October 3, 2008 The Committee on Economic, Social and Cultural Rights Re: Supplementary Information on Kenya, Scheduled for Review by the Committee on Economic, Social and Cultural Rights during its 41st Session
Distinguished Committee Members, This letter is intended to supplement the initial periodic report submitted by the government of Kenya, which is scheduled to be reviewed during the 41st session of the Committee on Economic, Social and Cultural Rights [the Committee]. The Center for Reproductive Rights (CRR), an independent non-governmental organization, and the Federation of Women Lawyers - Kenya ( FIDA Kenya), a national women’s rights nongovernmental organization based in Kenya, hope to further the work of the Committee by providing independent information concerning the rights protected in the International Covenant on Economic, Social and Cultural Rights. This letter is intended to provide a summary of the issues of greatest concern, as well as a list of questions and recommendations that we hope the Committee will take into account. The information in this letter is drawn from two recent reports by CRR and FIDA Kenya entitled Failure to Deliver: Violation of Women’s Human Rights in Kenyan Health Facilities, and At Risk: Rights Violations of HIV-Positive Women in Kenyan Health Facilities. These reports are being submitted with this letter. Women’s Reproductive Health Rights (Articles 2(2), 3, 10(2), 12, and 15(1) (b) of the ICESCR) Reproductive rights are fundamental to women’s health and equality and therefore states parties’ commitment to ensuring them should receive serious attention. Further, reproductive health and rights receive broad protection under the International Covenant on Economic, Social and Cultural Rights [the Covenant]. Articles 2(2) and 3 guarantee all persons the rights set forth in the Covenant without discrimination, specifically as to “sex, social origin or other status.”1 Article 10 (2) grants special protection to pregnant women before and after delivery, and Article 15(1) (b) guarantees everyone the right to enjoy the benefits of scientific progress and its applications.2 Article 12(1) of the
CENTER FOR REPRODUCTIVE RIGHTS 120 WALL STREET NEW YORK, NEW YORK 10005 TEL 917 637 3600 FAX 917 637 3666 WWW.REPRODUCTIVERIGHTS.ORG FEDERATION OF WOMEN LAWYERS-KENYA AMBOSELI ROAD OFF GITANGA ROAD P.O. BOX 46324 NAIROBI, KENYA TEL 254 (020) 387 0444 FAX 254 (020) 387 6372 WWW.FIDAKENYA.ORG
Covenant recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”3 In interpreting the right to health, this Committee, in General Comment 14, has explicitly defined this right to “include the right to control one’s health and body, including sexual and reproductive freedoms.”4 The Committee has further asserted that states parties are required to take “measures to improve child and maternal health, sexual and reproductive health services, including access to family planning … emergency obstetric services and access to information, as well as to resources necessary to act on that information.”5 General Comment 14 also specifically states that “[t]he realization of women’s right to health requires the removal of all barriers interfering with access to health services, education and information, including in the area of sexual and reproductive health.”6 Yet, despite these protections, the reproductive health rights of women in Kenya are being neglected and violated.
1. MATERNAL MORTALITY AND MORBIDITY The Committee has stated that a state’s failure to reduce maternal mortality is a violation of the right to health.7 Women in Kenya have a 1-in-25 lifetime risk of dying from a pregnancy-related cause. According to the 2003 Kenya Demographic and Health Survey [2003 KDHS] the maternal mortality ratio was 414 maternal deaths per 100,000 live births for the ten-year period prior to the 2003 survey.8 Currently, maternal deaths account for 15% of all deaths of women aged 15 to 49.9 Although the Ministry of Health and National Coordinating Agency for Population and Development has identified maternal health as a priority issue, the 2004 Kenya Service Provision Assessment Survey [2004 KSPAS] demonstrates that very few health care facilities in the country are fully equipped and prepared to provide comprehensive quality maternal health care.10 Of the facilities in the survey that provided delivery services, only 40% had all the necessary items for infection control; only 36% had all essential supplies delivery; only 26% had the necessary medicines and supplies for handling common complications; and only 13% were equipped to handle serious complications.11 In 2001, in its concluding observations on Kenya, the Committee on the Rights of the Child (CRC) asked the government to take effective measures to reduce the incidence of maternal mortality.12 In its initial periodic report to this Committee, the Kenyan government states that it “plans to improve maternal health services through promotion of safe motherhood,”13 but does not give specific details on how it is going to address pregnancy and childbirth-related complications, one of the leading causes of morbidity and mortality for Kenyan women.14 The majority of maternal deaths in Kenya are due to obstetric complications that could have been prevented with adequate medical care.15 As the 2003 KDHS noted, “Proper medical attention under hygienic conditions during delivery can reduce the risk of complications and infections that may cause death or serious illness either to the mother, baby, or both.”16 Women who were interviewed by FIDA Kenya/CRR for a fact-finding report on women’s experiences in maternal health care facilities reported decades of unhygienic
