility by immediately purging his Executive of officers accused of corruption rather than shuffling them within government. The Ethics and Anti-Corruption Commission and the Director of Public Prosecutions must swiftly conclude all pending investigations and mount proper prosecutions in the courts of law. Kenyans can no longer be subjected to endless procrastination when dealing with the so-called ‘high-voltage files’. Kenyans, as owners of sovereign power must challenge their political leadership and demand that they comply with a higher standard of leadership and integrity. KHRC undertakes to confront errant leadership through legal channels and galvanize the public to demand accountability at all levels of government.

We appeal for a return to the enthusiasm and sense of purpose that saw Kenyans enforce citizen arrests against officers who would dare take bribes. Corruption is at the heart of what ails our country and if it is allowed to persist, it will consume us all.

Media Inquiries: Audrey Kawire Wabwire | Communications Manager | Kenya Human Rights Commission | Opposite Valley Arcade, Gitanga Road | P.O Box 41079, 00100 GPO, Nairobi, Kenya | Tel. +254-020-3874998/9 3876065/6

Entitled “Privacy in the Digital Age,” the convening examined where we are now and where we are going in wake of the Snowden revelations, which revealed the enormous scope of both US and international government surveillance.

The idea behind the INCLO gathering was to review challenges and compare strategies for reining in surveillance regimes and promoting privacy protections at the national level, and to explore more systematic involvement for INCLO on informational privacy issues at the national and international level.

The convening opened with a briefing by Edward Snowden, who joined the group via Skype, and spelled out the dangers of the far-reaching surveillance powers now being deployed not only by the US but by many other countries as well.

As part of the two-day conference, INCLO organized two panels that were open to the public. The first, entitled “What Would U.S. Surveillance Reform Look Like and Do We Need It?” was a discussion between Jameel Jaffer, Deputy Legal Director of the ACLU, and Robert Litt, the General Counsel of the U.S. Director of National Intelligence. The panelists agreed that in order to maintain trust in the government, the public needs information about the government’s surveillance authorities and activities, though they fundamentally disagreed on the adequacy of existing oversight mechanisms.

The second public panel, “How the Snowden Revelations are Reshaping Global Perceptions of Privacy & Big Brother: Perspectives from Around the World,” featured President Emeritus of the Open Society Foundations, Aryeh Neier, moderating a discussion with the Brazilian Ambassador to the United Nations, Antonio de Aguiar Patriota and representatives from civil liberties groups from Hungary, Germany, Brazil, the UK and the US.

The panel addressed, among other questions, how their governments, the public and technology companies reacted to the Snowden disclosures. The speakers agreed that the revelations have created momentum to push for reform and limit mass surveillance.

Participants in the conference included the following INCLO members: American Civil Liberties Union, Association for Civil Rights in Israel, Canadian Civil Liberties Association, Centro de Estudios Legales y Sociales, Hungarian Civil Liberties Union, Irish Council for Civil Liberties, Kenya Human Rights Commission, Liberty, Legal Resources Centre, and also Antivigilancia, Columbia Law School, the Ford Foundation, Italian Coalition for Civil Liberties, Matrix Chambers, Open Society Foundation, Privacy International, Renewable Freedom Foundation, Stiftung Neue Verantwortung, Transnational Institute, US Office of the Director of National Intelligence and University of Pennsylvania.

For Media booking contact:

Audrey Wabwire/Communications Manager/ Email:awabwire@khrc.or.ke

In January 2015, AUPSC members decided to defer consideration or publication of the African Union Commission of Inquiry on South Sudan (AUCISS) report because they thought it would obstruct the achievement of a peace agreement. But as a 5 March deadline for reaching a final agreement has now passed, the organizations renewed calls for the report to be published.

“A culture of impunity has fuelled South Sudan’s conflict and emboldened combatants to target civilians, commit sexual violence, destroy and loot civilian property without fear of legal consequences,” said Arnold Tsunga, Africa Director of the International Commission of Jurists. “The release of the report could help deter further atrocities, by bringing to light what has taken place and making more real the prospect of accountability,”

For over a year, parties to the conflict have demonstrated disregard for international human rights and humanitarian law. UNICEF recently reported the forced recruitment of what it believes may be hundreds of children in Upper Nile state to serve in a government-allied militia group.

The AUCISS had the mandate to investigate human right abuses and violations in South Sudan and make recommendations on the best ways to ensure accountability, reconciliation and healing.

“The Government and the Sudan Peoples’ Liberation Movement-In Opposition (SPLM-IO) have already agreed that a comprehensive system of transitional justice—including truth and reconciliation, criminal prosecution, reparations and institutional reforms—is necessary for achieving sustainable peace,” said David Deng, research director with South Sudan Law Society. “The AUCISS recommendations could make an important contribution to the design of such processes.”

In their letter to AUPSC members, the organisations urged the immediate publication of the report in order to honour the expectations of victims and witnesses of atrocities who recounted painful experiences in order to contribute to a more complete record of the conflict.

“Hundreds of people took time to speak with members of the AUCISS because they thought the report could make a positive contribution to the future of South Sudan. Shelving the report demonstrates a complete disregard for the individuals whose testimonies, ideas, and opinions were used to compile the report,” said Frans Viljoen, Director of the Centre for Human Rights at the University of Pretoria.

The seventy-six organizations reminded the PSC of its obligations under the PSC Protocol to promote “good governance and the rule of law, protect human rights and fundamental freedoms, respect for the sanctity of human life and international humanitarian law, as part of its efforts for preventing conflicts.”

“We urge you to prove wrong those who doubt the commitment of the AU to justice and accountability by receiving, considering, and immediately publishing the AUCISS report,” the letter concludes.

Background 

The PSC is the AU’s standing decision-making organ for the prevention, management and resolution of conflicts. Its current members are Algeria, Burundi, Chad, Equatorial Guinea, Ethiopia, Gambia, Guinea, Mozambique, Namibia, Niger, Nigeria, Libya, South Africa, Tanzania, and Uganda.

