FEATURE
The Kenyan national response to internationally agreed sexual and reproductive health and rights goals: a case study of three policies Rose N Oronje Senior Policy & Communications Specialist, African Institute for Development Policy, Nairobi, Kenya. Correspondence: [email protected]
Abstract: While priorities for, and decision-making processes on, sexual and reproductive health and rights have been determined and led mainly at the international level, conflicting power dynamics and responses at the national level in some countries have continued to pose challenges for operationalising international agreements. This paper demonstrates how these conflicts have played out in Kenya through an analysis of three policy-making processes, which led to the Adolescent Reproductive Health and Development Policy (2003), the Sexual Offences Act (2006), and the National Reproductive Health Policy (2007). The paper is based on data from a broader study on the drivers and inhibitors of sexual and reproductive health policy reform in Kenya, using a qualitative, case study design. Information was gathered through 54 semi-structured, in-depth interviews with governmental and civil society policy actors and an extensive review of policy documents and media reports. The paper shows that the transformative human rights framing of access to sexual and reproductive health, supported by both a strong global women’s rights movement and progressive governmental and inter-governmental actors to defeat opposition to sexual and reproductive health and rights at the international level, has not been as influential or successful at the national level in Kenya, and has made comprehensive national reforms difficult to achieve. © 2013 Reproductive Health Matters Keywords: sexual and reproductive health and rights, health policies and programmes, advocacy and political process, adolescent reproductive health, gender-based violence, sexual violence and abuse, beliefs, norms and values, Kenya Sexual and reproductive health (SRH) issues are often neglected, particularly by many developing country governments, because of religious and cultural opposition. This has necessitated international as well as regional efforts to commit governments to addressing these issues. The most significant of these was the 1994 International Conference on Population and Development (ICPD), which reframed them as a human rights issue,1 in order to increase international and national attention to persistent high rates of maternal mortality and morbidity, teenage pregnancy, gender-based and sexual violence, and low rates of contraceptive use, among other issues. At the time, both international and national efforts had been focused on population control and safe motherhood, without much attention to individual needs or health outcomes. The reframing therefore sought to shift the focus to individual needs, rights and health, particularly of women, girls and adolescents, and to
addressing the structural issues that underpinned poor reproductive and sexual health outcomes. Although ICPD put human rights at the centre of responses to SRH issues, it was not the first UN gathering to link human rights to SRH. Indeed, the 1993 UN Conference on Human Rights in Vienna was the first to formally recognise women’s rights as human rights.2 But even before this, a 1979 UN General Assembly had adopted the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which sought to end discrimination and violence against women.3 These commitments were buttressed by the 1995 4th World Conference on Women in Beijing, which emphasised the concept of reproductive health and rights, and expanded on the sexual health and rights of women.4 These successes at the international level were realised in spite of strong opposition from the Vatican, other Christian and Muslim religious groups
Contents online: www.rhm-elsevier.com
Doi: 10.1016/S0968-8080(13)42749-0
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and conservative governments, mainly from Africa, Asia, Latin America and the Caribbean. The successes have been attributed to the growing influence of the global women’s movement in UN processes and its ability to penetrate and influence the UN’s decision-making mechanisms. 5 The opposition argued mainly that these issues were a threat to national cultural and religious values, power and interests,6 which resulted in compromise on contested issues such as the right to safe, legal abortion. In 2000, the Millennium Development Goals (MDGs) included a focus on ending gender inequality and improving maternal health. A revision in 2005 saw the MDGs include a target on reproductive health (RH). Even then, it has been argued that the MDGs adopted a piecemeal technocratic approach to development, effectively marginalizing ICPD’s holistic, human rights approach to development.7 In 2011, however, the human rights approach to SRH was expanded when the UN General Assembly resolved to recognise discrimination on the basis of sexual orientation and gender identity as a violation of human rights.8 Except for South Africa, all sub-Saharan African countries present at the Assembly voted against this resolution. This resolution was especially motivated by increasing hostility towards gay rights in various African countries.9–13 At the regional level, the African Union (AU) adopted the Protocol to the African Charter on Human and People’s Rights on the Rights of the Women in Africa (the Maputo Protocol) in 2003.14 The Protocol seeks to protect and promote women’s rights by putting an end to discrimination, violence and negative gender stereotyping. The Protocol explicitly addresses violence against women and the right of girls and women to access SRH services, including safe abortion. To date, 36 out of the 54 African states have ratified the Protocol. The AU further adopted the Maputo Plan of Action for the Operationalisation of the Continental Policy Framework for Sexual and Reproductive Health and Rights 2007–2010 in 2006. On youth SRH, the AU Heads of State in 2006 endorsed the African Youth Charter, which is the first ever legal framework for youth development on the continent. The Charter highlights, among others, adolescent health including SRH and HIV, youth and culture, and the elimination of harmful cultural practices and discrimination against girls. Although Kenya is party to these international and regional commitments, the country has, like many other sub-Saharan African countries, operationalised some aspects of these commitments 152
and ignored others. This makes it important to understand the differing power dynamics and dominant political views at the national level that produce this variance, given the expectation that countries like Kenya will realise more comprehensive SRH reforms. This paper seeks to contribute to this understanding by deconstructing three SRH policy development processes in Kenya – Adolescent Reproductive Health and Development Policy (2003), the Sexual Offences Act (2006), and the National Reproductive Health Policy (2007) – in order to lay bare the political interests and power dynamics that have determined the resultant policies.
Methodology The data on which this paper is based are part of a bigger study conducted for my PhD research, which investigated the drivers and inhibitors of change in SRH policies and laws in Kenya. This research was approved by the University of Sussex following a successful ethical review and clearance process. The study used a qualitative case-study design and focused on the critical role of context in understanding national policy decisions and the legislative process15 with regard to the contested issues of adolescent reproductive health and sexual offences, and in case of the national RH policy, to get a holistic understanding of the responses. Data collection involved semi-structured, in-depth interviews in Nairobi between March and September 2011 with 54 SRH state and nonstate policy actors in Kenya who were involved in the policy-making processes. Individuals interviewed ranged from Members of Parliament (MPs), government officials from the Division of Reproductive Health, National Council for Population and Development and the Kenya National Commission on Human Rights, researchers,* funding agencies,† programme implementers,** human rights and women’s rights advocates,†† officials of *From the Population Studies and Research Institute, Centre for the Study of Adolescence, and Population Council. †
USAID-Kenya, DFID-East Africa and GTZ/GIZ.
