Implications of Kenya

1
Implications of Kenyas New Constitution to
programming of health services

• Originally presented at a meeting on
  Understanding the implications of the articles
  on Reproductive Health in the Kenya
  Constitution, Crowne Plaza Hotel, Nairobi 24-25
  February, 2011
• by
• Japheth Mati MD

2
Overview

• The presentation seeks to contribute to a factual
  understanding of health related provisions in the
  New Constitution, and opportunities created for
  enhancing health care provision
• It seeks to identify opportunities for
  implementation of these provisions in the health
  sector, specifically in plans and interventions
  for the benefit of all in need of health
  services.
• Overall, health providers need to identify
  opportunities that may emerge from the
  Constitution, for enhancement of health
  (including RH) services.

3
Right to Health

• The Constitution of Kenya captures the concept of
  health as a human right in Art 43 (1)

4
The concept of health as a human right-
historical background

• World Health Organisations Charter (1946)
  Preamble Health is a fundamental right of every
  human being without distinction of any kind.
• The Universal Declaration of Human Rights (1948)
  Art 25 Everyone has the right to a standard of
  living adequate for health and well-being of
  himself and his family.
• International Covenant on Economic, Social and
  Cultural Rights (1966) Art 12 the right of
  everyone to the enjoyment of the highest
  attainable standard of physical and mental
  health.

5
The concept of health as a human right-
historical background Contd

• The Declaration of Alma Ata (WHO, 1978)
• The Program of Action of the International
  Conference on Population and Development (ICPD)
  (Cairo, 1994)
• The Platform of Action of the Fourth World
  Conference on Women (Beijing, 1995)
• The International Convention on the Elimination
  of All Forms of Racial Discrimination (1965), Art
  11
• The Convention on the Elimination of All Forms of
  Discrimination against Women (1979) Art 12
• The Convention on the Rights of the Child (1989)
  Art 24
• The recurrent message
• Everyone has the right to a standard of living
  adequate for attainment of the highest level of
  physical and mental health

6
Provisions in Art 43 (1) of the Constitution of
Kenya

• Every person has the right
• (a) to the highest attainable standard of health,
  which includes the right to health care services,
  including reproductive health care
• (b) to accessible and adequate housing, and to
  reasonable standards of sanitation
• (c) to be free from hunger, and to have adequate
  food of acceptable quality
• (d) to clean and safe water in adequate
  quantities
• (e) to social security and
• (f) to education.

7
Other guarantees in the Constitution that are
relevant to health care

• In addition to Article 43 (1) (a), the
  Constitution also guarantees
• To nurture and protect well-being of all
  (Preamble).
• Implementation of international/regional
  conventions and commitments (Art. 2 (6))
• Respect and protection of dignity for every
  person (Article 28)
• Equality and freedom from discrimination (Article
  27)
• Emergency medical treatment (Article 43 (2))

8
Implications of Article 43 (1) to health care
programming

• Not only is health care (including RH care) a
  right, access to quality health services becomes
  a right
• Not only is access to adequate housing and
  reasonable standards of sanitation a right,
  access to a healthy environment becomes a right
• Not only is access to food a right, everyone has
  a right to good nutrition
• Social security is a right can social health
  insurance also be considered a right?

9
Equity in health care programming

• The Right to Equality and freedom from
  discrimination (Art. 27) encompasses within
  itself the right of the poor and marginalised
  persons to adequate/quality health care
  regardless of their ability to pay.

10
Right to life

• Article 26

11
Article 26

• (1) Every person has the right to life.
• (2) The life of a person begins at conception.
• (3) A person shall not be deprived of life
  intentionally, except to the extent authorised by
  this Constitution or other written law.
• (4) 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.
• Remember the Big Debate in the run up to the
  Referendum, especially around sub-Articles 26 (2)
  and (4).

12
On The Big Debate

• NEW ABORTION LAW IS STILL BAD
• FOR WOMEN
• Whichever way the referendum will go, abortion
  may still be the only birth control option
  available since many women lack access to
  contraception
• Japheth Mati in STAR Thursday 29 April 2010

13
Article 26 (4)

• 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.

14
Arising from Art.26(4), abortion may be granted
if

• (a) There is need for emergency treatment, or
• (b) Life or health of the mother is in danger.
• Note
• (i) (a) and (b) mean the same- emergency
  treatment always implies danger to life or
  health!
• (ii) Recognition of life OR health as ground
  for abortion is an advantage over what exists in
  Section 240 of Penal Code- life only.
• (iii) MPDB Code of Professional Conduct and
  Discipline considers health of the mother or
  baby (legal basis?)

