On Thursday 7th March 2024, as part of its celebration of International Women’s Day, KELIN paid a courtesy visit to His Excellency the Governor of Kilifi County Gideon Mung’aro. This meeting was a follow-up on continued collaboration between KELIN and the Kilifi County Government in working together on drafting a rights compliant bill, the Reproductive Maternal Neonatal and Adolescent Health Bill 2023. This Bill is intended to repeal the Kilifi Maternal, Newborn and Child Health Act, 2016 which KELIN has challenged in Court in KELIN v County Government of Kilifi County & Another Petition E002 of 2022 for being unconstitutional on grounds described below. To address these concerns, the court had directed that the parties work together on a out of court settlement with a view to revising the proposed bill.
Present in the meeting were a representative from the office of the County Attorney, the County Solicitor General and the County Executive Member for Health and Gender. H.E Governor Gideon Mung’aro acknowledged KELIN’s position that the Kilifi County Maternal Newborn and Child Heath Act 2016 failed to meet the threshold of public participation as set out under Article 10, 174 and 196 of the Constitution of Kenya, 2010. He also noted that section 7 and 22 of the Act were unconstitutional as they were contrary to what is provided under the Constitution of Kenya, 2010. The Governor affirmed that any law passed by the county government should ensure that it does not contradict what is provided under the Constitution. H.E Mung’aro ultimately committed to fast tracking the legislative process and having the bill deliberated upon and assented into law within the next 4 months, that is, July 2024.
Petition E002 of 2022 before the court was filed on 22nd March 2022 by KELIN against the County Government and County Assembly of Kilifi challenging the constitutionality of the Kilifi County Maternal, Newborn and Child Health Act 2016 due to procedural and substantive elements. KELIN has outlined various aspects of unconstitutionality of the Act in the petition. These are:
- Lack of meaningful participation: the public publication undertaken by the county government failed to meet the threshold for meaningful public participation as provided under Article 10, 174 and 196 of the Constitution of Kenya as read together with the County Government Act. Kilifi had a total of 7 sub-counties and thirty-five county assembly wards. The public participation was only held at sub- county level and not accessible to all inhabitants of Kilifi County.
- Violation of the right to the highest attainable standard of health under Article 43 of the Constitution as read together with Article 26(4): 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 continued meaningful engagement with the County Government of Kilifi and political goodwill from the Governor’s esteemed office to ensure that Reproductive Maternal Neonatal and Adolescent Health Bill 2023 which repeals the unconstitutional provisions in the 2016 Act is assented into law.
For more Information please contact:
Nyokabi Njogu
Advocate for the Petitioner
Kuwinda Lane, Off Langata Road, Karen C
PO Box 112 – 00202 KNH Nairobi
Tel: +254 020 2515790
Office Mobile: + 254 790111578.litigation@kelinkenya.org