**Including Pathfinder International, JHPIEGO and FHI 360. ††
Including FIDA-Kenya, Urgent Action Fund, WILDAF-Kenya, Coalition on Violence Against Women, Health Rights Forum, Reproductive Health and Rights Alliance, Planned Parenthood Federation of America (Nairobi office), and International Planned Parenthood Federation-Africa Regional Office.
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professional associations,* and representatives of key religious institutions.† The initial list of interviewees was drawn from those acknowledged in policy documents as having contributed to the policy development processes. For the sexual offences legislative process, the initial list of interviewees was drawn from various publications (including media reports) of the legislative process. As I started interviewing, I asked interviewees to suggest others who had contributed to the processes, whom I also invited for interview. The interview schedule included open-ended questions. I also reviewed policy documents, organisations’ publications and reports, and academic literature, including from governmental and NGO agencies, Hansard from the Kenyan Parliament library, legal documents, websites, international and regional conventions and declarations, and mainstream national and international media reports of debates on SRH issues, including parliamentary debates on the Sexual Offences bill in 2006 and coverage of contentious issues such as abortion and homosexuality (dating back to 1999). Data analysis involved the identification of themes and sub-themes and their inter-linkages to create coherent and nuanced accounts of the decision-making processes. Preliminary study findings were discussed with colleagues in the UK and Kenya, and insights from these discussions enriched the analysis and the ultimate findings discussed in this paper. Information obtained from interviews is acknowledged in the text. Although I did not conduct a systematic assessment of the extent to which the policies studied were being implemented, important implementation challenges and new developments are noted.
Findings The making of the Adolescent Reproductive Health and Development Policy 2003 Reform efforts leading to Kenya’s 2003 Adolescent Reproductive Health and Development Policy were initiated in the early 1990s by the Centre for the Study of Adolescence (CSA) (Official, NCPD, March 14, 2011). Their research revealed high levels of teenage pregnancy and unsafe abortion,16 *Kenya Medical Association and Kenya Obstetricians and Gynaecologists Society. †
Supreme Council of Kenya Muslims and the Kenya Episcopal Conference.
leading to advocacy for policy reform. CSA established connections with the UNFPA country office, a strategic move that gave them close access to the National Council for Population and Development (NCPD) and the government Division of Reproductive Health (DRH). NCPD is a semi-autonomous government agency within the Ministry of Planning, which develops and oversees the implementation of population policies. The DRH is a unit within the Ministry of Health that implements the government’s RH programme. CSA formed a tightly-knit informal network with these two institutions (NCPD and UNFPA), comprising medical researchers and professionals, and demographers. A broader formal network, the Kenya Association for the Promotion of Adolescent Health (KAPAH), was later formed by CSA in 1994, which included government departments, and programme and research organisations (Former official, CSA, Interview, August 3, 2011). KAPAH worked alongside the CSA-UNFPA-NCPD network to spearhead advocacy for adolescent SRH education and services. Given the dominance of medical professionals within these networks, the advocacy efforts were underpinned by public health arguments, including a focus on reducing teenage pregnancy and unsafe abortion through education: “I remember I had been a gynaecologist in charge of the famous ward 6 at Kenyatta National Hospital, where a lot of abortion cases were being handled at that time. The data that we were producing there… it was clear that we could not just be downstream managing these cases of abortion and pregnancy without doing anything upstream at the higher level… of prevention through education.” (Medical researcher and adolescent RH reforms champion, Interview, June 10, 2011) However, given a pre-existing unsupportive context for youth SRH service provision, this campaign excluded issues perceived as more sensitive (such as providing adolescents with contraceptives and abortion services). Instead, it focused on the need to provide adolescents with SRH information, which was perceived as less sensitive in order to reduce opposition. “We could not even talk about abortion since the Kenyan law outlaws it and also the Kenyan society is not supportive of the issue. So how could we even talk about an issue that we knew was going to attract opposition?” (Official, NCPD, Interview, March 22, 2011) 153
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Even these limited efforts were strongly opposed by top religious and political leaders, who argued that such reforms would encourage adolescent “involvement in sexual activities”.8 Top religious leaders (Catholic and Muslim) led the opposition through public pronouncements and demonstrations in August 1995, arguing that providing SRH information to adolescents was immoral and would teach children about sex.17 Their views were strengthened by then President Daniel Moi and his Vice President and Planning Minister George Saitoti (under whose docket NCPD fell), who came out strongly in support of the stance of the religious leaders and opposed reforms on religious and cultural grounds.8 Moi argued that sexuality education would teach children “bad manners”,18 and blocked a parliamentary debate on a bill on Family Life Education in 1997 that would have paved the way for the provision of sexuality education in schools. While Moi opposed reforms largely for populist political reasons – to remain in the favour of religious leaders who were perceived as influential in swaying electoral votes – Saitoti was opposed to them largely for personal religious reasons, as a member of the conservative Catholic Opus Dei. Reform actors argued that while the 1994 ICPD legitimated their advocacy efforts, they did not draw on ICPD’s human rights approach mainly because of the unsupportive atmosphere within which adolescent SRH issues were being discussed (Medical researcher and adolescent RH reforms champion, Interview, June 10, 2011; Former official, CSA, Interview, August 3, 2011). So throughout the 1990s, the powerful political opposition, underpinned by moral and cultural interests, persisted, with the result that despite sustained evidence-informed advocacy, no policy reforms were realised. However, towards the end of the 1990s, a number of things changed. In 1998, one of CSA’s co-founders, Dr Khama Rogo, became the chairperson of NCPD’s governing board (1998–2001). Around the same time, another co-founder of CSA (Dr Wangoi Njau) joined UNFPA as the deputy country representative for Kenya (Medical researcher and adolescent RH reforms champion, Interview, June 10, 2011). Thus, two adolescent SRH champions were in influential positions. Then, in 1999, President Moi, faced with devastating effects of the AIDS pandemic on Kenya’s crumbling economy, and under donor pressure to make a commitment to tackling it,17 declared 154