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conditions, humiliating treatment, and lack of medical attention in the health facilities where they delivered babies. In some cases, women received little or no care during labor. For instance, they described having to find the delivery ward on their own, and giving birth alone or with the assistance of another patient or an inexperienced trainee. Women further expressed enduring an unreasonable amount of pain and discomfort during post-delivery stitching, which was often poorly performed. “When stitching was done it was like they were stitching a sack,” one of the women observed.17 Most egregiously, one woman reported that, in an overtly criminal act, her genitals were mutilated during the delivery of her child and that she has faced overwhelming obstacles in her struggle to obtain redress.18 She also stated that a doctor at another medical facility told her that he had seen “many” other cases of mutilation like hers.19 Such experiences have long lasting and harmful repercussions and shape women’s attitudes about childbearing and seeking reproductive health care for years to come. It is not surprising that the 2003 KDHS found that women are shifting away from seeking the services of doctors during delivery, which puts them at greater risk.20 2. VIOLATIONS OF WOMEN’S RIGHTS IN MATERNAL HEALTH CARE FACILITIES Kenyan women are not benefiting from special protection before and after delivery, guaranteed in the Covenant’s article 10 (2), due to the government’s reservation to this provision. In 2007, in its concluding observations on Kenya, the CRC asked the government to “Strengthen the support available to women before and after childbirth by taking appropriate measures including the removal of the reservation to paragraph 2 of article 10 of the International Covenant on Economic, Social and Cultural Rights, of 1966.”21 This Committee has recognized that article 10 (2) protects a fundamental right, and in the list of issues to be taken up in connection with the consideration of Kenya’s initial report, has asked the government to indicate the barriers that are preventing it from withdrawing its reservation. Implementing this provision would help reduce the negative experiences within the health sector that discourage women from seeking the health care necessary to prevent maternal mortality and morbidity. Although states are prohibited under the Covenant from discriminating in access to health care,22 women seeking health care services in Kenya encounter discrimination based on different grounds including their income, age, gender, and HIV status. Many women do not seek medical care because of the cost, while other women are denied entrance to health facilities because they are unable to afford the requisite deposit.23 Patients who cannot pay the entire cost of medical care upfront may also find that they are denied full services even if they are admitted to a facility. Interviews with health care users and providers also document that both public and private health facilities have an ongoing practice of detaining patients who are unable to pay their medical bills.24 Private facilities use detention to pressure patients’ relatives to pay the bills, while public facilities use detention for this purpose, and also to determine whether a patient is poor enough to qualify for a waiver.
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Recognizing that fees could prevent women from seeking and receiving maternal health care, the Ministry of Health decided to waive maternity fees in public dispensaries and health centers.25 Although this is a commendable gesture, the government will need to ensure that this move is accompanied by appropriate publicity and funding as health care workers are often reluctant to inform patients about waivers in general because the facility providing the waiver has to absorb the costs.26 Good quality care is not only respectful of a woman’s dignity during delivery,27 but also reduces the risk of complications and infections that may cause death or serious illness to the mother and the child.28 However, the results of the 2004 KSPAS, 2003 KDHS, and the interviews and focus groups conducted by FIDA Kenya/CRR revealed an alarming degree of rights violations occurring in medical facilities. 29 Women who delivered their children in medical facilities described egregiously substandard medical services and negligent and abusive treatment at the hands of health care providers.30 They recounted rough, painful, and degrading treatment during physical examinations and delivery, as well as verbal abuse from nurses if they expressed pain or fear. This ill treatment was exhibited by providers across the spectrum; including doctors, midwives, nurses, and other staff in both public and private facilities – although the problems seem particularly prevalent in government hospitals, especially at Pumwani Maternity Hospital (PMH) in Nairobi. PMH, East Africa’s busiest maternity hospital, has long been plagued by reports of abuse, neglect, and corruption, including accounts of unusually high maternal and infant mortality rates, stolen babies, and missing bodies of dead mothers.31 These problems have lasted for decades and indicate a systemic pattern of serious human rights violations and government failure to address the problems in an effective and transparent manner. While a number of task forces have been formed over the past decade to investigate reports of abuse and neglect, there has been no public process of accountability and redress.32 Gender-based violence, such as verbal and physical abuse of women seeking reproductive health care services, infringes on women’s fundamental rights to life, health and non-discrimination. 