Death Sentence in Abortion Case Compounds Dangers for Kenyan Women

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Analysis Abortion

Death Sentence in Abortion Case Compounds Dangers for Kenyan Women

Francoise Girard

Though abortion is legal in Kenya in certain circumstances, many women and health-care providers remain misinformed about the law—and some corrupt police forces are reportedly taking advantage of this confusion.

Last week, a Kenyan court sentenced a nurse named Jackson Namunya Tali to death for performing an abortion that resulted in the death of a young woman in 2009. Though questions linger about the facts of the case, including whether the woman had sought the procedure elsewhere before going to Tali, one thing is certain: This verdict is already having a chilling effect on all abortion providers in Kenya.

In 2010, Kenyans voted in favor of a new Constitution that allows abortion when “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.” But although four years have passed since the Constitution was adopted, most Kenyan women, and even many health-care providers, remain misinformed about the circumstances under which an abortion is legally permitted.

Corrupt police reportedly exploit this confusion by storming clinics—sometimes in the middle of a procedure—and threatening health-care workers with arrest unless they pay a bribe. Faced with the prospect of spending a weekend in jail before the courts release them for providing a constitutionally protected medical procedure, clinic employees will often pay the extortion instead.

According to my colleague Dr. John Nyamu, an OB-GYN and executive director of Nairobi’s Reproductive Health Services (RHS), “Police use the clinics as an ATM on Fridays and Saturdays, especially at the end of the month.”

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As a result, many health-care providers have simply stopped offering the service out of fear of being arrested. And in the wake of the Tali verdict, Nyamu says the police have now stepped up the abuse. “Health providers have already reported several cases of police harassment,” he said. “Cases of extortion have gone up since the announcement of the sentence in the local media a few days ago.”

Nyamu himself is no stranger to police harassment. In 2004, he and two RHS clinic nurses, Marion Kibathi and Mercy Mathai, were arrested and charged with providing illegal abortions. After they spent more than a year in prison, the case was thrown out and the trio was released. They later sued the government for malicious prosecution and detention.

The media attention that surrounded their arrest and trial galvanized a community of doctors, lawyers, and activists to successfully campaign for the new reproductive health provisions in the 2010 Constitution. The campaign then evolved into a network known as the Reproductive Health and Rights Alliance, which has been working with the Kenyan Ministry of Health to formulate and disseminate standards for the enactment of these statutes. Such guidelines, activists hope, will clearly define the law and, in turn, prevent unsafe abortions and other leading causes of maternal death. They would also arm medical workers with the information to protect themselves from unlawful police raids.

The stigma around abortion in Kenya already makes it hard for women to differentiate a legitimate, licensed health-care provider from a “quack” doctor—a growing problem the Kenyan government has struggled to address across the entire medical sector. As a result, Kenyan women face a very grim statistic: Every year, approximately 120,000 women receive care for complications following unsafe abortions. More than 1,200 women die from them.

These deaths and injuries are completely preventable. This is why the International Women’s Health Coalition is supporting the push for the government to adopt the national guidelines. Although the Ministry of Health approved a version of the guidelines in 2012, it then withdrew them under pressure from religious conservatives. A government task force recently endorsed a new version; they are still pending the Ministry’s formal approval.

The current local media frenzy over the Tali case makes it clear that these guidelines are needed now more than ever. Kenyan women can’t afford to wait any longer. The Ministry of Health must adopt and implement the new abortion standards and guidelines without any further delay—or be itself complicit in the mounting toll on women’s lives and health.