AIDS a national emergency and announced his support for condom provision and other measures to fight the disease. This political shift unsettled the hegemonic moral and cultural interests, dipping power in favour of political space for change (Official, NCPD, March 14, 2011). Under the chairmanship of Dr Rogo, NCPD’s governing board decided in 1999 to develop an adolescent RH policy, and the UNFPA country office committed funds for it. NCPD, together with CSA and KAPAH, developed a draft policy, which was then deliberated and approved by a committee including the Ministry of Health, Ministry of Youth, Ministry of Education, and Ministry of Environment; key NGOs including Family Health Options Kenya, the Christian Health Association of Kenya, Population Studies and Research Institute, Pathfinder International, Population Council, and Family Health International; GTZ, UNFPA, and the Catholic Secretariat (Official, NCPD, Interview, March 14, 2011). The draft policy prioritised five areas for strategic action including adolescent SRH and rights, harmful practices, drug and substance abuse, socio-economic factors, and youth disabilities. On the subject of rights, the policy prioritised the provision of “appropriate” HIV/AIDS education and “appropriate” sexual and reproductive health education in schools and training institutions, as well as the provision of “appropriate” RH information and services at all levels of the health care system. It made no mention, however, of adolescent contraceptive education or provision, or safe abortion even in cases where this was allowed by law (Former official, CSA, Interview, August 3, 2011). But even after the policy was drafted, Saitoti blocked its approval by the Planning Ministry, manifesting the entrenchment of religious interests within government structures (Former official, CSA, Interview, August 3, 2011). It was only after a new government, perceived as more supportive of reforms, came into power in late 2002 that the policy was approved in 2003 (Former official, CSA, Interview, August 3, 2011). The adolescent policy has faced huge implementation challenges for two main reasons. First, its formulation by the NCDP meant that the DRH, although a collaborating partner in the policy development process, did not take full ownership of the SRH aspects. Anecdotal views from stakeholders were that the DRH failed to raise funds for implementing these aspects of the policy. Secondly, the more general focus on adolescents’ well-being and development, for which different
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government agencies were responsible, meant that no one agency assumed overall leadership for policy implementation, and this has made it hard to monitor progress. A recent assessment has confirmed these views and identified a lack of awareness about the policy, lack of coordination among implementers, low stakeholder involvement, low political will and youth involvement, limited leadership, and lack of resources, among other things, as responsible.19 The debate preceding the passage of the 2006 Sexual Offences Act The World Health Organization defines sexual violence as “…any sexual act, attempt to obtain a sexual act, unwanted sexual comments and advances or acts to traffic or otherwise directed against a person’s sexuality using coercion, by any person regardless of their relationship to the victim.”20 Increased media reports of sexual violence in Kenya from the early 1990s prompted human rights and women’s rights groups to initiate advocacy efforts for law reforms since the existing law was ineffective in responding to these issues.21 One incident that stood out was a 1991 rape ordeal in a secondary school, perpetrated by boys, that left 19 girls dead.22 There were also reports of an increase in rape of very young children (as young as five months) and grandmothers (as old as 86 years).23 Existing law was ineffective, according to respondents (Woman MP and human rights activist, Interview, August 4, 2011; Women’s rights activist, WILDAF-Kenya, Interview, July 28, 2011), as it treated sexual offences as offences against morality and not as criminal offences. This was compounded by the fact that the law did not stipulate any minimum sentence for offenders, who often walked away free or with very light sentences. Also, the magistrates at the time were instructed by a 1970s Chief Justice to always treat women’s evidence in sexual violence cases with doubt as: “girls and women do sometimes tell an entirely false story” (p.829).24 Finally, there were gaps in the existing law, which did not address gang rape or the rape of boys, as the law had assumed that boys and men could not be raped. The 1990s advocacy efforts were spearheaded by the Federation of Women Lawyers (FIDA)Kenya and the Kenya Anti-Rape Organisation. They involved production of reports on sexual violence and close lobbying of the Attorney General’s
office.21 However, given the unsupportive political environment of the 1990s, as described above, advocacy efforts did not achieve much except an amendment to the Penal Code pertaining to minors that removed inconsistencies in penalties and protected the minors’ identity.21 The 2002 change of government opened a policy window for reforms in this area too, as it saw the coming into parliament of some progressive MPs, among them a women’s rights lawyer and activist, Njoki Ndung’u, who was later to move the Sexual Offences bill. This political change motivated a children’s and women’s rights network – the Juvenile Justice Network (JJN) – to revive the 1990s agitations for comprehensive reforms in 2003 (Woman MP and human rights activist, Interview, August 4, 2011). Between 2003 and 2004, the JJN drafted a sexual offences bill and unsuccessfully sought to convince the Attorney General to present the draft bill in Parliament for debate as a government bill. Reprieve came in 2004 when MP Njoki Ndung’u proposed to present a similar bill.21 The Attorney General then formed a committee comprising Ndung’u, the JJN, Kenya Law Review Commission and officers from the Attorney General’s office, which developed the draft bill that was debated.21 That bill sought to criminalise a wide range of sexual offences including defilement, rape, rape in marriage, female genital mutilation (FGM), unwelcome sexual advances, and emerging offences such as gang rape, trafficking for sexual exploitation and child pornography, among others.21,25 The bill further provided for the offences of rape to include both males and females as survivors and perpetrators, expanded the definition of rape to include penetration by other objects in addition to the penis, defined the offence of sodomy as the penetration of boys below age 14, and sought to introduce chemical castration of offenders.25 At the time, there were only 18 women MPs versus 204 male MPs in Parliament. While a majority of male MPs supported the criminalisation of rape and defilement, they strongly opposed the criminalisation of rape in marriage, unwelcome sexual advances, FGM, and chemical castration of offenders, issues seen as challenging men’s authority and control over women’s sexuality. Criminalising FGM was opposed as outlawing “our culture”.24 These MPs expressed fear that the law would be used to punish men; they cited the then ongoing cases of sexual violation against 155