Only two weeks after the outbreak of violence in Juba in December 2013, the PSC called on the African Union Commission to establish a commission of inquiry. In March 2014, Chairperson of the AU Commission, Dr. Nkosazana Dlamini-Zuma presided over the swearing in of the six members of the AUCISS: former president of Nigeria, Olusegun Obasanjo (the chairperson), Sophia A. B. Akuffo, Mahmood Mamdani, Bineta Diop, and Pacifique Manirakiza.

In June the Commission submitted an interim report to the PSC and was granted a three month extension of its mandate to complete work. In its June interim report, the AUCISS promised that the recommendations to be included in its final report would contribute to finding lasting solutions to the crisis in South Sudan.

The PSC heads of state were scheduled to consider the AUCISS report on 29 January 2015, but instead decided to “defer consideration [of the report] to a later date.” The chairperson, Olusegun Obasanjo was not given an opportunity to present the report’s content and the report was not distributed to the PSC members.

Meanwhile, the Government of South Sudan has made no credible efforts to hold accountable individuals responsible for crimes under international law and other serious violations and abuses of international human rights law.

Negotiations between the Government of South Sudan and the SPLM-IO are being brokered by the Intergovernmental Authority on Development (IGAD), an eight-member regional body. Despite multiple commitments to cease hostilities, the conflict has continued. On 1 February President Salva Kiir and opposition leader Riek Machar signed an agreement committing to conclude a final peace agreement by 5 March. Despite this, negotiations have failed to result in a final agreement.

For more information or to arrange an interview contact:

For the Association of Women for the Development and Culture of Peace in Chad: Céline Narmadji, (+235) 66 29 40 85 / 99 12 13 59, narmadjicel.64@gmail.com

For Amnesty International: Mildred Ngesa, mildred.ngesa@amnesty.org, +254 732 495 215  

For International Commission of Jurists: Arnold Tsunga, +27 (71) 6405926, arnold.tsunga@icj.org

For the Centre for Human Rights at the University of Pretoria: Frans Viljoen, +27 012 4203228, frans.viljoen@up.ac.za

For the Institute for Justice and Reconciliation: Friederike Bubenzer, friederikebubenzer@gmail.com

For the South Sudan Law Society (SSLS): David Deng, +254 703754068 ddeng@sslawsociety.org

For Assistance Missions for Africa: James Ninrew Dong, +211 955224368, jninrew@yahoo.com

For the Institute on Human Rights and Development in Africa: Djeugoue Brice Martial, +2207751208, bmdjeugoue@ihrda.org,

By; Teddy Tabu Odira

Introduction

From Margaret Sanger[1] saying, “No woman can call herself free until she can choose consciously whether she will or will not be a mother,” to Mother Teresa[2] stating, “I feel the greatest destroyer of peace today is 'Abortion', because it is a war against the child... A direct killing of the innocent child, 'Murder' by the mother herself,” I am left to wonder, which side of the argument should we incorporate in our culture.

Abortion, the artificial or spontaneous termination of a pregnancy before the embryo or foetus can survive on its own outside a woman's uterus[3], has emerged as a polarizing and multifaceted debate within the Kenyan context. It traverses a spectrum encompassing medical, legal, moral, and socio-economic dimensions, profoundly impacting individuals, families, communities, and the nation at large. The discourse is interwoven with notions of bodily autonomy, religious doctrines, societal mores, and the pursuit of equitable healthcare, painting a nuanced portrait of a nation in pursuit of progress and compassion.

Unwanted pregnancies pose a serious health risk to women across various regions in the developing world, particularly in terms of morbidity and mortality related to pregnancy and childbirth.[4] In nations where safe abortion services are hindered either by legal constraints or logistical challenges, unsafe abortions become a major contributor to maternal fatalities. These unsafe procedures are often conducted by untrained individuals in unhygienic settings. However, in countries such as Kenya, accurately documenting the precise scale of morbidity and mortality linked to abortion, as well as the root causes of unsafe abortions, proves challenging.[5]

Be that as it may, in the years preceding the constitutional reform process of 2009-2010, a research done by center for reproductive rights indicated that approximately 2,600 women lost their lives each year in Kenya due to complications arising from unsafe abortions.[6] During the early 2000s, unsafe abortions accounted for 35% of maternal deaths in Kenya, a figure nearly three times higher than the global average for deaths resulting from unsafe abortions, which stood at 13%.[7]

In this exploration of Kenya's stance on abortion rights, I delve into the historical evolution of abortion legislation, the prevailing legal framework, its implications on women's health and well-being, and the role of cultural and religious beliefs. This journey unfolds against the backdrop of a nation at the crossroads, seeking to honor tradition while acknowledging the changing tides of global human rights discourse and the imperative of providing safe and compassionate reproductive healthcare to its populace.

Historical Evolution Abortion Legislation

In the golden era of Jamaican reggae, “Legalized Crime” by Ntshenge and the Jah Live was a powerful anthem we all cherished. Let’s reimagine its message, “I wonder why you pass laws that legalizes a crime, maybe you don’t know that abortion is a crime, abortion is not a human right, it is a crime, it is a crime, abortion is a crime.”[8] How true were these lyrics within the Kenyan context?

