Kenya Legal and Ethical Issues Network on HIV (KELIN) and Africa Gender and Media Initiative Trust (GEM) together with five women living with HIV have filed two petitions dated 9 December, 2014 in the High Court of Kenya (Constitutional and Human Rights Division) in Nairobi. The cases will have far reaching ramifications for the realization of the right to reproductive health care and services.
The cases are about the forced and coerced sterilization of five women living with HIV. The five women were sterilized in health facilities in Nairobi County through a procedure known as bilateral tubal ligation. They were forcefully sterilized under different circumstances as follows:
1. Threats to withhold food portions and baby formula milk;
2. Inducement with the promise to pay medical and maternity fees;
3. Lack of provision of essential information to enable the women make informed decisions; and
4. Lack of provision of choices of other forms of family planning methods for the women.
The procedures took place at Pumwani Maternity Hospital, Marie Stopes – East Leigh Clinic and Marura Maternity and Nursing Home.
The respondents in the matter are:
Médecins Sans Frontières – France;
Pumwani Maternity Hospital;
Marie Stopes International;
Marura Maternity and Nursing Home;
The County Executive Committee Member in charge of Health Services – Nairobi County; and
Cabinet Secretary – Ministry of Health, Republic of Kenya.
2.0 LEGALISSUES ARISING
The Petitioners intend to prove that as a result of the illegal and unconstitutional sterilization, the following constitutional rights were violated:
1. The right to life under Article 26 (1)
2. Equality and freedom from non-discrimination as under Article 27 (1-8)
3. The right to human dignity as under Article 28
4. Freedom and security of the person under Article 29 (d and f)
5. Freedom of expression and specifically freedom to seek and receive information or ideas under Article 33(1)
6. The right to privacy under Article 31
7. The right to access to information held by another person and required for the exercise or protection of any right or fundamental freedom under Article 35 (1) (b)
8. The right to the highest attainable standard of health which includes the right to health care services and reproductive health care under Article 43 (1) (a)
9. The rights of the consumer to be given services of reasonable quality and the information necessary for them to gain full benefit of the services and protection of their health under Article 46 (1) (a-c)
The Petitioners intend to prove that the said violations are not justifiable under Article 25 (a) of the Constitution of Kenya, 2010and are therefore unlawful. In addition, the Petitioners intend to prove that the violationsare not reasonable or justifiable in an open and democratic society based on human dignity, equality and freedom under Article 24 (1) of the Constitution. The Petitioners will rely on medical reports and sworn affidavits of their testimony of events.
The Petitioners seek from the court the following:
i. A declaration that the sterilization of these women in these circumstancesviolated their human and constitutional rights;
ii. A declaration that the act of threatening to withhold a provision of food portions, formula milk and other lifesaving ingredients in order to force a person to undergo sterilization by tubal ligation is a violation of human and constitutional rights;
iii. A declaration that women living with HIV have equalreproductive health rights as all women including the right to freely and voluntarily determine if, when and how often to bear children;
iv. An order directing the respondents to put in place guidelines, measures and training for health care providers and social workers that are in line with internationalguidelines on sterilization and informed consent;
v. An order directing that there be instituted a mandatory seven (7) day waiting period between the time a woman freely requests tubal ligation and performance of the surgery;
vi. An order for the issuance of a circular by the Ministry of Health directing all medical and health facilities that forced and coerced sterilization of women living with HIV is not a government policy.
For further information contact:
ALLAN ACHESA MALECHE
KENYA LEGAL AND ETHICAL ISSUES NETWORK ON HIV & AIDS (KELIN)
KINDARUMA ROAD, OFF NGONG ROAD, KILIMANI
PO BOX 112-00200, KNH
MOBILE NO: +254 708 389 870