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South Africa’s president Jacob Zuma and Uganda’s vice president Kiiza Besigye, as examples.21,25 It was also argued that the proposed law was against African culture and would abolish important aspects of social life, such as courtship (p.803).24 Criminalisation of rape in marriage was opposed as a “Western idea”, with the claim that African women give consent to all sexual activities within marriage once they agree to marriage. One MP argued: “An activity between a man and his wife in his bedroom cannot within reason be constituted to be rape. Many people believe and think this is not an African issue. Marriage creates sexual license to each party… that is the license they get by saying ‘I do’”. (p.22)21 This opposition led to intensified lobbying and campaign within and outside parliament in order to generate support. Within parliament, Njoki Ndung’u worked with fellow women MPs to lobby male MPs opposed to the bill. Outside parliament, JJN members fronted public campaigns, mainly through the media, public demonstrations, and lobbying of MPs. In order to generate support, these advocacy efforts deliberately focused on the rights of children to sexual integrity rather than those of “generic” women. The media contributed to this framing of the issues by giving prominence to the rape of children and grandmothers, and the health dangers that minors faced following rape. “…there is a lot of support for protection of children in terms of sexual integrity, but had the bill been pegged just to women’s sexual and reproductive health and rights, it would have faced even more resistance than it actually faced.” (Women’s rights activist, Urgent Action Africa Fund, Interview, August 5, 2011). “You’ll remember that during the debate of the bill in Parliament, the media all of a sudden were covering a lot of rape incidents, particularly rapes of babies and grandmothers. And these were given prominence as headlines or lead stories. This was not a coincidence. We engaged with editors of major media houses and media owners to encourage them to cover these incidents and give them prominence.” (Women’s rights activist, WILDAF-Kenya, Interview, July 28, 2011) In the end, rape in marriage, unwelcome sexual advances, and FGM were not criminalised in the bill that was passed into law in 2006. As regards 156
implementation of the law, Kilonzo et al25 found that implementation of the law was slow, with persistent separation of processes in the medical and legal sectors. They further noted the low awareness of the law among “implementers in government agencies and departments, the police, the prosecution, the judiciary and the general public”(p.15). 25 An important recent development was the passage of a law in 2011 that criminalised FGM. While this was opposed in 2006 for cultural reasons, it was passed unanimously in 2011. This has been attributed to sustained advocacy by women MPs and rights groups, as well as a change of MPs. The 2007 general election saw the departure of some of the male MPs who opposed the criminalisation of FGM in 2006 and the entry of new male MPs who supported it (Woman MP, Interview, August 9, 2011). Indeed, the bill was introduced for debate in Parliament by a male MP. The making of the National Reproductive Health Policy 2007 In 2002, newly deployed medical professionals in the DRH established the Reproductive HealthInteragency Coordinating Committee (RH-ICC), a network comprising representatives of donor and UN agencies, and international NGOs in research and programmes (UNFPA, WHO, USAID, GTZ, DFID, Population Council, FHI, Pathfinder International) (Former official, DRH, Interview, May 16, 2011). The RH-ICC was formed in order for the DRH to draw on the financial and technical resources of the Committee’s members to support the government’s RH programme since the national budget provided only limited support. The need for a national RH policy emerged in 2004 from the deliberations of the RH-ICC. As had happened with the adolescent RH policy, the RH-ICC focused on the medical aspects of SRH, arguing that the high burden of poor health outcomes (mainly maternal ill-health and mortality) necessitated a national policy that would commit government to addressing SRH challenges. Again, issues opposed by top government, religious and political leaders, or criminalised in Kenyan law, were excluded (i.e. adolescent contraception, abortion, sex work, and homosexuality). Moreover, the dominant organisations within the RH-ICC were largely technical and medical organisations, the majority of which were funded by USAID at a point when the US Mexico City Policy prohibited any of its grantees from
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doing abortion-related work. It is therefore unsurprising that the human rights approach to SRH was marginalised in the RH-ICC’s policy deliberations. The network’s avoidance of the rights approach was also a strategy to depoliticise the process as respondents argued that a rights approach would attract opposition from religious and political leaders: “What we are doing is to avoid using the terms “reproductive health rights” at all, so we are now using the term “maternal health” to avoid church leaders and activists blocking progress because women have rights to access maternal health services.” (Official, DRH, Interview, July 14, 2011) This meant in turn that SRH organisations with a human rights focus (such as the Reproductive Health and Rights Alliance, FIDA-Kenya, Ipas Africa Alliance) were excluded from the network, and therefore from the policy-making process. The DRH delegated the task of drafting the policy to the Policy Project (USAID-funded) and requested funding for policy development from USAID (Former official, Policy Project, Interview, March 25, 2011). Together with two consultants (a gynaecologist and a demographer), a Policy Project official drafted the policy in close consultation with USAID, DRH and RH-ICC. The draft policy covered a wide range of issues, including safe motherhood, maternal health and neonatal health, family planning, adolescent SRH, gender issues, sexual and reproductive rights, HIV and AIDS, reproductive tract infections, infertility, reproductive cancers, and reproductive health of elderly persons. Except for the provision of post-abortion care, the draft said nothing about the provision of safe, legal abortion, even in cases where abortion is legal under Kenyan law. It also said nothing about addressing the SRH needs of sexual minorities (LGBTI) or sex workers as these are not only criminalised under Kenyan law, but are also seen as sensitive issues that would attract opposition (Technical expert, National RH Policy, Interview, March 22, 2011). When the draft policy was discussed with relevant government agencies, NGOs and faith-based organisations implementing SRH programmes, despite the self-censorship of the drafting committee, a few issues were still contested: the provisions on adolescent SRH, post-abortion care, and language on sexual rights: “The rights language in the draft document was contested because certain people were reading this
as ‘abortion’, so the language had to be qualified as only applying within Kenyan law.” (Former official, Policy Project, Interview, March 25, 2011) “Issues to do with abortion were contentious. For example, government doesn’t of course support abortion. Also religious groups do not support this issue. But we had to include post-abortion care because this is an integral part of basic obstetric care so that if a woman comes bleeding with an incomplete abortion, then you do the MVA (manual vacuum aspiration), you don’t chase her away or call the police.” (Official, UNFPA, Interview, June 7, 2011) Although the language on sexual rights was excluded from the policy, the sections on adolescent SRH and post-abortion care were retained in it. This led to behind-the-scenes lobbying by religious groups, who wanted the Health Minister to remove the provisions on post-abortion care; this delayed the approval of the policy, but in the end the Minister signed the policy without any amendments (Technical expert, National RH Policy, Interview, March 22, 2011). Paradoxically, the policy’s top priority is maternal health and even though unsafe abortion accounts for more than 30% of maternal deaths in Kenya,26 the policy makes no mention of the provision of safe abortion in cases where it is legal in Kenya, except for post-abortion care. A strategy for operationalising the policy was developed in 2009, but the failure to cost the implementation plan was identified by stakeholders as likely to hinder implementation. The passing of a new Constitution in 2010, which relaxed some of the restrictions on abortion in Kenya* and established the right to reproductive health care within the law, were noted by respondents as likely to force the revision of this policy so as to make provisions available for safe abortion.