Throughout history, abortion has remained steeped in controversy and continues to do so. Reaching a moral consensus on this matter proves exceedingly difficult.[9] Concurrently, within the era of human rights, government entities, including legislative bodies and the judiciary, cannot cite the absence of political, moral, or religious consensus on abortion as a valid excuse for their failure to address the injustices women endure due to unsafe abortions.[10]

Kenya, being a British colony, relied so much on British laws. A significant historical milestone in the evolution of abortion legislation emerged with the English Offences Against the Person Act of 1861.[11] This legislation, along with its judicial interpretation, was later adopted and implemented in British colonies Kenya included.[12] The main abortion provision in the Act was Section 58 of the 1861 Act which made it an offence for a woman to “unlawfully” procure an abortion.[13] Additionally, Section 59 of the Act punished a person who supplied the woman with the means for unlawfully procuring an abortion.[14]

Section 58 of the Act stated that;

“Every woman being with child who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with the intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of a felony and being convicted thereof shall be liable to imprisonment for life.”[15]

The Right Honorable Sir Malcolm Macnaghten interpreted this Section in the case of Rex v. Bourne.[16] He stated that the 1861 Act, by employing the term "unlawfully" to describe the ban on procuring an abortion, conveyed to the courts that not every abortion was deemed unlawful. It subtly acknowledged situations in which an abortion could be obtained in a "lawful" manner. However, clarity was lacking regarding whether abortions, beyond those necessary to preserve the pregnant woman's life, could be lawfully conducted.[17] In the absence of legislative intervention, the case of Bourne in 1938 played a pivotal role in elucidating this legal stance.

Influence of Rex v. Bourne in Kenyan Jurisprudence

The laws on abortion in Kenya were heavily inspired by a significant legal precedent that was set in 1938 in the United Kingdom with the case of Rex v. Bourne.[18] In this case, a surgeon faced charges under section 58 of the Offences against the Person Act 1861 for performing an abortion, via surgical means, on a 14-year-old girl impregnated through rape. The jury was instructed that the burden of proof rested with the prosecution to demonstrate, beyond a reasonable doubt, that the surgical procedure was not undertaken in good faith solely to preserve the girl's life. The court and jury relied on the surgeon's expert opinion, rooted in his vast knowledge and experience. The surgeon did not wait until the patient was in imminent danger but acted when he was convinced that the pregnancy resulting from rape would seriously jeopardize the physical and mental health of the young girl, putting her life at significant risk. The jury acquitted the surgeon based on these grounds.

The influence of this case could be seen in our constitution, penal code and case laws. Article 26(4) of the Kenyan Constitution states that 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.[19] Section 240 of the penal code on the other hand outlines "offences endangering life and health." It introduced a subtle exception to the blanket prohibition against abortion. This exception is implicit, permitting a departure from the ban under specific circumstances. It stipulates that "a person is not criminally responsible for performing, in good faith and with reasonable care and skill, a surgical operation upon any individual for their well-being, or upon an unborn child to preserve the mother's life, provided that the performance of the operation is deemed reasonable, considering the patient's condition at the time and all pertinent circumstances."[20] In essence, this provision allows for a surgical intervention on an unborn child to be considered a lawful act if it is deemed reasonable and necessary for the preservation of the woman's life, even if the consequence may involve an abortion.

The standard established in Rex v. Bourne was subsequently affirmed in a Kenyan case of Mehar Singh Bansel v R .[21] The court held that, “Defined an illegal operation as one which is intended to terminate pregnancy for some reasons other than what can, perhaps be best be called a good medical reason, which the court interpreted to be the genuine belief that the operation is necessary for the purpose of saving the patients life or preventing severe prejudice to her health.” This was also reinstated in PAK & another v Attorney General & 3 others.[22]

However, the penal code, specifically section 240 and other Kenyan laws, lacked explicit guidance on how to put this provision into practice.[23] Furthermore, the language in section 240 of the penal code suggested a limited scope—only abortions resulting from surgical procedures on a fetus were implied to be permissible. This implication potentially excluded other medical treatment methods, like medical abortions, even if used to safeguard a woman's life, from being considered lawful.

Prevailing legal framework

Article 43(1)(a) of the 2010 Constitution of Kenya unequivocally articulates the fundamental right to the highest possible standard of reproductive health.[24] Its counterpart, Article 43(2), firmly decrees that no person shall be denied emergency medical treatment.[25] The nuanced sphere of safe abortion is particularly governed by the intricate mandate of Article 26(4), [26] emphasizing that abortion is permissible only if deemed necessary by a qualified health professional in situations of emergency, threats to the mother's life or health, or when authorized by pertinent laws.

Additionally, Section 6(1) of the Health Act provides invaluable insights into matters concerning abortion.[27] It emphatically affirms every individual's right to comprehensive reproductive healthcare, encompassing access to treatment by proficient healthcare practitioners for conditions arising during pregnancy. These encompass abnormal pregnancy conditions such as ectopic, abdominal, and molar pregnancies, or any medical condition exacerbated by pregnancy to an extent endangering the mother's life or health. Notably, all such cases are designated as notifiable conditions.

The subsequent Section 6(2) defines the term "trained health professional," delineating qualifications at the proficiency level of a medical officer, a nurse, midwife, or a clinical officer.[28] These professionals must possess formal medical training and hold a valid license from recognized regulatory authorities to perform procedures concerning pregnancy-related complications in women. The Act further necessitates that such procedures be conducted within legally recognized health facilities, equipped with adequate human resources, infrastructure, commodities, and supplies.

In parallel, the Penal Code delineates the criminalization of unsafe abortion through sections 158-160.[29] It sternly penalizes any individual engaged in actions aimed at procuring a miscarriage through administering poison, using force, or other means. However, the Code extends a crucial exception under Section 240, providing a sanctuary for trained health professionals.[30] When acting in good faith and with reasonable care, they are shielded from criminal liability when conducting surgical operations to preserve the life of the mother or the unborn child.

In practice, law enforcement often manipulates Section 158 of the Penal Code to intimidate medical providers offering safe abortion services, contrary to the law.[31] Strikingly, Makueni County's progressive Maternal Newborn Child Health Act of 2017 embraces the recognition of termination of pregnancy under diverse circumstances, including rape, fetal abnormalities, and mental incapacity to comprehend the pregnancy.[32] Conversely, Kilifi County restricts access to safe termination only to emergent situations, highlighting the decentralized perspectives within the legal framework. However, at the national level, the established legal framework continues to serve as the overarching guiding principle.

