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 March 19th, 2024, for hearing of the case challenging the constitutionality of the National Reproductive Health Policy 2022. This is a petition filed against the Cabinet Secretary, Ministry of Health, challenging constitutionality of the National Reproductive Health Policy 2022-2032 due to procedural and substantive elements.
The Court made this order while it was admitting the Kenya Christian Professionals Forum as an Interested Party and directed that it, along with all other parties in the case file their responses by 14th November 2023. The Petitioners are then to file any supplementary affidavits that they may wish to file by 30th November 2023 and directed that thereafter, parties should file written submissions not exceeding ten pages each. The court declined to hear an interlocutory application seeking to stay the implementation of the KELIN and other stakeholders have challenged the policy on the following grounds:
- The 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.
- Unconstitutional policy direction which violates 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. This includes:
- Exclusion of certain populations, particularly young women and girls below the age, from accessing or receiving critical reproductive health care services or information and 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. in addition, there are many children who have the capacity to understand nature of treatment they require and therefore can consent to receive services.
- Secondly, the policy infringes on innovation and academic freedom by limiting the conduct of research on reproductive health by giving 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.
The petitioners shall comply with the directions of the court and looks forward to attending court on the 19th March 2024 to advocate 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