Discussion This study has shown that a primary obstacle to comprehensive SRH reforms in Kenya, and similarly in much of sub-Saharan Africa, is the conflict between deeply held cultural and religious values and norms and the required policy and programme *Allowed clinical officers and midwives, in addition to medical doctors, to make a decision on, and conduct an abortion. It also allowed abortion if permitted by any other law.
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reforms needed to address SRH issues. The Kenyan policy processes unpack important contextual power dynamics at national level that have influenced the country’s efforts to operationalise international and regional agreements. An important variance in values demonstrated in the case studies is that the transformative human rights approach to SRH, which is dominant at the international level, is greatly contested and marginalised at the national level in Kenya. It is not that the rights approach to SRH is not opposed at international level; rather the opposition at international level is often defeated, whereas the opposition at the national level in Kenya is greatly entrenched within government and societal structures and almost always carries the day. This is especially the case given the Kenyan public’s lack of understanding and appreciation of the human rights concept, and its importance in political struggles. Studies conducted in different Kenyan communities on gender-based and sexual violence, for example, have found that many women have internalised their lack of rights,27 or found that women supported practices that violate their rights, such as wife-beating, which they argued was a show of love by husbands.28 The Center for Reproductive Rights and Federation of Women Lawyers-Kenya29 have attributed the rampant violations of human rights and the right to health within the Kenyan health care system partly to the lack of understanding and appreciation of the right to health by both patients and health care providers. Thus, Kenya lacks strong grassroots and a political support base for human rights, including for sexual and reproductive health and rights. The importance of a strong, local human rights movement in bringing about comprehensive reforms on SRH issues is evident in the many rights-based reforms realised in South Africa through the country’s 1996 Constitution, which, as argued by Petchesky,30 were largely a result of a long-standing history of human rights advocacy. Even so, the lack of political support for a rights-based approach to SRH is not unique to Kenya; other studies have shown this to be a problem in other sub-Saharan African countries.31 This reality means that alternative approaches to SRH, such as the medical or public health focus, are more likely to bring about more comprehensive reforms, at least in the short-term. Furthermore, a variation of the human rights approach, such as the one adopted by the women’s rights 158
movement in the sexual offences legislative process – pegging women’s rights onto children’s rights in order to enable reforms for women – presents an example of navigating contextual opposition. It is, of course, also necessary to invest in promoting public understanding of the human rights approach to SRH to generate political support in the longer-term, precisely because the combination of the public health and human rights approaches has greater potential to bring about comprehensive SRH policy and legislative reforms. Another important factor evident in the policy processes is the varying influence of different actors at the international and national levels, especially the women’s movement’s ability to participate in and influence UN decision-making processes.32 In Kenya, in contrast, as demonstrated by these case studies, the human rights and the women’s rights movements are involved in legislative processes but not as much in technocratic decision-making within the health bureaucracy. As seen in the adolescent RH policy and the national RH policy processes, medical and population experts dominate in these processes, making it easy to marginalise the human rights framework. While women’s rights groups in Kenya tend to focus on advocacy from outside the health bureaucracy, the strongly entrenched opposition to some SRH issues calls for more diverse advocacy efforts, including finding ways of engaging in decision-making structures within the health bureaucracy. The omission of various SRH issues within the policies produced in Kenya has serious implications for access to SRH services. For instance, unmarried adolescents’ access to contraception remains a major challenge in Kenya and women experiencing rape in marriage have no means of seeking legal redress or health and psychosocial care and support. 25 Similarly, the failure to implement the provision of safe abortions even in cases where this is allowed under Kenyan law has contributed to confusion surrounding abortion care in Kenya, effectively limiting access to life-saving abortion care and services. Lastly, the policies’ silence on the SRH needs and rights of sexual minorities (LGBTI) and sex workers has failed to address the challenges faced by these groups whenever they seek care. In conclusion, the differing power dynamics at national versus international level point to the need for an increased focus by national
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organisations on understanding the context and history of national sexual and reproductive health and rights reform efforts, in order to inform the design of more effective national advocacy campaigns. Such knowledge should include lessons on strategies that reform actors in different countries have used to overcome entrenched opposition as well. Donor agencies too should consider supporting and strengthening national level
mechanisms and efforts with the potential to challenge the status quo. Note The PhD thesis on which this paper is based is: Oronje RN. Understanding the drivers of change in sexual and reproductive health policy and legislation in Kenya. PhD thesis, University of Sussex, UK, 2013, at: http://sro.sussex.ac.uk/46469/
References 1. UN Population Fund. ICPD Programme of Action 1994. Cairo: UNFPA; 1995. 2. United Nations. Vienna Declaration and Programme of Action: adopted by the World Conference on Human Rights, 25 June 1993. http://www2.ohchr.org/english/ law/pdf/vienna.pdf. 3. United Nations. Convention on Eliminating All Forms of Discrimination against Women. 1979. http://www.un. org/womenwatch/daw/cedaw/cedaw.htm. 4. United Nations. Beijing Platform for Action. Beijing: UN; 1995. 5. Roseman MJ, Reichenbach L. Global reproductive health and rights: reflecting on ICPD. In: Reichenbach L, Roseman MJ, editors. Reproductive Health and Human Rights: The Way Forward. Philadelphia: University of Pennsylvania Press; 2009. p.3–20. 6. Miller AM, Roseman MJ. Sexual and reproductive rights at the United Nations: frustrations or fulfilment? Reproductive Health Matters 2011;19(38):102–18. 7. Ortega AO. Perpetuating power: a response. Reproductive Health Matters 2011;19(38):35–41. 8. UN Human Rights Council. UN General Assembly, 17th Session, Agenda Item 8: Human rights, sexual orientation and gender identity; 2011. http://goo.gl/J0XA2f. 9. BBC News. Malawi gay couple get maximum sentence of 14 years. May 20, 2010. http://www.bbc.co.uk/ news/10130240. 10. BBC News. Malawi gay couple released after presidential pardon. May 29, 2010. http://www.bbc.co. uk/news/10194057. 11. BBC News. Uganda gay rights activist David Kato killed. January 27, 2011. http://www.bbc.co.uk/news/worldafrica-12295718. 12. Daily Nation. Nigerian lawmakers move ahead on anti-gay bill. November 14, 2012. http://goo.gl/g4Y48e. 13. Al Jazeera. Uganda’s “Kill the gays” bill spreads fear. January 3, 2013. http://goo.gl/NASIB4. 14. African Union. Protocol to the African Charter on Human and People’s Rights on the Rights of the Women in Africa. http://goo.gl/TEPnJo.
