Reflecting on 13 Years of the Kenyan Constitution: Advancements and Challenges in Sexual Reproductive Health and Rights

Thirteen years ago, on the 28th of August, the Kenyan Constitution of 2010 was promulgated, ushering in a new era of rights, freedoms, and legal provisions for its citizens. Today we celebrate this significant milestone as a country. It is therefore critical that we assess the progress made in various areas, particularly those related to sexual reproductive health and rights and human rights access, uptake and provision in line with the Constitution. We need to highlight achievements and shed light on persistent gaps that demand attention. It is through the critical examination of the evolution of these issues that we can ignite a call to action for citizens, human rights defenders, advocates, the media and policy makers alike, urging them to contribute to meaningful change and ensure accountability where it is lacking.

Since the constitution's promulgation, power was devolved to 47 county governments which in turn devolved the health functions as well. While the national government was assigned health policy, capacity building and national referral services functions, the county governments were mandated to provide person-based and public health services as they fall within their jurisdictions. With these changes came positive outcomes that include the recognition of reproductive rights encompassed within the health function. Article 43 provides every Kenyan with the right to the highest attainable standard of health which includes reproductive health care. As a crucial part of the process, it also provides for the right to access to comprehensive information, and in this case, this also includes information about reproductive health, in Article 35. The constitution also, although only partially, recognizes the right to access to supervised and regulated safe abortion care and services.

Although the recognition of these Rights serves as a positive indicator, the reality does not match the promise of the Constitution. There have been significant disconnects between this promise and the reality of women and girls’ access to SRHR. The highest attainable standards of reproductive health entail a state of complete mental, physical, emotional and social wellbeing regarding the reproductive system, beyond just being without disease. Access to information translates to women, girls and men being entitled to seek and receive information that concerns sexual and reproductive health as a way to give them the option of choice, agency and a promise of full, healthy lives. Yet, knowledge about contraception, menstruation, reproductive rights, safe abortion, constitutional provisions on SRHR and sexual gender-based violence is still lacking among a significant portion of Kenyans. These gaps in knowledge limit women and girls’ ability to claim their sexual and reproductive health and rights from healthcare facilities and the government. It denies the men a chance to understand what role they can play to advance the SRHR of girls and women.

In the event of continued limited access and provision of comprehensive SRHR information, low contraceptive uptake is reported, numbers of reported and unreported unintended teen pregnancies rise, incidences of SGBV such as rape, sexual exploitation go up as well as those of HIV and other sexually transmitted infections. Lives continue being lost as a result of unsafe abortion practices and care, harmful cultural practices such as FGM and pregnancy-related complications caused by delayed access to anti-natal care. As a consequence of all these, the lives of Kenyan citizens, especially women and girls, are tragically impacted.

While the 2010 Constitutional promulgation led to the creation of new laws and health bodies that birthed a new state of governance arrangements for health, there is still need for further institutional changes. Strategic options for systemic review of evidence are needed to assess every health function, including SRHR, with a focus on defined outcomes. The World Health Organization (WHO) defines a health system as a network of interlinked components that must operate cohesively for optimal effectiveness. This network encompasses various entities such as organizations, institutions (including legal entities), resources, and individuals, all of which share the fundamental objective of enhancing health outcomes. In this respect, with the Constitution as the legal and guiding foundation, more focus should be directed towards the implementation of its provisions in regards to SRHR towards contributing optimally to attaining the outcome of responsiveness.

There is an urgency for both citizens and policy makers to be actively engaged in addressing these gaps. Kenyans ought to express more intentionality in being aware of their rights and demand accountability from those responsible for ensuring progress in SRHR and human rights protection. Policy makers need to do their part and evaluate the effectiveness of existing frameworks, allocate adequate resources, and drive legislative changes that align with the constitution's principles. Otherwise, the Constitution will continue to remain a mere piece of paper containing written text that has no value.