3. VIOLATIONS OF THE RIGHTS OF HIV-POSITIVE WOMEN While women in general often experience mistreatment and harassment in seeking delivery services in Kenyan health facilities,33 this abuse can be exacerbated for women who are HIV positive. Women living with HIV/AIDS often confront biases and negative attitudes from health care providers, particularly regarding their sexual and reproductive health practices, although discrimination against persons living with HIV is prohibited by law.34 The government has acknowledged in its initial periodic report that “HIV/AIDS remains a major health and development concern.”35 While it also identifies some measures that have been put in place to address this concern, 36 these are clearly not effective. HIV-positive women interviewed by FIDA Kenya/CRR described instances of discrimination as a result of their HIV status, when seeking antenatal and delivery services. These women are frequently turned away from public-health facilities or secluded in an area of the hospital away from other patients, and referred to private 4
hospitals specializing in HIV care, where costs are usually higher.37 Additionally, they are reprimanded for bearing children or being sexually active, and denied access to contraception and maternity services.38 The Committee has stated that in order to be acceptable, health facilities and services must be “designed to respect confidentiality and improve the health status of those concerned.”39 Pregnant women in Kenya may access testing to determine their HIV serostatus at antenatal clinics in conjunction with other antenatal services. While the Kenyan government has produced a number of key documents outlining how testing and counseling should be provided in these contexts and in general, and which contain a range of rights protections, these protections are not always realized in practice. Interviews verified that testing for HIV without the informed consent of the patient is a frequent occurrence. For instance an interviewee confirmed the implied policy that pregnant women are compulsorily tested for HIV, remarking that in the “government today, they have to test you. It’s not consensual …. If you refuse, they continue to make you come back until you agree [to be tested].”40 Another interviewee stated that some health care professionals will test a patient for HIV without her consent or knowledge if the provider pricks himself or herself while giving treatment.41 Testing pregnant women for HIV without their consent, regardless of the motivation, has grave human rights and public health implications. In addition to violating women’s human rights, it can diminish women’s confidence in the health care system and undermine the government’s efforts to improve maternal health and scale up the use of Prevention of Mother-to-Child HIV/AIDS Transmission (PMTCT) programmes. FIDA Kenya/CRR also interviewed women who sought treatment at public hospitals and only discovered that they had received an HIV test when they overheard a health care professional discussing their sero-status with others.42 These violations of confidentiality and lack of proper disclosure compromise the autonomy and privacy of women. In addition to violations of informed consent and confidentiality, women described violations around counseling, such as receiving inadequate pre- and post-test counseling for HIV testing. Pregnant women also lamented inadequate PMTCT and post-partum counseling, and having their questions dismissed when they tried to learn more.43 They stated that health workers were often unwilling to respond to their questions about HIV/AIDS and the ways in which they could avoid transmitting the virus to their children. “The significance of this violation cannot be over-stated considering that the major cause of HIV/AIDS among children is transmission during pregnancy, delivery, and breast-feeding.”44 In the absence of any intervention, children who are born to HIVpositive women have a 5%-10% risk of acquiring HIV during pregnancy, a 10 -20% risk of acquiring HIV during labour or delivery, and a 5-20% risk of acquiring HIV while breastfeeding.45 Treating an HIV-positive mother with antiretroviral medication during pregnancy and labour, as well as treating the child after birth, can decrease the risk of HIV contraction to 2%.46 In its concluding observations on Kenya, the Human Rights Committee (HRC) expressed concern at the unequal access to treatment experienced by people who are living with HIV, and asked the government to take steps to ensure equal access to treatment.47 5
However, women in Kenya still experience inadequate HIV-treatment counseling and access to treatment due to factors such as lack of adequately trained staff,48 and inappropriate or unaffordable fees.49 Interviewees stated that they did not receive adequate counseling about HIV-treatment decisions.50 Throughout Kenya, long-term antiretroviral (ARV) treatment is unavailable to many people who seek HIV treatment. For instance in 2006, 203,425 Kenyans were eligible for ARV treatment, but only 120,026 people received the medication.51 4. LACK OF ACCESS TO COMPREHENSIVE FAMILY PLANNING SERVICES AND INFORMATION Article 15 (1) (b) of the Covenant grants all persons the right to benefit from the advances of scientific research and its applications. This provision should be interpreted as requiring governments to ensure that women are able to enjoy the benefits of current research and advances in the reproductive health field through access to a full range of the most effective and safest contraceptive methods. In its General Comment 14, the Committee underlined