Prevailing Case laws          

PAK & another v Attorney General & 3 others[33]

At the center of this case is the petitioner, a second-year student, who found herself pregnant following a consensual encounter with another student. As her pregnancy progressed, complications arose, marked by severe pain and bleeding, compelling her to seek urgent medical attention at Chamalo Medical Clinic in Ganze Location. There, the second petitioner, a healthcare professional, diagnosed her with a spontaneous abortion and performed a successful manual vacuum evacuation, resulting in her stable condition.

However, the situation took an unexpected turn when plain-clothed police officers, without prior notice or consent, abruptly entered Chamalo Medical Clinic. They demanded access to the petitioners' medical records, eventually confiscating them from the second petitioner. Both the first and second petitioners, along with two female clinic employees working as cleaners, were then arrested and transported to Ganze Police Patrol Base.

Subsequently, the first petitioner was compelled to undergo a medical examination at Kilifi County Hospital, during which a medical examination form was completed. Following this, the first petitioner was charged with the offense of procuring abortion under section 159 of the Penal Code. The second petitioner faced charges in Kilifi under criminal case number 395 of 2019 for procuring abortion, with an alternative charge of supplying drugs to induce abortion under section 160 of the Penal Code.

In their response to these charges, the petitioners initiated legal proceedings to challenge the criminal trial at the Kilifi Law Courts. They contended that Article 26(4) of the Constitution outlined specific situations in which abortion was permissible.[34] The petitioners further asserted that the actions of the police, involving the detention of the first petitioner and a forced medical examination, infringed upon her fundamental human rights, including the rights to life, privacy, the highest attainable standard of physical and mental health, freedom from torture, inhuman and degrading treatment, and punishment.

In addition to seeking the quashing of their charges, the petitioners also called upon the court to declare sections 154, 159, and 160 of the Penal Code, which criminalize abortion, as unconstitutional.[35] In response, the respondents argued that the Constitution unequivocally declared abortion as illegal, except in circumstances where a qualified healthcare practitioner deemed the mother's life to be at risk, or when emergency treatment was deemed necessary, or when permitted by another written law. They asserted that it was therefore implausible to argue that Article 26(4) had nullified sections 158, 159, and 160 of the Penal Code.[36]

The courtroom, with its hallowed halls, resounded with a powerful proclamation: the sweeping ban on abortion, as dictated by Sections 158-160 of the Penal Code, exposed not only the expectant mother but also the unborn child to the haunting specter of mortality.[37] This, the Court declared, was nothing short of an infringement upon the sacred right to life.

With unwavering clarity, the Court ruled that a woman should be entrusted with the profound decision of whether to terminate her pregnancy, a choice to be made in the tender care and counsel of a trained healthcare professional. In this, the Court illuminated the path, affirming that such a medical expert, when guided by their expertise and the wisdom of the Constitution and allied statutes, bears no criminal burden for undertaking a medical abortion procedure.

The High Court, in no uncertain terms, reinforced the notion that the right to abortion, though not an absolute liberty, is etched within the constitutional and human fabric. Yet, it unveiled a shadowy void in the Penal Code, a gaping omission in the context of Article 26(4) of the Constitution, rendering it flawed and incomplete.

Reasoning of the court

Judge Reuben Nyambati Nyakundi had a lot to disclose in the Obiter. In his opinion, in Kenya, the legal status of abortion had long been a complex issue, yet a glimmer of hope shone through the Constitution and various international agreements such as CEDAW.[38] They provided a solid legal framework to bolster the reproductive rights of women, reaffirming their place in the pursuit of equality and the highest attainable standard of health. These rights encompassed not only their right to benefit from scientific progress but also to access healthcare services, especially those linked to reproductive and sexual health. Failing to protect these rights could amount to a grave transgression, including cruel, inhuman or degrading treatment, torture, or even a violation of the right to life.

The application of international law to the unique Kenyan context found its footing in Article 2(5) of the Constitution.[39] It unequivocally declared access to safe abortion services as a fundamental human right. Forcing someone to bear an unwanted pregnancy or pushing them towards unsafe alternatives infringed upon their human rights, including the cherished rights to privacy and bodily autonomy.

He reiterated that, the absence of accessible, quality abortion care posed a serious threat to various human rights of women and girls. These encompassed the right to life, the right to the highest attainable standard of physical and mental health, and the right to benefit from scientific progress. Equally significant were the rights to make decisions regarding the number, spacing, and timing of children, as well as the right to be free from torture, cruel, inhuman, and degrading treatment and punishment.

Kenya's restrictive abortion laws, coupled with the lack of effective legislation to give life to Article 26(4) of the Constitution, left women and girls exposed to mental and physical health risks, often associated with unsafe abortions. These laws stigmatized those seeking abortions, further violating their right to life and the right to the highest attainable standards of health.

He stated that the right to terminate a pregnancy stood as a fundamental and deeply personal liberty. The court recognized the immense burden the State placed upon pregnant women by denying them this choice, including the potential health risks of pregnancy and the financial and emotional toll of bringing a child into a family without regard for the fetus's viability or the mother's well-being.

The honorable judge opined that it was imperative for the legislature, as the governing body, to expedite the passage of legislation that ensured access to safe abortion for women in Kenya, fully realizing the provisions of Article 26(4) of the Constitution. In the criminalization of abortion under the Penal Code, the judge found a shifting landscape, one that hadn't been a consistent feature in the adjudication of evidence destined for use by the Director of Public Prosecution under Article 157(6), (7), and (8) of the Constitution.