15. Yin RK. Case Study Research: Design and Methods. Thousand Oaks, CA: Sage Publications; 2003. 16. Centre for the Study of Adolescence. Adolescence in Kenya: The Facts. Nairobi: CSA; 1995. 17. Ogot BA. Politics and the AIDS Epidemic in Kenya 1983–2003. Kisumu: Anyange Press; 2004. 18. Kenyans clash in debate to bring sex education into schools. Trust; 2011. http://www.trust.org/item/ 20111021105200–su3dl/. 19. Population Reference Bureau. Kenya adolescent reproductive health and development policy: Implementation assessment report. Washington, DC: PRB; 2013. 20. World Health Organization. WHO Multi-Country Study on Women’s Health and Domestic Violence against Women: Prevalence, Health Outcomes and Women’s Responses. Geneva: WHO; 2005. 21. Onyango-Ouma W, Ndung’u N, Baraza N, Birungi H. The Making of the Kenya Sexual Offenses Act, 2006: Behind the Scenes. Nairobi: Population Council; 2009. 22. New York Times. Kenyans do some soul-searching after the rape of 71 schoolgirls. July 29, 1991. http:// goo.gl/ddgg8Y. 23. Ndung’u N. Legislation for sexual violence in Africa: Preparing and delivering evidentiary requirements. Presented at the Workshop on Medico-Legal Responses to Sexual Violence, June 2–6, 2008, Nairobi. 24. Hansard. National Assembly Official Report. Nairobi: National Assembly; April 26–27, 2006. 25. Kilonzo N, Ndung’u N, Ntamburi N, et al. Sexual violence legislation in sub-Saharan Africa: the need for strengthened medico-legal linkages. Reproductive Health Matters 2009;17(34):10–19. 26. Ipas. A National Assessment of the Magnitude and Consequences of Unsafe Abortion in Kenya. Nairobi: Ipas Africa Alliance; 2004. 27. Crichton J, Nyamu-Musembi C, Ngugi A. Painful tradeoffs: Intimate-partner violence and sexual and reproductive health rights in Kenya. Institute for
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RN Oronje. Reproductive Health Matters 2013;21(42):151–160 Development Studies Working Paper 312. Brighton: IDS; 2008. 28. Friedman A, Todd J. Kenyan women tell a story: interpersonal power of women in three subcultures in Kenya. Sex Roles 1994;31(9/10). 29. Center for Reproductive Rights; Federation of Women Lawyers-Kenya. Failure to deliver: Violations of women’s human rights in Kenyan health facilities. New York; Nairobi: CRR; FIDA-Kenya; 2007. 30. Petchesky RP. Global Prescriptions: Gendering Health and Human Rights. New York: Zed Books; United Nations Research Institute for Social Development; 2003.
31. Oronje RN, Crichton J, Theobald S, et al. Operationalising sexual and reproductive health and rights: the constraints, the dilemmas and the opportunities. BMC International Health and Human Rights 2011;11 (Suppl 3):S8. http://www.biomedcentral.com/1472-698X/ 11/S3/S8. 32. Girard F. Advocacy for sexuality and women’s rights: continuities, discontinuities, and strategies since ICPD. In: Reichenbach L, Roseman MJ, editors. Reproductive Health and Human Rights: The Way Forward. Philadelphia: University of Pennsylvania Press; 2009. p.167–81.
Résumé Si les priorités et les processus de décision relatifs à la santé et aux droits sexuels et génésiques ont été déterminés et dirigés principalement au niveau international, dans certains pays, des dynamiques de pouvoir et des réponses conflictuelles au niveau national ont continué d’entraver la mise en œuvre des accords internationaux. Cet article montre comment ces conflits ont opéré au Kenya, en analysant trois processus de définition des politiques, qui ont abouti à la Politique de santé et développement génésique des adolescents (2003), la Loi sur les délits sexuels (2006) et la Politique nationale sur la santé génésique (2007). L’article est fondé sur des données provenant d’une étude plus large des facteurs et inhibiteurs de la réforme des politiques de santé sexuelle et génésique au Kenya, en utilisant un modèle qualitatif d’étude de cas. L’information a été recueillie par 54 entretiens approfondis semi-structurés avec des acteurs politiques gouvernementaux et de la société civile, et une analyse détaillée de documents politiques et d’articles des médias. L’article montre que l’optique transformative des droits de l’homme appliquée à l’accès à la santé sexuelle et génésique, qui bénéficie du soutien d’un fort mouvement mondial des droits des femmes et d’acteurs gouvernementaux et intergouvernementaux progressistes pour vaincre l’opposition à la santé et aux droits sexuels et génésiques au niveau international, n’a pas été aussi influente ou probante au niveau national au Kenya et a rendu les réformes nationales globales difficiles à réaliser.