the need for states parties to provide a full range of high-quality and affordable family planning services and required states parties to remove all barriers to information in sexual and reproductive health.52 Inadequate government funding for contraceptives, and logistical problems with contraceptive distribution, as well as dwindling donor support for family planning facilities, are creating barriers for contraceptive access, which in turn can result in unwanted pregnancies and unsafe abortions.53 The 2003 KDHS documents that the contraceptive prevalence rate among currently married women is only 39%.54 It states that nearly 20% of births are unwanted and another 25% are mistimed.55 Furthermore, according to the survey, the steady increase of contraceptive use among married women since the 1980s slowed considerably after 1998.56 Clearly, the family planning needs of Kenyan women are not being fulfilled. The costs associated with obtaining family planning services, such as transportation expenses or service fees, can pose significant obstacles. Women encounter formal and informal user fees at both public and private facilities. Although government policy provides that contraceptives at government facilities and government-supplied contraceptives at private facilities must be free-of-charge, women often still pay some kind of fee.57 For instance, according to the Family Planning Findings, “government facilities can and do charge a registration fee for the client card, while private facilities usually charge for a consultation fee.”58 When a woman does not have the money to cover those charges herself, she often must ask her partner for assistance; if her partner opposes her decision to use family planning; his denial of funds can prevent her from doing so. Even when a woman has access to funds, numerous other obstacles to obtaining family planning services abound, including stock outs and unavailability of a preferred contraceptive method, incorrect and biased family planning information, and absence of supplies necessary to insert certain methods.59 When a woman is told to return to a
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health facility at a later date due to these problems, she may not have the time or resources to return, and even if she does, she risks becoming pregnant while waiting. The plan of action of Kenya’s Adolescent Reproductive Health and Development Policy recognizes the importance of accurate and appropriate information and education on sexual and reproductive health.60 In practice, however, young people in Kenya often have trouble getting contraceptives or information about safe sex, which can lead to high rates of STIs including HIV, unplanned pregnancy, unsafe abortion, and maternal deaths. Accurate and appropriate information and education, which is a key component of effective, quality family planning services, can be hard for adults to access as well. For instance, health facilities run by faith-based organizations often provide limited services and information depending on the facility’s religious affiliation.61 This can lead to misinformation and unwanted pregnancy, the effects of which are long-lasting.62 5. THE DEVASTATING IMPACT OF KENYA’S RESTRICTIVE ABORTION LAW The Committee, in its General Comment 14, emphasizes state parties’ obligation to reduce women’s health risks and lower maternal mortality rates.63 Unsafe abortion is one of the most easily preventable causes of maternal mortality. Although the Kenyan government’s report to the Committee is silent on the matter, its report submitted to the CEDAW Committee in 2006 clearly stated that unsafe abortion is one of the major causes of the high maternal mortality rate in Kenya.64 Yet, earlier in 2005, in its concluding observations on Kenya, the HRC, expressed concern at the high incidence of maternal mortality due to “unsafe or illegal abortion” and asked the government to “improve access to family planning services for all women” and to review its abortion laws….”65 According to the Kenya Medical Association and the Kenya Obstetric and Gynaecological Society, unsafe abortion causes between 30% and 40% of the maternal deaths in the country.66 In spite of this, Kenya’s abortion law is among the most restrictive in the world, permitting abortion only to save the life of a pregnant woman. Even this exception can be difficult to realize as is suggested by the government’s report itself, which incorrectly omits this exception by stating only that “[a]bortion is illegal in Kenya.”67 The current Kenyan law does not provide an exception in cases of rape and incest, in spite of the high rates of sexual violence and limited access to contraceptives.68 Poorer women and girls are forced to have clandestine abortions, often in unsanitary conditions at the hands of untrained practitioners. By forcing women to undergo unsafe clandestine abortions, Kenya’s restrictive abortion law itself threatens women’s rights to life and health. Unsafe abortion takes a terrible toll on Kenyan women’s lives and places tremendous pressure on already resource-strapped health care system. According to the “National Assessment of the Magnitude and Consequences of Unsafe Abortion in Kenya”, a report released by the government, along with the Kenyan Medical Association and two NGOs, approximately 300,000 spontaneous and induced abortions occur each year, putting the national incidence of abortion per 1,000 women aged 15-49 at 44.7%.69 This same report 7
estimated that 20,000 women are treated in public hospitals annually with abortionrelated complications.70 This number does not capture the additional women who seek post-abortion care in private facilities.