The contentious sections aimed to address societal concerns regarding the preservation of the right to life, predating the enactment of the 2010 Constitution. It became imperative for a new act to be enacted by the legislature, outlining conditions under which procuring an abortion would be deemed a criminal offense. The prohibited conduct should be clearly and unambiguously defined within the text of Article 26(4) of the Constitution, and the scope of the disputed sections should be scrutinized in light of fundamental rights, such as women's rights to health, life, dignity, and security.

Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others; East Africa Center for Law & Justice & 6 others[40]

In September 2012, the Ministry of Medical Services, following a consultative process, issued the "2012 Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya" (referred to as the 2012 Standards and Guidelines) and the "National Training Curriculum for the Management of Unintended, Risky, and Unplanned Pregnancies" (the Training Curriculum). However, on December 3, 2013, the third respondent, the Director of Medical Services (DMS), issued a letter withdrawing both the 2012 Standards and Guidelines and the Training Curriculum. Subsequently, the DMS issued a memo to all health workers, instructing them not to participate in any training related to safe abortion and the use of medabon (medicines for inducing abortion). The memo warned that those who attended such trainings or used medabon would face legal and professional consequences.

In 2014, the second petitioner, an 18-year-old, was subjected to non-consensual sexual intercourse, resulting in an unwanted pregnancy. She sought an abortion, which led to severe complications. She was subsequently admitted to Kenyatta National Hospital, where her diagnosis at the time of discharge indicated a septic abortion, hemorrhagic shock, and the development of chronic kidney disease. Tragically, the second petitioner passed away before the resolution of this petition. The petitioners argued that the DMS had exceeded their authority by unilaterally and arbitrarily withdrawing the 2012 Standards and Guidelines and the Training Curriculum. This withdrawal created a void and exposed individuals, including the second petitioner, to a denial of their reproductive health rights, among other consequences.

A panel of judges, including Aggrey Otsyula Muchelule, Lydia Awino Achode, Mumbi Ngugi, George Vincent Odunga, and John Muting'a Mativo, rendered a partial decision in the case. They ruled that the third respondent's actions, particularly the letter dated December 3, 2013, had violated and/or threatened the rights of the second, third, and fourth petitioners, who represented women of reproductive age, along with other women and adolescent girls of reproductive age. These violated rights encompassed the right to the highest attainable standard of health, the right to non-discrimination, the right to information, consumer rights, and the right to benefit from scientific progress.

The judges issued a declaration that the memo dated February 24, 2014, issued by the third respondent, violated or threatened the rights of healthcare professionals. These rights included access to information, freedom of expression and association, consumer rights, and the right to benefit from scientific progress.

Furthermore, the judges decreed that the third respondent's letter dated December 3, 2013, and the memo dated February 24, 2014, were not in accordance with the law. They were deemed unlawful, illegal, arbitrary, and unconstitutional, and, as a result, were null and void from their inception. These documents were consequently revoked.

The court upheld the general illegality of abortion in Kenya, except for specific exceptions as provided under Article 26(4) of the Constitution. Additionally, the court confirmed that in cases of pregnancy resulting from rape and defilement, a trained health professional may terminate the pregnancy if it poses a danger to the life or health (physical, mental, and social well-being) of the mother, as permitted by the exceptions outlined in Article 26(4) of the Constitution.

In terms of compensation, an order was issued, directing the respondents, whether jointly or individually, to pay PKM a sum of Ksh. 3,000,000. This compensation was granted to address the physical, psychological, emotional, and mental anguish, stress, pain, suffering, and the unfortunate death of JMM, all of which were attributed to the respondents' violation of JMM's constitutional rights.

Implications of abortion on women's well-being and health

Mother Theresa of Calcutta[41] asked a rhetorical question that remains disturbing to date. She asked, “It is poverty to decide that a child must die so that you may live as you wish?” The Turnaway Study conducted at the University of California, San Francisco, tends to answer this question. It shows that women experience harm from being denied a wanted abortion.[42]

The study found that refusing a woman's request for an abortion has far-reaching economic repercussions and creates long-term insecurity.[43] Women who were declined an abortion and subsequently gave birth faced a significant and enduring increase in household poverty, spanning at least four years, compared to those who were granted an abortion.[44] Even years after being denied an abortion, these women were more likely to struggle with financial challenges, including difficulties in affording basic necessities such as food, housing, and transportation.[45]

Furthermore, the denial of an abortion had a negative impact on a woman's financial stability. It led to a decline in their credit score, an increase in their overall debt burden, and an uptick in the number of adverse financial records, such as bankruptcies and evictions.[46]

The Turnaway study also found that women who are refused abortions are more likely to remain in contact with a violent partner and are also at a higher risk of becoming single parents responsible for raising the child alone.[47] Notably, instances of physical violence from the men involved in the pregnancy decreased for women who chose to receive abortions.[48] However, for those who were denied abortions and subsequently gave birth, the pattern of violence from these partners persisted.

Over a span of five years, it became evident that women who were denied abortions were more likely to be in a situation where they were raising their children independently, without the support of family members or male partners.[49] This was in stark contrast to women who opted for an abortion.

Childbirth is associated with a greater incidence of severe health complications compared to having an abortion. Women, in the Turnaway study who were denied an abortion and subsequently gave birth reported a higher occurrence of life-threatening issues such as eclampsia and postpartum hemorrhage, in contrast to those who received the desired abortion.[50] Additionally, these women who gave birth instead experienced more chronic health problems, including headaches or migraines, joint pain, and gestational hypertension, compared to their counterparts who chose abortion.[51]

Tragically, the increased risks associated with childbirth were starkly exemplified by two women who were denied an abortion and tragically lost their lives following delivery. No such fatalities were reported among women who underwent abortions.[52]

Furthermore, the study found that the financial well-being and overall development of children are adversely affected when their mothers are denied abortion.[53] In cases where women already have children when they seek abortion, the children's development tends to suffer when their mothers are denied this choice, in contrast to the children of women who are granted an abortion.[54] Children born as a result of the denial of abortion are more likely to grow up below the federal poverty level when compared to children born from a subsequent pregnancy to women who received the abortion they sought.[55]

