The New Government’s Chance to Secure Reproductive Rights

Kenya’s sexual health rights are beholden to US decisionmakers. New legislators must take back control.

For too long, sexual and reproductive rights in Kenya have operated in a vacuum. Despite the constitution providing for the “highest attainable standard” of reproductive health, legislators have failed to enact any legislation on the issue, shooting down a bill in 2014 and another in 2019. The outgoing administration of Uhuru Kenyatta has opposed the delivery of sex education and contraception to adolescent and failed to support teenage mothers.

This has contributed to several worrying statistics. Kenya has the world’s third highest teenage pregnancy rate. Nearly 100 girls in the country contract HIV each week. Over 2,600 women and girls die annually from complications arising from unsafe abortion.

There is, however, a window of opportunity as Kenya embarks on a change of government following recently concluded elections. Although the rise of President-elect William Ruto, who campaigned on evangelical platforms and has criticised abortion, may be worrying, there remains a glimmer of hope in the new legislature. Kenya voted to replace many long-standing parliamentarians and, though still vastly outnumbered, women won more seats in parliament and more governorships than ever before.

If the new parliamentarians do not take the opportunity for reform, Kenya’s sexual and reproductive health will continue to be at the mercy of decision makers in Washington DC. The US provides around 95% of Kenya’s funding for sexual and reproductive health programmes and has a disordinate influence over Nairobi’s policies on these matters.

Take the global gag rule or Mexico City Policy. This law bans foreign NGOs who receive US funding from providing information, services, or referrals for safe abortions. It even stops them from advocating for abortion law reform – even if they use non-US funds for these activities. First enacted in 1984, every subsequent US administration has either withdrawn or reinstated the global gag rule by presidential order on coming to power. This has reduced a key aspect of Kenya’s sexual and reproductive rights, affecting tens of millions of women, to a game of political ping-pong being played out in Washington.

It gets worst. Last month, the US Supreme Court overturned Roe v Wade, curtailing the right to safe abortion in the land of the free. The landmark 1973 law, which made the US an outlier in the world, had galvanised the liberalisation of abortion rights across the world including in Africa through the Maputo Protocol. Its overturning could now have dire consequences in Kenya and beyond. For instance, the High Court in Malindi reaffirmed the right to abortion under the Constitution this March, citing Roe v Wade among other case law in its verdict. Yet following the repeal of the US law on 24 June, the Kenya Christian Professionals Forum filed an appeal against the High Court judgement.

The threat to women’s rights in Kenya is also exacerbated by the well-organised and growing interference by certain Western organisations. This movement is led by CitizenGO, a Madrid-based ultra-conservative advocacy group that works to curtail human rights under the guise of religion. Its strategies are a mixed bag of legal and illegal methods that include protests and picketing; secretive diplomacy; misinformation, and online harassment of pro-choice proponents. Ahead of Kenya’s August general election, these activists launched smear campaigns against pro-choice politicians, but their efforts fortunately failed. Several of their targets – such as Nairobi County Woman Representative Esther Passaris, then Nakuru County Senator and now Governor-elect Susan Kihika, and Suba North Member of the National Assembly Millie Odhiambo-Mabona – were all re-elected.

Kenya needs to break the shackles of neo-colonialism that cast a long shadow over its sexual and reproductive health policies. It needs to end its dependency on the US and fund its own essential services. This will not necessarily be straightforward, but Nairobi can find sources of revenue to fill the gap – not least from the KSh2 billion ($16.7 million) lost to corruption daily – with the right political will. Kenya’s new legislators need to enact the right to reproductive health, including access to safe abortion, as outlined in the Constitution.

The incoming President Ruto may not be the saviour Kenyan women were looking for. But after being at the mercy of the US for so long, Kenya at least has an opportunity in this transitionary moment to take control of its own health rights.

Stephanie Musho is a human rights lawyer and an Aspen Institute New Voices Senior Fellow.

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