On November 6, 2023, the High Court in Malindi extended the stay order on proceedings for KELIN Vs County Government of Kilifi and County Assembly of Kilifi Petition No E002 of 2022, which questions the constitutionality of the Kilifi County Maternal, Newborn, and Child Health Act, 2016. This extension was granted due to procedural and substantive concerns. The court made this decision in response to the County Government of Kilifi’s counsel, who requested an additional four months (in addition to the initially granted three months) to ensure the law aligns with the constitution.
Despite the Petitioners’ willingness to take directions on hearing of the substantive petition because the unconstitutional law is still in place and consists of a continuing violation of the Constitution, the Court noted that since there had been some progress in development of the bill, it would allow the process to continue. The parties were directed to return to court on 25th January 2023 during which time the County is to update the court on the progress made in the development of the bill.
In the Petition, KELIN has demonstrated various aspects of the unconstitutionality of the law.
- 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 of time, all of which excluded a majority of women and girls from participating.
- 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 and shall return to court on 25th January 2023 as directed to receive a progress report from the County.
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
