Lessons from Kenya on sexual reproductive health and rights policy-making: the need to centre voices from Africa in global discourses

Introduction

In a world where the global anti-rights movement is gaining alarming influence, the relentless assault on the rights of women and girls, gender equality, and the LGBTIQ+ community has reached a critical juncture. Anti-rights actors have used and continue to use underhand tactics and backdoor advocacy to access and dominate policy and decision-making spaces, significantly impacting the policy landscape and provision of comprehensive sexual and reproductive health information and services. Such tactics create an environment that emboldens policymakers to go against rights established in national laws, global and regional human rights instruments, and existing evidence. The tactics range from pressure from foreign governments with threats of de-funding development initiatives and interference of religious groups in formulation of policies, to infiltration of policy-making bodies. As these tactics are playing out in Kenya and in several countries across Africa and the attacks escalate, it is imperative that we stand united to defend the fundamental principles of human rights, social justice, and equality for all.

Global influence on local policy-making

In 2020, under the Trump administration, the United States led 37 countries to sign the Geneva Consensus Declaration¹ that claimed that there is no international right to abortion, nor any international obligation on the part of states to finance or facilitate abortion services, but rather, states have the sovereign right to implement programmes that are consistent with their policies. The Geneva Consensus was co-sponsored by Brazil, Indonesia, Hungary, Uganda, and Egypt, and signed by others including Kenya.

While under the Biden administration, the US revoked its signature² to the Consensus Declaration, the damage is already done, and its ripple effects are still felt globally. In Kenya, it created policy and service delivery hurdles that obstructed sexual and reproductive health interventions, particularly on abortion. It also emboldened anti-rights groups across the globe.

The emboldened anti-rights actors have also made strides by influencing the creation of dehumanising anti-LGBTIQ+ laws across Africa. A number of these actors operating in the continent are connected to and financed by a US-based fundamentalist Christian lobby group, Family Watch International, that has been convening African politicians and diplomats³ for years to train them on their extremist agenda against comprehensive sexuality education, abortion, and the rights of LGBTIQ+ people. Many of these politicians go on to sponsor or support anti-rights legislation in their countries. For example, in 2023, Family Watch International hosted a convening in Uganda, where the President and the First Lady were present, to whip up anti-homosexuality sentiments⁴ that culminated in the passing of Uganda’s Anti-Homosexuality Act.⁵ One Kenyan parliamentarian who was present at that convening shortly after introduced a replica of the Uganda anti-LGBTIQ bill⁶ in the Kenyan parliament.

The coordinated anti-rights movement across Africa is not only funded by US actors but there are significant money⁷ and misinformation campaigns⁸ coming into Africa from governments and private actors in Spain, Italy, and Russia among others. This has led to the erasure of words like sexual rights, comprehensive sexuality education, and SRHR in national policy documents.⁹

Further, the overturning of Roe v. Wade (Roe) by the US Supreme Court in June 2022 provided a reinforcement to the anti-abortion movement in Africa and is influencing legal arguments and judicial reasoning in the region. For example, during the 2022 recruitment interviews for Kenya’s high court and court of appeal judges, questions arose about the implications of Roe’s overturning for Kenya’s stance on abortion rights. Some questions posed by members of the Judicial Service Commission were biased and revealed a clear anti-abortion stance, despite the Kenyan constitution allowing abortion under specific circumstances. Most of the interviewees understandably chose to align themselves with the decision to overturn Roe or remained vague as to the surest way to appease the interviewers.¹⁰

Additionally, fears have been raised concerning a progressive court decision on abortion in Kenya, issued in March 2022, where the court was persuaded by the logic of Roe which linked reproductive rights to privacy. In this decision, the high court of Malindi quashed a criminal case where a medical provider and an adolescent girl were being prosecuted for allegedly aiding and procuring abortion illegally. The judge concluded that abortion is a right and that the criminal trial violated the rights of the provider and the adolescent including right to life, health and privacy. Further, that the right to privacy was an integral part of women’s rights especially in the promotion and protection of their rights to equality, dignity, autonomy, information, bodily integrity, respect for private life and to the highest attainable standard of health, including sexual and reproductive health. This decision has been appealed, and the overturning of Roe in June 2022 could bolster the arguments against the decision¹¹ at the appeal. If it is overturned, this will have a ripple effect on abortion service provision because it is the only court decision that has challenged the police’s unrestrained prerogative to arrest and detain patients and providers suspected of violating the penal code provisions on abortion.

