On 13th March 2023, the High Court at Malindi agreed to stay proceedings in KELIN Vs County Government of Kilifi and County Assembly of Kilifi Petition No E002 of 2022 which challenges the constitutionality of the Kilifi County Maternal, Newborn and Child Health Act, 2016 due to procedural and substantive elements. This happened after counsel for the County Government of Kilifi indicated that it was willing to amend the Act to ensure that it conforms to Constitution of Kenya, 2010 regarding provision of sexual and reproductive health and services and testing of children for HIV.
In the Petition, KELIN, challenges the process followed by the County government failed to meet the Constitutional threshold for meaningful participation as provided under Article 10, 174 and 196 of the Constitution as read together with the County Government Act. In that regard, KELIN and other stakeholders in support of the Petition noted that the sessions on public participation were only held at sub-county level, were not informed by prior copies of the bill and were held over a very short period, all of which excluded most women and girls from participating.
Moreover, the Act contains provisions that unjustifiably limit the rights and fundamental freedoms of women and girls in Kilifi County. Section 7 of the Act provides that termination of pregnancy will only be allowed in emergency cases, which is contrary to Article 26(4) of the Constitution which provides that termination of pregnancy is permitted where in the opinion of a health care provider, the health or life of the mother is in danger, or as provided under any other written law. Section 22(1)(b)(i) of the Act provides that children may be subjected to HIV testing without consent from a parent or guardian. This provision goes against the best interest of the child, and violates children’s right to non-discrimination, dignity, privacy and health.
KELIN and other stakeholders look forward to engaging with the County government with a view to having the unconstitutional provisions of the law repealed. The Petition will now be mentioned on 15th June 2023 for parties to record the progress made in amendment of the law.
For more information, contact:
Nyokabi Njogu
Advocate for the Petitioner
Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)
Karen C, Kuwinda Lane, Off Langata Road
Po Box 112 – 00202 KNH
Tel: 0790 111578
Email: litigation@kelinkenya.org
NAIROBI