Furthermore, the act of carrying an unwanted pregnancy to full term is linked to a diminished maternal bonding experience. This may manifest as feelings of being trapped or harboring resentment towards the child, particularly in the case of the child born after an abortion was denied, as opposed to the next child born to a woman who received the abortion she wanted.[56]

In the Kenyan context, the findings of this study can be linked to the Article 53 (2) of the Constitution which states that a child’s best interests are of paramount importance in every matter concerning the child.[57]

Role of Cultural and Religious Beliefs on Matters Abortion

The decision to seek abortion services was deeply influenced by a complex interplay of religious beliefs, community norms, and cultural traditions, directly and indirectly shaping women's choices regarding abortion and post-abortion care (PAC). For instance, in numerous rural communities and religious groups, there was a strong preference for traditional birth attendants (TBAs) and traditional healers over hospitals. This cultural preference actively discouraged women from accessing abortion services at healthcare facilities.

A study named, “Stigma and agency: exploring young Kenyan women’sexperiences with abortion stigma and individual agency,”[58] interview girls aged 18 to 24 to understand this dynamic. One participant, who is a Maasai-Kikuyu, said that the Maasai believes in getting wakunga (Swahili name referring to mid-wives) when you give birth. Even when you want to terminate a pregnancy, they call all the elderly women, and they sit on your stomach repeatedly. She stated that the women then bounce on a woman’s stomach it till it's 'dead.' For her this process was scary. [59] The respondent in this case was aged 24 years.

When asked about the significant influence of religious beliefs and cultural traditions on women's ability to access abortion-related care, participants noted a pervasive belief in Nairobi that abortion is morally wrong, sinful, and illegal. This belief was firmly rooted in faith in God and the sanctity of life.

Another Respondent aged 20 stated that in her religion, they are not allowed to abort a child, and apart from religion, she opined that it's something that is not right. Moreover, in addition to the powerful impact of religious and cultural beliefs, many communities employed stigma, isolation, and shame as mechanisms to ensure that women adhered to traditional norms.[60] Women who sought abortion services and were discovered often faced public condemnation as immoral and hypersexual. As a result, they might be ostracized, disowned, or subjected to even more severe consequences.[61]

The study also indicated that the first thing people think of when they hear someone had an abortion is that the person is a prostitute. For some, the weight of these cultural beliefs was so profound that they felt that women who sought abortions "deserved" to be stigmatized or mistreated. While experiences with social stigma and cultural beliefs surrounding abortion varied among participants, the unanimous thread was the belief that abortion is morally wrong and a sin, and that women who choose abortion are often labeled as promiscuous and shameful.

Conclusion.

In conclusion, from Margaret Sanger to Mother Teresa to real life stories of the girls in our country and beyond, it is evident that our journey through this intricate debate, in the Kenyan context, goes far beyond the realm of laws, medical complexities, religious beliefs, and cultural norms. It's a profoundly human narrative, where the stories of countless lives are interwoven, shaping our collective identity.

At the heart of this discussion is our commitment to ensuring the reproductive health, autonomy, and well-being of women. It is evident from the above findings that finances also play a huge role in this conversation, both to the mother and the child’s wellbeing. The haunting specter of unsafe abortions, with their devastating impact on maternal health, serves as a stark reminder of the urgent need for transformation. We are challenged to create a healthcare system that is not only equitable but also compassionate, embracing every individual, regardless of their beliefs or backgrounds.

Ultimately, in the Kenyan context where religion and culture also plays a role, it is safe to say that resolving the abortion debate doesn't require imposing one belief over another. It demands that we engage in open dialogue, understanding, and compassion. This debate calls for finding a path that respects individual choices while nurturing the common good. It's a journey marked by complexity and kindness, where diverse voices contribute to our nation's vibrant story. I will end this with a quote by Abhijit Naskar in his book, “Hometown Human: To Live for Soil and Society.” Worse than aborting is birthing in instability.

[1] Margaret Higgins Sanger, also known as Margaret Sanger Slee, was an American birth control activist, sex educator, writer, and nurse.

[2] Mary Teresa Bojaxhiu MC, better known as Mother Teresa, was an Albanian-Indian Catholic nun and the founder of the Missionaries of Charity.

[3] ‘ABORTION Definition & Meaning - Black’s Law Dictionary’ (The Law Dictionary28 March 2013) <https://thelawdictionary.org/abortion/#:~:text=ABORTION%20Definition%20%26%20Legal%20Meaning&text=The%20artificial%20or%20spontaneous%20termination> accessed 17 October 2023.

[4] Jean Baker and Shanyisa Khasiani, ‘Induced Abortion in Kenya: Case Histories’ (1992) 23 Studies in Family Planning 34.

[5] Ibid

[6] Center for Reproductive Rights., ‘A Decade of Existence: Policy Work Revealing Progress, Reversals, and Betrayal of a National Compromise’ (2020) <https://reproductiverights.org/sites/default/files/documents/A-Decade-of-Existence-Kenya_0.pdf> accessed 17 October 2023.

[7] Ibid

[8] ‘Ntshenge & the Jah Live - ABORTION IS a CRIME’ (www.youtube.com) <https://www.youtube.com/watch?v=lhiINgsUiXg&ab_channel=MutevhetsindoWaMbilu> accessed 18 October 2023.

[9] Prof Charles Ngwena, ‘A Handbook for Judges Human Rights and African Abortion Laws’ (2014) <https://www.kelinkenya.org/wp-content/uploads/2015/12/HANDBOOK-ON-AFRICAN-ABORTION-LAWS.pdf> accessed 18 October 2023.

[10] Ibid

[11] Offences Against the Person Act of 1861.