Resumen Aunque las prioridades y los procesos de toma de decisiones referentes a la salud y los derechos sexuales y reproductivos han sido determinados y dirigidos principalmente a nivel internacional, la dinámica de poder en conflicto y las respuestas a nivel nacional en algunos países han continuado representando retos para operacionalizar los acuerdos internacionales. En este artículo se demuestra el desarrollo de estos conflictos en Kenia mediante un análisis de tres procesos de formulación de políticas, que llevaron a la Política sobre la Salud Reproductiva y el Desarrollo de Adolescentes (2003), la Ley de Delitos Sexuales (2006) y la Política Nacional sobre la Salud Reproductiva (2007). El artículo se basa en datos de un estudio más amplio sobre los impulsores e inhibidores de la reforma de la política sobre salud sexual y reproductiva en Kenia, usando un diseño de estudio de caso cualitativo. Se recopiló información por medio de 54 entrevistas a profundidad semiestructuradas con actores del gobierno y de la sociedad civil y una revisión extensa de los documentos de políticas e informes mediáticos. El artículo muestra que el marco transformativo basado en los derechos humanos de acceso a servicios de salud sexual y reproductiva, apoyado tanto por un sólido movimiento mundial a favor de los derechos de las mujeres como por actores progresistas gubernamentales e intergubernamentales para derrotar la oposición a la salud y los derechos sexuales y reproductivos a nivel internacional, no ha sido tan influyente o exitoso a nivel nacional en Kenia, y ha dificultado el logro de reformas nacionales integrales.
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The Kenyan national response to internationally agreed sexual and reproductive health and rights goals: a case study of three policies Rose N Oronje Senior Policy & Communications Specialist, African Institute for Development Policy, Nairobi, Kenya. Correspondence: [email protected]
Abstract: While priorities for, and decision-making processes on, sexual and reproductive health and rights have been determined and led mainly at the international level, conflicting power dynamics and responses at the national level in some countries have continued to pose challenges for operationalising international agreements. This paper demonstrates how these conflicts have played out in Kenya through an analysis of three policy-making processes, which led to the Adolescent Reproductive Health and Development Policy (2003), the Sexual Offences Act (2006), and the National Reproductive Health Policy (2007). The paper is based on data from a broader study on the drivers and inhibitors of sexual and reproductive health policy reform in Kenya, using a qualitative, case study design. Information was gathered through 54 semi-structured, in-depth interviews with governmental and civil society policy actors and an extensive review of policy documents and media reports. The paper shows that the transformative human rights framing of access to sexual and reproductive health, supported by both a strong global women’s rights movement and progressive governmental and inter-governmental actors to defeat opposition to sexual and reproductive health and rights at the international level, has not been as influential or successful at the national level in Kenya, and has made comprehensive national reforms difficult to achieve. © 2013 Reproductive Health Matters Keywords: sexual and reproductive health and rights, health policies and programmes, advocacy and political process, adolescent reproductive health, gender-based violence, sexual violence and abuse, beliefs, norms and values, Kenya Sexual and reproductive health (SRH) issues are often neglected, particularly by many developing country governments, because of religious and cultural opposition. This has necessitated international as well as regional efforts to commit governments to addressing these issues. The most significant of these was the 1994 International Conference on Population and Development (ICPD), which reframed them as a human rights issue,1 in order to increase international and national attention to persistent high rates of maternal mortality and morbidity, teenage pregnancy, gender-based and sexual violence, and low rates of contraceptive use, among other issues. At the time, both international and national efforts had been focused on population control and safe motherhood, without much attention to individual needs or health outcomes. The reframing therefore sought to shift the focus to individual needs, rights and health, particularly of women, girls and adolescents, and to
addressing the structural issues that underpinned poor reproductive and sexual health outcomes. Although ICPD put human rights at the centre of responses to SRH issues, it was not the first UN gathering to link human rights to SRH. Indeed, the 1993 UN Conference on Human Rights in Vienna was the first to formally recognise women’s rights as human rights.2 But even before this, a 1979 UN General Assembly had adopted the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which sought to end discrimination and violence against women.3 These commitments were buttressed by the 1995 4th World Conference on Women in Beijing, which emphasised the concept of reproductive health and rights, and expanded on the sexual health and rights of women.4 These successes at the international level were realised in spite of strong opposition from the Vatican, other Christian and Muslim religious groups
Contents online: www.rhm-elsevier.com
Doi: 10.1016/S0968-8080(13)42749-0
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and conservative governments, mainly from Africa, Asia, Latin America and the Caribbean. The successes have been attributed to the growing influence of the global women’s movement in UN processes and its ability to penetrate and influence the UN’s decision-making mechanisms. 5 The opposition argued mainly that these issues were a threat to national cultural and religious values, power and interests,6 which resulted in compromise on contested issues such as the right to safe, legal abortion. In 2000, the Millennium Development Goals (MDGs) included a focus on ending gender inequality and improving maternal health. A revision in 2005 saw the MDGs include a target on reproductive health (RH). Even then, it has been argued that the MDGs adopted a piecemeal technocratic approach to development, effectively marginalizing ICPD’s holistic, human rights approach to development.7 In 2011, however, the human rights approach to SRH was expanded when the UN General Assembly resolved to recognise discrimination on the basis of sexual orientation and gender identity as a violation of human rights.8 Except for South Africa, all sub-Saharan African countries present at the Assembly voted against this resolution. This resolution was especially motivated by increasing hostility towards gay rights in various African countries.9–13 At the regional level, the African Union (AU) adopted the Protocol to the African Charter on Human and People’s Rights on the Rights of the Women in Africa (the Maputo Protocol) in 2003.14 The Protocol seeks to protect and promote women’s rights by putting an end to discrimination, violence and negative gender stereotyping. The Protocol explicitly addresses violence against women and the right of girls and women to access SRH services, including safe abortion. To date, 36 out of the 54 African states have ratified the Protocol. The AU further adopted the Maputo Plan of Action for the Operationalisation of the Continental Policy Framework for Sexual and Reproductive Health and Rights 2007–2010 in 2006. On youth SRH, the AU Heads of State in 2006 endorsed the African Youth Charter, which is the first ever legal framework for youth development on the continent. The Charter highlights, among others, adolescent health including SRH and HIV, youth and culture, and the elimination of harmful cultural practices and discrimination against girls. Although Kenya is party to these international and regional commitments, the country has, like many other sub-Saharan African countries, operationalised some aspects of these commitments 152
and ignored others. This makes it important to understand the differing power dynamics and dominant political views at the national level that produce this variance, given the expectation that countries like Kenya will realise more comprehensive SRH reforms. This paper seeks to contribute to this understanding by deconstructing three SRH policy development processes in Kenya – Adolescent Reproductive Health and Development Policy (2003), the Sexual Offences Act (2006), and the National Reproductive Health Policy (2007) – in order to lay bare the political interests and power dynamics that have determined the resultant policies.