While the Kenyan courts have made some bold pronouncements on abortion since the 2010 constitution, the legislative front has not progressed much because of politicisation of SRHR. Attempts by government to implement abortion provisions in the constitution have suffered setbacks due to organised opposition.

The politicisation of comprehensive sexual and reproductive health services in Kenya

In 2010, during Kenya’s constitutional review process, abortion was one of the most contentious issues¹² due to opposition from religious groups¹³ with strong financial support from US evangelical groups. However, the constitution – which included expanding the legal grounds for abortion – was supported by a majority of Kenyans and passed at a referendum.¹⁴ The religious groups immediately regrouped¹⁵ to start agitating for amendment of the constitution to limit the legal grounds for abortion, arguing that their proposals were aimed at protecting the family as a fundamental unit for advancement of the society.¹⁶

In 2012, the Ministry of Health (MoH) issued The Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion,¹⁷ which was a pathway to implementing the right to abortion as set out in the constitution. The guidelines were an important tool for guiding medical professionals, policymakers, and the healthcare system in providing safe and accessible abortion care. They provided the standards for acceptable quality of care, interventions for prevention and management of unintended pregnancies and risky pregnancies, and post-abortion care, among other issues.

However, in 2013, a series of events led to the decision of the MoH to withdraw from the Guidelines. For instance, almost a year after the guidelines became operational, the MoH invited health stakeholders to a meeting on maternal health. USAID – the US government agency responsible for foreign aid and development assistance – learnt about this meeting before it happened and asked its grantees in Kenya not to attend the meeting, since US government funds may not be used to advocate for or promote certain reproductive health services and USAID anticipated a focus on comprehensive reproductive health as a right.¹⁸ This action of USAID completely ignored Kenya’s constitutional requirement of public participation, which is not only a national value but also a principle of governance binding all persons and state organs whenever they make or implement public policy decisions. Concerns have also been raised following reports of ample evidence showing that at the time when the Global Gag Rule¹⁹ was in effect, USAID frequently provided unclear, inaccurate, and sometimes contradictory guidance on US policy on funding and abortion to non-governmental organisations (NGOs) in Kenya – or none at all. This led many NGOs to avoid any association with abortion services, even when not in violation of any US or national laws, for fear of jeopardising their US funding.²⁰

The said USAID letter triggered a chain reaction, reenergising and fortifying claims by religious groups that opposed the abortion guidelines. A day after the USAID letter, the MoH withdrew the guidelines, barely a year after they were adopted. The withdrawal of the guidelines was successfully challenged at the High Court of Kenya²¹ with the court affirming the legal grounds for accessing abortion as provided in the constitution and ordering the MoH to reinstate the guidelines.²¹ The MoH is, however, yet to issue any communication to healthcare providers clarifying the status of the guidelines after the court pronouncement or informing them that the guidelines were reinstated by the court. The MoH has instead not acted on any of the court orders.

Unfortunately, anti-rights groups adopted the same tactic in other countries in Africa. In Uganda, in April 2015, the MoH adopted guidelines for Reducing Maternal Morbidity and Mortality from Unsafe Abortion. The guidelines were intended to guide health service delivery, advocacy, and capacity building geared towards addressing the problem of unsafe abortion in Uganda. However, in December 2015, the Uganda MoH stayed the implementation of the guidelines, citing disagreements between stakeholders regarding their content.²² The stayed implementation has been challenged in court but is yet to be fully heard, creating a chilling effect on service provision. Similarly, the Lagos State Government in Nigeria developed its Guidelines on Safe Termination of Pregnancy – a document meant to provide guidance for the provision of legal abortion. Soon after its adoption, religious groups organised against it, questioning why the Lagos government seemed anxious to legalise abortion at a time when the US and other countries were reviewing their positions on the legalisation of abortion, as evidenced by the reversal of the Roe decision. Following the pushback, the Lagos State Governor directed the suspension of the guidelines, noting that the guidelines would not be implemented until there was adequate deliberation, but did not provide a timeline for the same.²³