6. LACK OF REDRESS AND REMEDY FOR VIOLATIONS SUFFERED IN THE HEALTH CARE SYSTEM Poor regulation of the health care industry in Kenya is enabling rights violations in health care facilities to continue without accountability. In its General Comment 14, the Committee notes the importance of providing effective remedies to those who suffer violations of their rights to health.71 In 2003, in its concluding observations on Kenya, the Committee on the Elimination of all forms of Discrimination Against Women (CEDAW Committee) expressed concern at the “continued prevalence of violence against women” and asked the government to “ensure that women and girls who are victims of violence and sexual harassment have access to protection and effective redress and that perpetrators of such acts are prosecuted and punished.”72 The Kenyan government has an obligation to provide accessible, affordable, acceptable, and quality health services, and to ensure that patients can seek redress when their rights are violated. However, FIDA Kenya/CRR interviews revealed that women who suffer rights violations in health care facilities in Kenya have very limited avenues of recourse. Very few formal channels exist to provide redress. Even though tort principles of common law can be used to bring a legal claim against negligent health care staff, a 2004 study by the Kenya Institute for Public Policy Research and Analysis [KIPPRA] explains that tort law is not well developed for medical cases.73 The study further notes that the lack of appropriate malpractice laws may compromise health care services,74 and that the poor enforcement of the existing laws leads to a void in effective channels for legal redress of rights violations in health care facilities.75 We hope the Committee will consider addressing the following questions to the government of Kenya: 1) What concrete measures does the government propose to reduce deaths due to pregnancy and childbirth-related complications? What steps are being taken to ensure that health care facilities are adequately equipped to provide quality, hygienic maternal health care services? 2) What specific steps has the government taken to protect women and girls from discrimination, gender-based violence and abuse in health care facilities? How does the government plan to ensure that the waiver of maternity fees in public hospitals and health facilities will be effective without compromising quality of services? 3) What measures has the government taken to ensure the recruitment, training, and retention of health workers? What had the government done to improve the 8
training of health care staff providers about patients’ rights and to reduce the abuse and neglect of patients by medical staff? 4) What is the government doing to address violations around counseling, testing, confidentiality and treatment that HIV positive women experience? 5) What steps has the government taken to improve access to contraceptives, and to ensure that women and adolescent girls are provided with comprehensive and accurate information about contraceptives? 6) What measures has the government taken to modify the country’s abortion law and to safeguard the lives of women and girls, since unsafe abortion is one of the primary causes of maternal mortality in Kenya? What has the government done to ensure post-abortion care for complications and reproductive health counseling? 7) What concrete mechanisms has the government put in place to ensure that women are able to report and seek redress for discrimination, gender-based violence and abuse in health facilities?
We suggest that the Committee consider making the following recommendations: 1) Kenya should take concrete steps towards withdrawing its reservation to article 10 (2) considering the high incidence of maternal deaths in the country. 2) Kenya should address problems in the delivery of maternal health care, which contribute to preventable maternal deaths, including for women who are living with HIV, by: implementing and enforcing the Ministry of Health’s Maternal Care Standards, which protect women’s right and health, and enacting a law that would govern maternal health care and ensure the protection of women during childbirth. The government should also ensure that specialized obstetric care is offered to women who are HIV positive. 3) The government should remove financial barriers that result in the denial of or delays in receiving necessary maternal health care services, including ARV treatment for HIV positive women, by implementing the Ministry of Health’s stated commitment to free maternity services in public facilities and providing the finances and staffing necessary to make it a reality. 4) The government should ensure that proper testing, counseling, and disclosure procedures are followed by: implementing guidelines around HIV testing; ensuring that health care providers understand the components of pre-test counseling for HIV, maintain appropriate informed consent safeguards for HIV testing, particularly for pregnant women, and understand and maintain appropriate confidentiality procedures for disclosing a patient’s HIV sero-status. 9
5) The government should improve access to contraceptives by developing comprehensive guidelines on the obligations of all health-facilities to provide accurate and comprehensive family planning services information, and developing a clear referral policy for facilities that cannot or choose not to provide certain family planning information or services. The government should also assure equal and consistent contraceptive distribution to non-public institutions. 6) The government should reduce the incidents of unsafe abortion, which is one of the main causes of maternal mortality in Kenya by reviewing and updating current reproductive health policies and guidelines, including training for health providers, to guarantee access to safe abortion services within the existing law. 7) The government should ensure that there is a concrete process of accountability and redress for abuses and neglects in health centers, including establishing appropriate complaints mechanisms. The government should also ensure that victims of these abuses and neglects receive effective remedy and access to justice.
