The High Court of Kenya at Milimani has directed parties in Rachael Mwikali & 3 Others V The Cs, Ministry Of Health; (Kenya Obstetrics Gynecologist Society & Katiba Institute) Interested Parties High Court Petition 27 of 2022) to appear in court on 18th September 2024 for hearing of the case challenging the constitutionality of the National Reproductive Health Policy 2022-2032. This is a case challenging the constitutionality of the National Reproductive Health Policy 2022-2032 on both procedural and substantive elements.
The Court made this order on 19th March 2024 after it emerged that the Attorney General had not complied with directions given by the court on 30th October 2023. On that date, the court had directed that the parties file responses to the petition, and thereafter given directions on the filing of submissions. The Court has now directed that the Attorney General file its submissions by the 2nd April 2024, and appear in court on the 18th September 2024 for hearing.
KELIN and other stakeholders have challenged the constitutionality of the Policy on the following grounds:
- Lack of public participation:
The Policy was passed on 5th July 2022, the culmination of a process that the Petitioners contend was unconstitutional for want of public participation. Prior to passing the Policy, the Petitioners, as well as other actors and stakeholders who work on sexual and reproductive health and rights, urged the Ministry to undertake a public participation process that was meaningful by involving the views of the public with a view to ensuring having a policy that would speak to the lived realities of Kenyans and ensure that service provision and reproductive health care was available to all. However, the Ministry failed to do this. First, as it began the process of developing the policy in 2017, it failed to involve stakeholders or even members of the public. Eventually, in March 2022, it invited the petitioners and other stakeholders to seek their views on provisions to be included in the policy, but this turned out to be a cosmetic process: the Ministry refused to provide copies of the document beforehand, and refused to consider suggestions for inclusion of policy provisions that would ensure the attainment of the highest standard of reproductive health as provided for under the Constitution of Kenya, 2010.
- Violation of the right to the highest attainable standard of health:
The Policy that was passed contains various unconstitutional provisions, the implementation of which will greatly violate the rights of Kenyans, particularly with respect to the right to reproductive health under Article 43(1) of the Constitution of Kenya, 2010. This includes:
- Exclusion of certain populations, particularly young women and girls below the ages of 18 and in certain cases from ages 21 and 25, from accessing or receiving critical reproductive health care services or information including information on reproductive health, as well as fertility treatment.
- The Policy also imposes unreasonable requirements on parental consent prior to the provision of reproductive health services all of which will constitute additional barriers for adolescents and young people in attaining the highest standard of health. Moreover, by imposing the requirement of parental consent for provision of reproductive health services, the Policy fails to recognize that many reproductive health services are offered on an emergency basis, and further fails to consider that the reality for many Kenyan children is that parental consent for treatment cannot be obtained without hardship.
- The policy further infringes on innovation and academic freedom by limiting the conduct of research on reproductive health by giving unrestricted power to the Director General for Health to vet all research in reproductive health.
The sum of these provisions is that is they hinder access to the highest standard attainable health; they are discriminatory and there is no reasonable justification as to why there are limitation of rights as outlined in the Policy. The Petitioners contend that Policy is therefore defective in form and substance.
While they are disappointed given the long wait to have their next day in court, the petitioners look forward to attending court on 18th September 2024 with a view to continuing advocacy for a policy regime that looks to the protection of the right to reproductive health for all.
For more information:
Nyokabi Njogu
Advocate for the Petitioners
Kuwinda Lane, off Lang’ata Road, Karen C
P.O. Box 112 – 00202 KNH Nairobi
Tel: +254 790 111578
