The Controversies Surrounding the Reproductive Health Bill 2019

Reproductive health is defined by WHO as the state of complete physical, mental and social well-being in all matters relating to the reproductive system and to its functions and processes. This is not merely the absence of diseases or infirmities but the ability have a satisfying and safe sex life, the capability to reproduce and the freedom to decide if, when and how often to do so. 

In Kenya, reproductive health is enshrined under Article 43 of the Constitution that provides that every person has the right to the highest attainable standard of health which includes the right to health care services including reproductive health care. There has been no statute enacted that comprehensively covers issues of Reproductive Health since the promulgation of the 2010 Constitution.  It is not for lack of trying; there have been two failed attempts at enacting the Reproductive Health Bill in 2014 and 2020.

The objective of the Reproductive Health Bill 2019 (the Bill) was to provide for the right to reproductive health care, to set the standard of reproductive health, provide for the right to make decisions regarding reproductive health and for connected purposes. The Bill was in my opinion, a progressive and relevant piece of legislation that comprehensively covered issues pertaining to reproductive health such as access to family planning, assisted reproduction including surrogacy and in vitro fertilization, provision of adolescent friendly reproductive health services, safe motherhood, termination of pregnancy and elaborates the roles of the national and county governments in ensuring that the objects of the Reproductive Health Bill are met.

If the Bill was so good, the question then is what are the reasons of its failed enactment? The Bill failed for various reasons including; lack of political goodwill, lack of public awareness, misinformation ans strong opposition from civil societies and religious groups that viewed the Bill as one that promoted moral decay by allowing abortions and promoting adolescent sex.

The Bill exemplified the provisions of Article 26 of the constitution that allows abortion only if certain pre-conditions are met; if in the opinion of a trained professional, there is need for emergency treatment or when the life or health of the mother is endangered. The Bill expanded the scope of allowed abortions by adding one other pre-condition being; where if in the opinion of a trained professional, the existence of substantial risk that the fetus would suffer a severe physical or mental abnormality that is incompatible with life outside the womb.

The controversies that arise as a result of the above provision of the constitution and Reproductive Health Bill are twofold. One being who does the law refer to when it speaks of a trained professional, is it a doctor? A nurse? Or a clinical officer? The second issue is what is meant by health of the mother; is it the physical health? The psychological/mental health? Or the emotional health of the mother?  The Reproductive Health Bill should be able to answer these question and seal the overt loopholes of the constitution by narrowing down the scope of legally allowable abortions and limiting the recommending trained professional to licensed medical doctors.

Further, there was a belief that the Bill promoted adolescent sex. This cannot be further from the truth. The Bill echoed the National Adolescent and Reproductive Health Policy and appreciated the times we live in by providing a structured and age-appropriate mechanism within which adolescents can be educated on their reproductive health rights. The Bill structured the adolescent friendly reproductive health services to include mentorship programs, spiritual and moral guidance, training on livelihood and life skills, vocational training and counselling on abstinence, consequences of unsafe abortion, sexually transmitted infection and HIV & AID, substance and drug abuse. The decision to include adolescent friendly health services was informed by scientific research that had proven that adolescent friendly reproductive health education resulted in a steep reduction of numbers of teenage pregnancies and unsafe teenage abortions.

Another distinct feature of the Bill was the introduction of assisted reproduction through in vitro fertilization and surrogacy. This is a novel and critical area that was geared towards governing surrogacy agreements by providing the rights and responsibilities of parties to a surrogacy arrangement. Further, it regulated in vitro fertilization by providing for conditions and limitation for which it can be conducted. Additionally, the Bill emphasized on the right to confidentiality for individuals receiving assisted reproduction services.

It is apparent that women, young adolescent girls and boys and couples experiencing difficulty in siring children were the target beneficiary of the Bill. The benefits of the Bill to the aforementioned groups outweigh the perceived disadvantages. It is therefore imperative that all the stakeholders find a middle ground, engage in consultative meetings, conduct rigorous civil education and that there be a deliberate attempt to address the concerns of all stakeholders before there can be a third attempt at passing the  Reproductive Health Bill into the Reproductive Health Act.  It is my hope as is many Kenyans that that the third time’s a charm.

THE NEW NORMAL

The Coronavirus disease has seen many countries close their borders and many activities Econo-social activities such as businesses, education and religious activities come to a standstill. In Kenya, the disease has affected lives and livelihoods for close to three months. Its effects are far-reaching and have affected almost all areas of life; most especially the economic and social spheres of life. 

Like other world leaders, the Ministry of Health led by the Cabinet Secretary of the Ministry, Mutahi Kagwe and His Excellency President Uhuru Kenyatta, announced stern measures in order to protect its citizens. These measures ranged from implementing counties and area lockdown, closing the international borders, the imposition of a night curfew, restricting social gathering of persons exceeding fifteen in number among others. Further, the Ministry of Health promoted a vigorous ‘stay at home’ campaign policy encouraging employers to allow its staff to work from home. 

The restrictions have had a tremendous effect on the economic health of the country and the livelihoods of many Kenyans. Many businesses have been forced to remain shut thereby sending employees home with unpaid leave whereas the businesses that remained open struggled to make ends meet.   

The global community has come to the realization that Covid-19 is here to stay in the long term and that creating a new normal would be the most rational way to deal with the virus. Noting that the current measures are economically unsustainable, world leaders have been tasked to come up with sustainable measures that ensure the safety of its people and the continuity of business.  This has proven to be a tough balance to achieve as countries such as China, Germany and South Korea that have allowed the reopening of businesses such as retail stores, bars, restaurants and nightclubs have seen a second wave of the global pandemic.