We hope that this information is useful to the Committee during its review of the Kenyan government’s compliance with the Covenant. If you have any questions, or would like further information, please do not hesitate to contact the undersigned.
Sincerely,
Patricia Nyaundi Executive Director Federation of Women’s Lawyers – Kenya
Onyema Afulukwe Visiting Attorney International Legal Program Center for Reproductive Rights
Ximena Andión Advocacy Director International Legal Program Center for Reproductive Rights
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International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), U.N. GAOR, Supp. No. 16, at 49, U.N.Doc A/6316 (1966), 999 U.N.T.S. 3 (entered into force Jan. 3, 1976),[hereinafter Economic, Social and Cultural Rights Covenant], art. 2 (2) and art. 3. 2 Economic, Social and Cultural Rights Covenant, supra note 1, art. 15(1) (b). 3 Economic, Social and Cultural Rights Covenant, supra note 1, art. 12 (1). 4 Committee on Economic, Social and Cultural Rights, Gen. Comment 14, The Right to the Highest Attainable Standard of Health, para. 8, U.N.Doc. E/C.12/2000/4 (2000) [hereinafter General Comment on Health]. 5 Id. para. 14. 6 Id. para. 21. 7 Id. para. 52. 8 Central Bureau of Statistics [Kenya], 2003 Kenya Demographic and Health Survey 237 (2004) [hereinafter KDHS 2003]. 9 Id. 10 NAT’L COORDINATING AGENCY FOR POPULATION AND DEV,. [KENYA], MINISTRY OF HEALTH [KENYA], AND CENTRAL BUREAU OF STATISTICS [KENYA], 2004 KENYA SERVICE PROVISION ASSESSMENT SURVEY, 128-140 (NOV. 2005) [hereinafter KSPAS 2004] 11 Id. at 117 and 135. Items for infection control include hand washing supplies, clean or sterile gloves, disinfecting solution and a sharps box. Id. at 131. 12 Concluding Observations of the Committee on the Rights of the Child: Kenya, 30th Sess., para. 44, U.N. Doc. No. CRC/C/15/Add.160 (2001). 13 Initial Periodic Report submitted by the Kenyan Government under articles 16 and 17 of the Covenant, Kenya, Implementation of the International Covenant on Economic, Social and Cultural Rights, 7 September 2006, para. 137, U.N. Doc. E/C.12/KEN/1 [hereinafter Kenya Government Report]. 14 KSPAS 2004, supra note 10, at 111. 15 See KSPAS 2004 supra note 10, at 111. 16 KDHS 2003, supra note 8, at 129. 17 Focus group discussion with unnamed participant, Kisumu, Apr. 5, 2007. 18 Center for Reproductive Rights and Federation of Women Lawyers – Kenya, Failure to Deliver: Violations of Women’s Human Rights in Kenyan Health Facilities, 35-36 (2007) [hereinafter Failure to Deliver]. 19 Id. at 36. 20 KDHS 2003, supra note 8, at 123. 21 Concluding Observations Committee on the Rights of the Child: Kenya, 44th Sess., paras. 36- 37, U.N. Doc. No. CRC/C/KEN/CO/2 (2007). 22 General Comment on Health, supra note 4, at para. 18. 23 Failure to Deliver at 52; Focus group discussions, unnamed participants, Nairobi, Apr.13, 2007 (“There were women who couldn’t go to the labour ward because they had not paid. They were giving birth outside.”); Peter Kimani, Tiny Miracles that Survive Gigantic Odds, THE NATION, Jan. 18, 2005 (documenting accounts of women dying “on the waiting bench because they could not raise a modest admission fee”). 24 FIDA Kenya/CRR interviews and focus groups, Nov. 15, 2006, Nov. 24, 2006, Feb. 1, 2007, Feb. 9, 2007, Apr. 5, 2007, Apr. 17, 2007, Apr. 20, 2007. 25 Failure to Deliver at 55. 26 RICARDO BITRAN & URSULA GIEDION, WAIVERS AND EXEMPTIONS FOR HEALTH SERVICES IN DEVELOPING COUNTRIES, 75 (Social Protection Unit, The World Bank, Social Protection Discussion Paper Series No. 0308, MAR. 2003), available at http://siteresources.worldbank.org/SOCIALPROTECTION/Resources/SP-Discussion-papers/Safety-NetsDP/0308.pdf (The paper’s authors emphasize that their findings and analysis are preliminary and should not be attributed to the World Bank). 27 Nat’l Nurses Ass’n of Kenya et al., Standards for Maternal Care in Kenya 7 (Dec. 2002)