Beyond reframing discourses and suppressing implementation of existing policies, anti-rights groups are also frustrating the efforts of SRHR actors to be meaningfully engaged in policy-making and accountability processes. Rather than completely closing SRHR actors out of policy deliberations, the Kenyan MoH has reconstructed the civic space in ways that exclude their voice and favour anti-reproductive rights groups. For instance, in April 2022, the MoH convened a Reproductive Health Policy drafting workshop to review the draft National Reproductive Health Policy. This came after several complaints of lack of meaningful participation by SRHR advocates. Although the MoH eventually invited them to the deliberation table, invitations came at the last minute with just a day or two to the meetings and the MoH invited a bigger number of anti-reproductive rights actors to the meeting. Also, the MoH refused outright to share with the SRHR advocates the draft policy to be discussed, denying them adequate opportunity to prepare and provide input. Additionally, the MoH lead took every available opportunity to castigate the SRHR advocates for demanding strict adherence to the constitution. On the other hand, the MoH lead aligned with the anti-SRHR actors, adopting all their arguments even when they were unscientific and in complete disregard of the MoH’s own data, related policy positions and the law, and were instead leaning more towards moral and religious reasoning. The SRHR advocates moved to court to challenge this policy after its adoption.²⁴

Lessons from the field

The foregoing provides insights into some of the actions needed to effectively deal with the backlash in a contextual manner while remaining globally connected. To respond to these challenges, the SRHR sector in Kenya, working with actors across Africa, has adopted a holistic ecosystem approach with partners bringing in diverse strengths and expertise such as evidence generation, provision of healthcare services, legal and policy advocacy, community mobilisation, and transnational and cross-regional advocacy and solidarity. The 2013 study on the Incidence and Complications of Unsafe Abortion in Kenya²⁵ has been successfully used to advance abortion rights in court²¹ by showcasing the magnitude of the problem of unsafe abortion in Kenya. In June 2023, a cross-sectoral abortion strategy dubbed “Nakuru Strategy” was launched in Kenya following months of deliberations. The Strategy is a multisectoral approach targeting legal and policy reforms, health systems strengthening, political and community mobilisation, and movement building.²⁶ At a continental level, we have the Mobilizing Activists around Medical Abortion (MAMA) network which is a feminist movement of grassroot activists working to harness the potential of self-managed abortions.²⁷ These types of collaboration and coordination are critical, as SRHR advocates need to be aware of and proactively investigate anti-rights tactics such as misinformation and disinformation⁸ while refining their own strategies to protect the integrity of their causes, counteract the efforts of anti-rights activists, and work toward lasting change in the face of fierce opposition.

A big question that has not been answered is why in some cases progressive policies and guidelines are able to get adopted only to be pulled down shortly thereafter. Why is it that the anti-rights groups are not able to stop them before adoption? Perhaps it is time for SRHR advocates to consider discreet strategies including quietly implementing contested policies when they come into effect, especially if the issues have not raised the antennas of the anti-rights groups.

While the adoption of progressive policies and court decisions are big milestones worth celebrating, we must keep our eyes on their impact on the lived realities of our beneficiaries. Without full implementation, they remain mere aspirations. We must also continuously deconstruct the narratives used by governments to discredit their own policies and previously accepted standards, through credible research and strategic communications, and hold governments socially, legally, and politically accountable in cases of breach.

The role played by healthcare providers in advocacy for comprehensive SRHR is critical and we must invest in building capacity of more healthcare providers as allies. We must also coordinate efforts across movements to optimise our impact. For example, abortion rights advocates need to work more collaboratively with LGBTQI+ advocates and the broader women’s movement.

Policymaking processes in one country can have far-reaching consequences and can impact similar processes in other countries. We must therefore embrace cross-regional learning and remain flexible and responsive to the ever-shifting playing field.

Although significant progress has been achieved on the policy front, the fight for SRHR is never over, given the globally well-resourced and connected anti-rights movement. Promoting stronger African voices and leadership at the global level – for example, by including African voices on boards of global health initiatives, adequately recognising African contributions to global health research, policy and practice, and allowing Africans to tell their own stories while intentionally addressing racialised media portrayals of Africa – will be critical as we share our experiences of reproductive justice. By centring African voices and experiences in the global discourse on SRHR, we will challenge and transform dominant narratives in ways that are reflective of the complexity and diversity of Africa while providing a more nuanced understanding of the global reproductive justice landscape and how it feeds into the regional landscape.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Provenance

This article was not commissioned and went through external peer review.