 

The World Health Organisation (WHO) advises that as we consider the transition and reopening of our economies, we must consider that there are no quick wins and that complexity and uncertainty lie ahead. This means that we should be ready to take rapid measures, introduce and remove measures, gradually ease restrictions while constantly monitoring the effectiveness of measures and public response. 

Kenyans especially those in the informal settlement do not have the luxury of staying at home as they survive on their daily earnings. Even those in the formal settlements have had to use their savings to get through the three months in the wake of pay cuts and suspension of many contracts. Consequently, Kenyans have gradually resumed their businesses and are increasingly finding alternative ways of earning a living. This gradual move back to normal has been directly proportional to the increase of confirmed cases. In recent week, we recorded the highest number of confirmed cases. There is, therefore, an urgent need for the Ministry of Health to issue sustainable measures that promote work and protect the health of Kenyans.  

No doubt many Kenyans are at the forefront of the battle; our behaviour will certainly determine the Virus’ behaviour. We should not trivialize the importance of personal initiatives and responsibility. Most imperative is that every Kenyan follows simple measures such as cleaning our hands and maintaining social distancing. There is a call for patience and perseverance as scientists tirelessly work towards coming up with a vaccine. If each citizen acts responsibly, we will flatten the curve and defeat the virus. 

The new normal is here with us, lets us all adjust, observe the measures put in place, be patient and persevere. 

 

 

 

Decoding Laws on Cyber Bullying; Redress for victims of Cyber Bullying.

Decoding Laws on Cyber Bullying; Redress for victims of Cyber Bullying. 

By Naomi Wachuka

It is quite unfortunate that the unparalleled advantages of technology and in particular social media have also brought with it unprecedented pain and damage to our social fabric. Bullying and harassment have become a norm in social media platforms such as Twitter, Facebook and Instagram and other emerging platforms. Initially a vice prevalent in schools and workplaces, bullying in Kenya has now found a seat at the very altar of modern human interaction. Worse, the bullies are merciless and hide under presumably faceless user names/handles and in same cases groups.

Kenyans on social media have either been a victim or perpetrator of cyberbullying. Cyberbullying is not limited to posting or tweeting untrue or defamatory messages. It involves retweeting, liking tweets, sharing posts.

It is an unfortunate reality that Kenyans can be unforgiving and vicious on social media. And no one is exempted. In the recent past, social media has torn the status and reputation of figures such as West Pokot Governor John Lonyanagapuo, renown journalist Yvonne Okwara and erudite lawyer Donald B. Kipkorir. Most recently Brenda’s (Covid-19 patient zero) reputation was mercilessly torn apart on social media after her interviews on television and radio.

For a long time, the only way to tackle cyberbullying was promoting the importance of digital empathy and digital etiquette. This was a completely unenforceable and very subjective solution. Kenyan law had been passive on cyber harassment for a long time but it has finally caught up with the times through the enactment of the Computer Misuse and Cyber Crime Act 2018. Now victims of cyber harassment have an avenue to seek redress. 

Section 27 of the Computer Misuse and Cyber Crime Act 2018 provided the following on cyber harassment.

1) A person who, individually or with other persons, willfully communicates, either directly or indirectly, with another person or anyone known to that person, commits an offence, if they know or ought to know that their conduct—

(a) is likely to cause those persons apprehension or fear of violence to them or damage or loss on that persons’ property; or

(b) Detrimentally affects that person; or

(c) Is in whole or part, of an indecent or grossly offensive nature and affects the person.

(2) A person who commits an offence under subsection (1) is liable, on conviction, to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding ten years, or to both.

The enactment of the Act elicited  reactions from various sections of people. For instance, the Bloggers Association of Kenya filed a petition in 2018 seeking among other prayers, suspending the coming into force of the Computer Misuse and Cybercrimes Act, 2018 and in particular the coming into force of Sections 27 among other sections of the Act, 2018 for reasons that various sections of the act were unconstitutional as they violated the constitutional freedom of expression as prescribed under Article 33 of the Constitution of Kenya.

After hearing the petition, the Learned Justice Makau dismissed the petition and held that the Act does not infringe or threaten the fundamental freedoms and rights enshrined in the Constitution and that the challenged sections were constitutional. Most importantly, the Court held that in exercising the freedom of expression, every person shall respect the rights and reputation of other and that the freedom of expression does not extend its immunity to speech that amounts to harassment of another person.

In light of the foregoing, a victim of cyber harassment can now file a formal complaint with the police and avail to the police evidence of the harassment. It is worth noting that cases of cyberbullying are investigated by DCI Kenya.

Alternatively, a victim of cyberbullying may report an incident to the Communication Authority who shall with the help of DCI investigate the incident reported, in either of the following manner;

1.      Registering a form complaint with the communications authority through the National KE-CIRT/CC website > https://www.ke-cirt.go.ke/<,

2.      Sending a letter detailing your case to the Director-General, CA Kenya via P.O. Box 14448 – 00800 Nairobi

3.      Reporting the incident physically to the CA Office at CA Centre, Waiyaki Way.

4.      Sending a detailed email to incidents@ke-cirt.go.ke.

5.      Calling the following hotlines: +254703042700 or +254730172700.