15
A number of questions arise from Art 26(4)

1. Who is a trained health professional?
2. At what stage is emergency treatment a must?
3. What constitutes danger to life of the mother?
4. What constitutes danger to health of the mother?

16
Questions arising from Art 26(4) (Contd)

• Is there any emergency that does not threaten
  life or health of the mother?
• What definition of health is implied here? (NB
  WHO definition of health includes mental and
  social wellbeing)
• Is there a need for a list of conditions (or
  situations) that may necessitate emergency
  treatment?
• etc.

17
Questions arising from Art 26(4) (Contd)

• Note
• Lists may provide examples of conditions that are
  considered life-threatening, but must not
  preclude a doctors clinical judgment.
• There is risk of Lists being interpreted
  restrictively, or be considered exhaustive, when
  in fact they cannot be.

18
Who among these is a trained health
professional?

• Obstetrician Gynaecologist?
• Registered medical practitioner?
• Registered Clinical Officer?
• Registered Nurse?
• Registered Midwife?
• Any health worker trained to competency?
• All of the above?
• (None of the above?)

19
MPDB guidelines on abortion

• . it is strongly advised that the practitioner
  consults with at least two senior and experienced
  colleagues, obtains their opinion in writing and
  performs the operation openly in hospital if he
  considers himself competent to do so in the
  absence of a Gynaecologist.
• Note
• (i) MPDB does not restrict performance of TOP to
  gynaecologists only.
• (ii) One of the two colleagues is often a
  psychiatrist- requested to establish risk to life
  of the woman

20
These MPDB guidelines may obstruct rather than
facilitate access to safe abortion services

• Consulting at least two senior and experienced
  colleagues- how possible in rural areas?
• Restricting performance of abortion procedures to
  hospital- TOP often an OP procedure not always
  surgical!
• Psychiatric assessment- people resent psychiatric
  label expensive, unnecessary delay, and invasion
  of dignity (Art 28)

21
Providing safe abortion services within the law

• Safe abortion services are those provided by
  trained health workers using proper equipment and
  correct techniques, and supported by policies,
  regulations and a functional health
  infrastructure, including equipment and supplies
  (WHO).
• Performed under these conditions TOP is a safe
  medical procedure
• Unsafe abortion implies abortion performed
  outside of above conditions.

22
A time for a paradigm shift?

• In order to minimize the problem of unsafe
  abortion and its impacts there is an urgent need
  for a paradigm shift in strategic emphasis (at
  all levels), from the present day focus on
  post-abortion care to provision of safe
  abortion services, within the law.
• This is an opportunity provided for in Art 26 (4).

23
Women are often denied safe abortion services
within the law

• Provider related factors
• Lack of knowledge of the law, or failure to apply
  the law, by providers
• Lack of adequately trained providers
• Negative provider attitudes, biases and
  conscientious objection
• Lack of awareness (or neglect) among providers of
  their ethical/legal obligations to provide women
  in need with appropriate information on where
  safe abortion services can be obtained.

24
Women are often denied safe abortion services
within the law (contd)

• Medical policies and practices
• Insistence on unnecessary/outdated techniques
  e.g. hospitalization, use of GA
• Opposition to task-shifting, and other regulatory
  bottlenecks
• Community related factors
• Lack of public information about the law
• Lack of awareness about facilities providing
  abortion services
• Lack of awareness (among women) of need to report
  early in pregnancy

25
Conclusions

1. There are opportunities in the Constitution of
   Kenya for enhancing health in general, including
   reproductive health and rights of Kenyan women,
   despite the restrictive stance on abortion.
2. Health care providers must familiarise themselves
   with these Constitutional provisions for
   effective implementation of safe abortion
   services, and for avoidance of unwarranted access
   barriers to what should be legally accessed by
   women in need.

26
...Conclusion

• The relevant regulatory authorities and
  professional bodies have a responsibility to
  ensure their members are updated on the
  provisions in the Constitution regarding health
  care including reproductive health care.
• The government has a responsibility to ensure
  safe abortion services are equitably accessed by
  all women in need, by promoting positive policies
  which eliminate unnecessary access barriers to
  abortion services within the law.