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KDHS 2003, supra note 8, at 129; NATIONAL JOINT STEERING COMMITTEE FOR MATERNAL HEALTH IN KENYA 2002, STANDARDS FOR MATERNAL HEALTH IN KENYA, 7 (2002). 29 KSPAS 2004, supra note 10; KDHS 2003, supra note 8; FIDA Kenya/CRR interviews and focus groups, Kenya, Nov. 15, 2006, Nov. 24, 2006, Nov. 28, 2006, Nov. 29, 2006, Feb. 1, 2007, Feb. 2, 2007, Feb. 9, 2007, Apr. 5, 2007, Apr. 11, 2007, Apr. 17, 2007, Apr. 20, 2007. 30 FIDA Kenya/CRR interviews and focus groups, Kenya, Nov. 15, 2006, Nov. 24, 2006, Nov. 28, 2006, Nov. 29, 2006, Feb. 1, 2007, Feb. 2, 2007, Feb. 6, 2007, Feb. 9, 2007, Apr. 5, 2007, Apr. 11, 2007, Apr. 20, 2007. 31 Waweru Mugo & Martin Mutua, Pumwani Hires 100 Nurses to Curb Staff Shortage, THE STANDARD Dec. 22, 2004; Mike Mwaniki, 100 More Nurses for Pumwani, THE NATION, Dec. 23, 2004; Jeff Otieno, Babies Probe Turns to Pumwani, THE NATION, Sept. 10, 2004; Julius Bosire, Study Unveils Pumwani’s Pathetic State, THE NATION, Aug. 10, 2004; Editorial, Pumwani Needs a Total Overhaul, THE NATION, Dec. 9, 1999; Lucy Oriang, Maitha, Get Cracking on This Horror, THE NATION, Nov. 6, 2004; Editorial, Kombo on Pumwani, THE STANDARD, Dec. 21, 2004; FIDA Kenya/CRR interviews and focus groups, Kenya, Nov. 15, 2006, Nov. 28, 2006, Nov. 29, 2006, Feb. 1, 2007, Feb. 6, 2007, Feb. 9, 2007, Apr. 5, 2007, Apr. 11, 2007, Apr. 17, 2007, Apr. 20, 2007. 32 Failure to Deliver, supra note 18, at 41-43. 33 Id. at 26. 34 United Nations Population Fund (UNFPA) & World Health Organization (WHO), Sexual and reproductive health of women living with HIV/AIDS and their children in resource-constrained settings at 8 (2006), available at http://www.who.int/hiv/pub/guidelines/sexualreproductivehealth.pdf (last visited May 14, 2008) [hereinafter SRH & HIV/AIDS Guidelines]. 35 Kenya Government Report, supra note 13, at para. 6. 36 Id. at para. 30. 37 Interview with Jane, Kasarani Maternity Hospital, Kasarani, June 6, 2006. Jane, who was HIV-positive and eight months pregnant, indicated that she would deliver her baby at Kasarani Maternity Hospital, although the fee was difficult to afford. 38 Failure to Deliver, supra note 18, at 13, 43, 44. 39 General Comment on Health, supra note 4, at para. 12(c). 40 Interview with Edith Atieno, Post-Counselor – Women Fighting AIDS in Kenya (WOFAK), Nairobi, Nov. 21, 2007. 41 Interview with Allan A. Maleche, Lawyer – KELIN, Nairobi, Dec. 13, 2007. 42 Failure to Deliver, supra note 18, at 25. 43 Focus group discussion, Kisumu, June 1, 2007. 44 Center for Reproductive Rights, Pregnant Women Living with HIV/AIDS: Protecting Human Rights in Programs to Prevent Mother-to-Child Transmission of HIV, 3 fn 12 (August 2005), available at http://www.reproductiverights.org/pdf/pub_bp_HIV.pdf (last viewed September 24, 2008). 45 WHO and UNICEF, Guidance on Global Scale-up of the Prevention of Mother-to-Child Transmission of HIV http://www.who.int/hiv/mtct/PMTCT_enWEBNov26.pdf (last viewed May 14, 2008) [hereinafter PMTCT Guidance]. 