[12] RJ Cook & BM Dickens ‘Abortion Laws in African Commonwealth Countries’ (1981) 25 Journal of African Law 60.

[13] Offences Against the Person Act of 1861, Section 58

[14] Ibid, Section 59

[15] Ibid

[16] Rex v. Bourne, Central Criminal Court 3 All E. R. 615 (1938)

[17] Ngwena (n9)

[18] Ibid

[19] Constitution of Kenya, 2010

[20] Penal Code ‘CAP. 63’ (Kenyalaw.org2014) <http://www.kenyalaw.org/lex/actview.xql?actid=CAP.%2063>.

[21] Mehar Singh Bansel v R  111 (1959) EA 832

[22] PAK & another v Attorney General & 3 others (Constitutional Petition E009 of 2020) [2022] KEHC 262 (KLR) (24 March 2022) (Judgment)

[23] Centre for Reproductive Rights (n 4)

[24] Constitution of Kenya 2010, Article 43(1)(a)

[25] Ibid

[26] Ibid, Article 26 (4)

[27] Health Act, 2017 Section 6 (1)

[28] Ibid Section 6 (2)

[29] Penal Code, 2009

[30] Ibid Section 240

[31] Ibid Section 158

[32] Maternal Newborn Child Health Act of 2017

[33] PAK & another v Attorney General & 3 others (Constitutional Petition E009 of 2020) [2022] KEHC 262 (KLR) (24 March 2022) (Judgment)

[34] Constitution of Kenya 2010, Article 26

[35] Penal code 2009, Section154,159 and 160

[36] Ibid

[37] Ibid

[38] Convention on the Elimination of All Forms of Discrimination against Women 1979

[39] Constitution of Kenya 2010, Article 2(5)

[40] Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others; East Africa Center for Law & Justice & 6 others (Interested Party) & Women’s Link Worldwide & 2 others (Amicus Curiae) [2019] eKLR

[41] Mary Teresa Bojaxhiu MC, better known as Mother Teresa, was an Albanian-Indian Catholic nun and the founder of the Missionaries of Charity.

[42] The Turnaway Study included one thousand women from clinics in 21 states, who closely resemble the population seeking abortions in the United States as a whole. Women who received abortions and women who were denied abortions were similar at the time they sought abortions. Their lives diverged after in ways that were directly attributable to whether they received an abortion. A testament to how well the study was designed and its scope, the Turnaway Study has produced 50 peer-reviewed papers in top medical and social science journals.

[43] ANSIRH, ‘The Harms of Denying a Woman a Wanted Abortion Findings from the Turnaway Study Denying a Woman an Abortion Creates Economic Hardship and Insecurity Which Lasts for Years. 1’ (2020) <https://www.ansirh.org/sites/default/files/publications/files/the_harms_of_denying_a_woman_a_wanted_abortion_4-16-2020.pdf>.

[44] Diana Greene Foster and others, ‘Socioeconomic Outcomes of Women Who Receive and Women Who Are Denied Wanted Abortions in the United States’ (2018) 108 American Journal of Public Health 407.

[45] Ibid

[46] Sarah Miller, Laura Wherry and Diana Foster, ‘NBER WORKING PAPER SERIES the ECONOMIC CONSEQUENCES of BEING DENIED an ABORTION’ (2020) <https://www.nber.org/system/files/working_papers/w26662/w26662.pdf>.

[47] ANSIRH n 43

[48] Sarah CM Roberts and others, ‘Risk of Violence from the Man Involved in the Pregnancy after Receiving or Being Denied an Abortion’ (2014) 12 BMC Medicine <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4182793/>.

[49] Miller n 46

[50] Caitlin Gerdts and others, ‘Side Effects, Physical Health Consequences, and Mortality Associated with Abortion and Birth after an Unwanted Pregnancy’ (2016) 26 Women’s Health Issues 55 <https://www.sciencedirect.com/science/article/pii/S1049386715001589>.

[51] Lauren J Ralph and others, ‘Self-Reported Physical Health of Women Who Did and Did Not Terminate Pregnancy after Seeking Abortion Services’ (2019) 171 Annals of Internal Medicine 238.

[52] Ibid

[53] ANSIRH n 43

[54] Diana Greene Foster and others, ‘Effects of Carrying an Unwanted Pregnancy to Term on Women’s Existing Children’ (2019) 205 The Journal of Pediatrics 183 <https://www.jpeds.com/article/S0022-3476(18)31297-6/fulltext>.

[55] Diana Greene Foster and others, ‘Comparison of Health, Development, Maternal Bonding, and Poverty among Children Born after Denial of Abortion vs after Pregnancies Subsequent to an Abortion’ (2018) 172 JAMA Pediatrics 1053 <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6248140/>.

[56] Ibid

[57] Constitution of Kenya 2010, Article 53(2)

[58] Deeqa Mohamed, Nadia Diamond-Smith and Jesse Njunguru, ‘Stigma and Agency: Exploring Young Kenyan Women’s Experiences with Abortion Stigma and Individual Agency’ (2018) 26 Reproductive Health Matters 128.

[59] Ibid

[60] Ibid

[61] Ibid

The Ethics and Anti-Corruption Commission (EACC) has made some steps towards the investigation of Mr. Isaack Hassan, Mr. James Oswago, Mr. Davis Chirchir, Mr. Paul Wasanga and Mr. James Oyombra who were unequivocally mentioned during the UK court case for having received bribes in order to award Smith & Ouzman tenders to print election materials and national examination certificates.

KHRC’s Program Advisor on Electoral Governance Carol Werunga states that, “Public officers whose conduct does not bring honour, public confidence and integrity in the performance of their duties have no place in the management of public affairs. Public officers’ must adhere to set out value and principles that govern their various mandate”.

