SECTION 16 OF THE CHILDREN ACT, 2022 ON REPRODUCTIVE HEALTH: A REFLECTION OF THE JMM CASE (2015)- WRITTEN BY MWAVISHI LETITIA SHITAGWA

The Children Act, 2022 can be detangled as an active visualization on the progressiveness of advocating for realization and promotion of human rights with a pinch of expression towards the compliance Kenya has obligated itself to pronounce its commitment on several regional and international instruments. The repealed Children Act (2001) barely even realized the issue of Reproductive health issue aligning with the rights of the child. It is commendable what the new Act has brought forth for the attention of the key players to focus on enhancing full enjoyment of this right.

Section 16 (1) of the Children Act (2022) reads as follows;

‘Every child shall have the right to the highest attainable standard of healthcare services in accordance with Article 43 of the Constitution:

Provided that the provisions of reproductive health services to children shall be subjected to the express consent of the parent or guardian.

Section 16 (4) (a) of the Act on reproductive health vis a vis information related to health services further states as follows:

‘Every child has the right to-

(a) Access to age-appropriate information on health promotion and the prevention and treatment of ill-health and disease, mental health and reproductive health;

The genesis of the right to reproductive health care is traced under Article 43 (1) of the Constitution of Kenya, 2010 which guarantees every citizen the right to access the highest attainable standard of health including the right to reproductive health care.

According to the existing National Reproductive Health care policy (2022) it defines Reproductive Health to mean;

‘Reproductive health refers to the condition of male and female reproductive systems during all life stages. WHO further qualifies reproductive health to include a state of complete physical, mental and social wellbeing, and not merely the absence of disease or infirmity, in all matters relating to the reproductive system, its functions, and processes’

Whereas Reproductive Rights is defined to mean;

‘The basic right of all couples and individuals to decide competently, freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of reproductive health. Includes the right to make decisions concerning reproduction free of discrimination, coercion and violence

To what extent do all the above have with a direct focus centered on what should the scope of Reproductive Health Rights with regards to Children look like?

Article 53(2) of the Constitution dictates that in all decisions and considerations when it comes to matters children, the best interest principle shall be the paramount consideration. This thus means in all policy, legislative, administrative measures taken to be directly affecting the full enjoyment of children rights the BEST INTEREST PRINCIPLE shall be of importance and must be seen in those set up measures.

In the year 2018, JMM (not her real name) became part of the country’s reported statistics of consequences relating to unsafe abortion. JMM at the time she procured the services of terminating an unwanted pregnancy was only aged 14 years. It was testified that JMM was sexually violated by an older man which at the time she did not understand the consequences of that unlawful conduct up until she missed her monthly menses which is when she realized she is with child.

JMM being a minor at the time and being raised up in an African set up in the usual threats, myths and misunderstanding of engaging on premarital sex unwillingly resulted to withhold the information from her parents for fear of the unwarranted consequences of either being punished severely or being banished from her family at such a young age.

JMM through a friend resorted to procure services which were cheaply affordable and readily available to solve her existing predicament. The services as described on the Petition were undertaken by an unqualified person referred to as ‘doctor’ in an unsanitary environment, the lack of information on the procedure taken, failure to assess/diagnose the minor to decide which action to take best were among the reasons which accounted to the loss of life of JMM.

JMM without prior information of the procedure and the necessary steps taken to ensure her that the procedure is successful were not accorded to her. JMM begun developing complications which lead to several health issues that were as a result to the unqualified medical procedure accorded to her by the claimed untrained health professional.

This case delivered so many issues that related to the huge challenge the country faces in implementing the right to reproductive healthcare.

Reproductive health implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so[1].”

According to the National Policy on Reproductive Health (2022) it provides that ‘Children and adolescents (boys and girls) who suffer sexual abuse are more likely to be exposed to physical injury (including death) unintended pregnancy, post-abortion complications, sexually transmitted infections including HIV, and mental health complications. Child and Sexual abuse; Raising awareness and empathy is essential to promote a new public health response

The above data and descriptions is unfortunate and that children being categorized as vulnerable in the society there is need to set up age appropriate reproductive health care services that are well presented to them to enable them be aware of the right and its contents and guide them to make informed choices/decisions about their reproductive health.

The issue of subjecting this right to the express consent of the parents is unreasonable and not within the tenets of limiting an enjoyment of the right. A classic example is the JMM case where the deceased at the time she was seeking services of procuring an abortion her thoughts were that if she was to seek help from the parents, they would not react in the most positive way. Data will show that most of the procured complicated abortion services the biggest number of participants are minors within the definition of adolescents group.

A report which was prepared by the Standard Group titled Sad reality of sexually active teens hooked on contraceptives[2] provided statistics that according to the Ministry of Health data it indicated that a total of 10,835 teenagers aged between 10-14-years in the financial year of 2021/2022 were recorded to have been using modern family planning methods to prevent them from getting pregnant.

Further the report indicates that data obtained from the Kenya District Health information system (KDHIS) reveals the number of young girls who were using contraceptives aged between age of 15-19 years were 443, 471.

The above data is of concerned as one may ask the young adults and the children who are involved in partaking the contraceptives are they getting the highest attainable standard of health care in procuring these medicines, are they equipped the information of what is the end purpose of such family planning methods, are they informed of the consequences and if the consequences occur are they provided with the information of what services they will receive to address the issue?

This is what reproductive health care and reproductive rights entails specifically to minors;

1.???There is need to be aware that one is entitled to enjoy the Reproductive Health Right

2.???The State has an obligation to put up infrastructure and facilities to ensure that the implementation of this right is well realized and promoted.

3.???Key personnel must be trained to provided information appropriately to the general cadre of persons but specialized to address the specific needs of women, men, children (adolescents, vulnerable, young adult), persons with disabilities, intersex persons, older persons etc.

4.???Sensitization and continuous awareness on the objective of this particular right and how best to implement its enjoyment is very key and subjective.

5.???The issue of parental consent should not be in the mandatory terms but be provided with an aim to support and not limit the enjoyment of the right.

6.???Provide services that are of quality and of standard to meet the objective of Article 43(1) of the CoK.

On #26September every year, the international world marks the World Contraception Day with the goal to enlighten the public on the importance of contraceptives and sensitize the public on the various methods of available contraceptives with the emphasis that one should consult a medical professional on the various methods so as to be fully equipped with information and making an informed choice.

In conclusion, we applaud the incoming legislation of the Children Act (2022) which aligns with the letter and the spirit of the Constitution which is to promote the dignity of each and every human being to enjoy their right of Reproductive Healthcare. FIDA KENYA Centre for Human Rights, University of Pretoria Equality Now FEMNET - African Women's Development and Communication Network

[1] Petition 266 of 2015; https://kenyalaw.org/caselaw/cases/view/175490/

[2] https://www.standardmedia.co.ke/health/health-science/article/2001456703/sad-reality-of-sexually-active-teens-hooked-on-contraceptives