46 SRH & HIV/AIDS Guidelines, supra note 36, at 31. According to PMTCT Guidance at 1, “[t]he overall risk can be reduced to less than 2% by a package of evidence-based interventions.” 47 Concluding Observations Human Rights Committee: Kenya, 83rd Sess., para 15, U.N. Doc. No. CCPR/CO/83/KEN (2005). 48 KSPAS 2004, supra note 10, at 26. 49 Failure to Deliver, supra note 18, at 54. 50 Focus group discussion, unnamed participants, Kisumu, May 30, 2007. 51 Ministry of Health (Kenya), Facts and Figures at a Glance: Health and Health Related Indicators at 37 (2006), fig. 9.9 [hereinafter Facts and Figures at a Glance]. 52 General Comment on Health, supra note 4, at paras. 14 and 21. 53 Jane Godia, Threatened Lives, THE STANDARD, Nov. 14, 2004, at 20; Joyce Mulama, Too Many Illegal Abortions, Too Little Contraception, MAIL & GUARDIAN ONLINE, Oct. 23, 2005 available at www.mg.co.za/articlePage.aspx?articleid=254381&area=/insight/insight_africa/ (last viewed October 3, 2008). 54 Failure to Deliver, supra note 18, at 14-15.
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KDHS 2003, supra note 8, at 110. Id. at 15. 57 Failure to Deliver, supra note 18, at 16. 58 Nat’l Coordinating Agency for Population and Dev., Ministry of Health & Central Bureau of Statistics, 2004 Kenya Service Provision Assessment Survey: Family Planning Key Findings 8 (2006) [hereinafter 2004 KSPAS FP]. 59 FIDA Kenya/CRR interviews and focus groups, Nov. 15, 2006, Nov. 16, 2006, Nov. 24, 2006, Nov. 28, 2006, Nov. 29, 2006, Feb. 6, 2007, Feb. 9, 2007, Apr. 5, 2007, Apr. 20, 2007. 60 Division of Reproductive Health, Ministry of Health [Kenya], Adolescent Reproductive Health and Development Policy: Plan of Action 2005-2015 3 (2005). 61 Failure to Deliver, supra note 18, at 20. 62 Id. at 20-21. 63 General Comment on Health, supra note 4, at para 21. 64 Combined Fifth and Sixth Periodic Reports submitted by the Kenyan Government under article 18 of the Covenant, Implementation of the International Covenant on the Elimination of All Forms of Discrimination against Women, 16 October, 2006, para. 128, U.N.Doc. CEDAW/C/Ken/6. 65 Concluding Observations Human Rights Committee: Kenya, 83rd Sess., para 14, U.N. Doc. No. CCPR/CO/83/KEN (2005). 66 Kenya Medics Call for Legalization of Abortion to Reduce Maternal Deaths, BBC Monitoring International Reports, Jan. 29, 2004. 67 Kenya Government Report, supra note 13, para. 76. 68 The Penal Code s. 240, Cap.63 of the Laws of Kenya, (Revised ed. 1985). The Ministry of Health, in its guidelines on the care of survivors of rape and sexual violence, has indicated that abortion may be available when pregnancy is a result of rape. However, the legal basis for this policy is not explicit in existing legislation. DIVISION OF REPRODUCTIVE HEALTH, MINISTRY OF HEALTH [KENYA], NATIONAL GUIDELINES: MEDICAL MANAGEMENT OF RAPE/SEXUAL VIOLENCE 9 (2004). 69 MINISTRY OF HEALTH [KENYA], A NATIONAL ASSESSMENT OF THE MAGNITUDE AND CONSEQUENCES OF UNSAFE ABORTION IN KENYA XI (2004). 70 Id. at 21. 71 General Comment on Health, supra note 4, at para. 59. 72 Concluding Observations Committee on the Elimination of Discrimination against Women: Kenya, 28th Sess., paras. 211 – 212, U.N. Doc. CEDAW, A/58/38 part 1 (2003). 73 David I. Muthaka et al., Kenya Inst. for Pub. Pol’y Res. and Analysis, A Review of the Regulatory Framework for Private Health care Services in Kenya 59 fn. 17 and 60. (KIPPRA Discussion Paper No. 35, Mar. 2004). 74 Id. at 60. 75 Id. at 59.
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