KHRC strongly believes in the criteria set out in the Constitution of Kenya that stipulates the expected conduct of public officer (Articles 10 & 232, and Chapter 6). Therefore it is alarming that the implicated officials namely: Mr. Isaack Hassan – Chairperson of IEBC, and Mr. Davis Chirchir - Cabinet Secretary of Energy and Petroleum, and former Commissioner in the defunct IIEC) - are still holding their positions as public officers. KHRC hereby demands that Mr. Isaack Hassan and Mr. Davis Chirchir step down to pave away for transparent and effective investigations.

As the world watches, EACC must expedite investigations and hearings and ensure that the process is transparent to ensure that Kenyans have leaders who protect the institutions of state from mega corruption.

Media bookings contact:

Audrey Wabwire/Communications Manager/ Email: awabwire@khrc.or.ke

The International Centre for Transitional Justice (ICTJ) is currently hosing an online debate entitled “Is the International Community Abandoning the Fight Against Impunity?” The debate has seen contributions from prominent personalities in the field of transitional justice ad human rights including: David Tolbert- President of ICTJ; Michael Ignatieff- Professor and Human Rights Scholar; Zeid Ra’ad Al Hussein- UN High Commissioner for Human Rights; Betty Murungi- Former Commissioner in Kenya’s Truth, Justice and Reconciliation Commission (TJRC) and; Aryeh Neier- President Emeritus, Open Society Foundations. David Tolbert begins by making the case for the need to critically reflect on whether the developments in transitional justice over the last 25 years have served to advance the prospects of justice for victims. Micahel Ignatieff articulated some of the recent setbacks experienced by the International Criminal Court (ICC) as an indicator of the international community in retreat in as far as impunity is concerned. Betty Murungi chose the path of the middle-ground, calling attention to the duty of individual states and citizens in ensuring that the fight against impunity succeeds. Aryeh Neier called for a reinvigoration of the international justice movement through another purposeful global convening such as the Rome conference which birthed the Rome Statute. While I identify with the sentiments of all contributors in various respects, I find myself more aligned with Betty Murungi’s middle-ground perspective in considering Africa’s experience with the fight against impunity.

In assessing the level of commitment by the international community in the fight against impunity, we must first dispense with certain misconceptions associated with international justice system and the mechanisms that facilitate it. The biggest misconception that is largely ascribed to the International Criminal Court is that it is a “silver bullet” or panacea to the impunity challenges that countries face and that it’s utility somehow absolves states from assuming their primary responsibility in ensuring that there are complementary mechanisms at the national level with requisite political will to ensure their effectiveness. Since the focus of the ICC and international tribunals are restricted to prosecuting persons bearing the greatest responsibility for mass atrocities, it is not conceivable to expect them to deal comprehensively with the impunity question. The absence of domestic processes that deal with the so called mid-level and low-level perpetrators can only mean that the impunity gap will persist and most likely occasion the re-emergence of violent conflict.

There is a genuine grievance from Africa with regard to the ICC’s apparent fixation on the continent and its double standards as manifested by the court’s hesitance to intervene in conflict situations that suggest criminal culpability on the part of members of the UN Security Council and/or its close allies. There is however a misconception of what the continent’s response to that grievance is. A section of African leaders with vested interests in the outcome of this debate such as Uhuru Kenyatta of Kenya and Omar al-Bashir of Sudan will have you believe that the collective African response is to repudiate the ICC and the Rome Statute or temper it with retrogressive amendments (such as immunity from prosecution for sitting heads of state). Admittedly, African States as individual entities and as a collective within the African Union (AU) have issued contradictory positions that have allowed this misconception to propagate.

The AU through an extra-ordinary session convened in 2013 issued a decision purporting to among other things, prohibit the ICC from proceeding with President Kenyatta’s trial and regulate the interaction between individual African states and the ICC. While this decision on face value carries with it the perceived consensus of the continent, a closer look at the prevailing situation on the ground suggests otherwise. The foreign policy posture of various states since the 2013 decision was issued has suggested that national interest reigns supreme in as far as relations with the ICC are concerned. Despite the AU decision, numerous African states at the 2014 Assembly of State Parties (ASP) to the Rome Statute not only reaffirmed their support for the ICC but also gave Kenya’s diplomatic efforts to introduce immunity clauses to the Rome statute a wide berth. Omar al-Bashir still faces considerable travel restrictions on the continent as he remains unsure of whether various states would be willing to overlook their Rome Statute obligations with regard to his outstanding arrest warrant. It is indeed insightful that in considering its progress report on the implementation of previous ICC related decisions, the AU at the January 2014 summit felt the need to reiterate its call for member states to speak with one voice and to comply with the position of overlooking Omar Al Bashir’s arrest warrant. The fact is there is no consensus.

Finally, in considering international commitment to the fight against impunity, we must move beyond the conventional notion of the international community consisting of just state entities. While the State remains the key actor in international relations which serves as the platform for negotiating the future of international justice, we must take due cognizance of the increased influence of other actors in the context of multi-track diplomacy. Non-governmental organizations and individual activists from different countries and continents have over time managed to enhance their collaborations and sustain global debates on impunity that have considerably influenced state positions on this matter. The Kenyan government for example, was particularly incensed and startled by the ability of civil society to intervene in its 2013 request for a deferral of the ICC cases by the UN Security Council. Furthermore it has long branded civil society’s contact with the organs of the ICC as politicization of the judicial and prosecutorial functions of the court. The rise of civil society in the diplomatic and wider foreign relations sphere has meant that the debate on the future of the fight against impunity is a robust one and not monopolized by States who would willingly overlook justice concerns in the face of other interests.

In summation, while international support for the fight against impunity has suffered some significant setbacks in the face of prioritized national interest (read political leaders’ interests) all is not lost. There is a core constituency of states that continue to display a tacit resoluteness on fighting impunity and; a vibrant global civil society that will continue to challenge those states that waver on their commitments while also supporting victims in search of justice.

You can follow the Impunity Debate here.