Methodology The data on which this paper is based are part of a bigger study conducted for my PhD research, which investigated the drivers and inhibitors of change in SRH policies and laws in Kenya. This research was approved by the University of Sussex following a successful ethical review and clearance process. The study used a qualitative case-study design and focused on the critical role of context in understanding national policy decisions and the legislative process15 with regard to the contested issues of adolescent reproductive health and sexual offences, and in case of the national RH policy, to get a holistic understanding of the responses. Data collection involved semi-structured, in-depth interviews in Nairobi between March and September 2011 with 54 SRH state and nonstate policy actors in Kenya who were involved in the policy-making processes. Individuals interviewed ranged from Members of Parliament (MPs), government officials from the Division of Reproductive Health, National Council for Population and Development and the Kenya National Commission on Human Rights, researchers,* funding agencies,† programme implementers,** human rights and women’s rights advocates,†† officials of *From the Population Studies and Research Institute, Centre for the Study of Adolescence, and Population Council. †
USAID-Kenya, DFID-East Africa and GTZ/GIZ.
**Including Pathfinder International, JHPIEGO and FHI 360. ††
Including FIDA-Kenya, Urgent Action Fund, WILDAF-Kenya, Coalition on Violence Against Women, Health Rights Forum, Reproductive Health and Rights Alliance, Planned Parenthood Federation of America (Nairobi office), and International Planned Parenthood Federation-Africa Regional Office.
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professional associations,* and representatives of key religious institutions.† The initial list of interviewees was drawn from those acknowledged in policy documents as having contributed to the policy development processes. For the sexual offences legislative process, the initial list of interviewees was drawn from various publications (including media reports) of the legislative process. As I started interviewing, I asked interviewees to suggest others who had contributed to the processes, whom I also invited for interview. The interview schedule included open-ended questions. I also reviewed policy documents, organisations’ publications and reports, and academic literature, including from governmental and NGO agencies, Hansard from the Kenyan Parliament library, legal documents, websites, international and regional conventions and declarations, and mainstream national and international media reports of debates on SRH issues, including parliamentary debates on the Sexual Offences bill in 2006 and coverage of contentious issues such as abortion and homosexuality (dating back to 1999). Data analysis involved the identification of themes and sub-themes and their inter-linkages to create coherent and nuanced accounts of the decision-making processes. Preliminary study findings were discussed with colleagues in the UK and Kenya, and insights from these discussions enriched the analysis and the ultimate findings discussed in this paper. Information obtained from interviews is acknowledged in the text. Although I did not conduct a systematic assessment of the extent to which the policies studied were being implemented, important implementation challenges and new developments are noted.
Findings The making of the Adolescent Reproductive Health and Development Policy 2003 Reform efforts leading to Kenya’s 2003 Adolescent Reproductive Health and Development Policy were initiated in the early 1990s by the Centre for the Study of Adolescence (CSA) (Official, NCPD, March 14, 2011). Their research revealed high levels of teenage pregnancy and unsafe abortion,16 *Kenya Medical Association and Kenya Obstetricians and Gynaecologists Society. †
Supreme Council of Kenya Muslims and the Kenya Episcopal Conference.
leading to advocacy for policy reform. CSA established connections with the UNFPA country office, a strategic move that gave them close access to the National Council for Population and Development (NCPD) and the government Division of Reproductive Health (DRH). NCPD is a semi-autonomous government agency within the Ministry of Planning, which develops and oversees the implementation of population policies. The DRH is a unit within the Ministry of Health that implements the government’s RH programme. CSA formed a tightly-knit informal network with these two institutions (NCPD and UNFPA), comprising medical researchers and professionals, and demographers. A broader formal network, the Kenya Association for the Promotion of Adolescent Health (KAPAH), was later formed by CSA in 1994, which included government departments, and programme and research organisations (Former official, CSA, Interview, August 3, 2011). KAPAH worked alongside the CSA-UNFPA-NCPD network to spearhead advocacy for adolescent SRH education and services. Given the dominance of medical professionals within these networks, the advocacy efforts were underpinned by public health arguments, including a focus on reducing teenage pregnancy and unsafe abortion through education: “I remember I had been a gynaecologist in charge of the famous ward 6 at Kenyatta National Hospital, where a lot of abortion cases were being handled at that time. The data that we were producing there… it was clear that we could not just be downstream managing these cases of abortion and pregnancy without doing anything upstream at the higher level… of prevention through education.” (Medical researcher and adolescent RH reforms champion, Interview, June 10, 2011) However, given a pre-existing unsupportive context for youth SRH service provision, this campaign excluded issues perceived as more sensitive (such as providing adolescents with contraceptives and abortion services). Instead, it focused on the need to provide adolescents with SRH information, which was perceived as less sensitive in order to reduce opposition. “We could not even talk about abortion since the Kenyan law outlaws it and also the Kenyan society is not supportive of the issue. So how could we even talk about an issue that we knew was going to attract opposition?” (Official, NCPD, Interview, March 22, 2011) 153
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Even these limited efforts were strongly opposed by top religious and political leaders, who argued that such reforms would encourage adolescent “involvement in sexual activities”.8 Top religious leaders (Catholic and Muslim) led the opposition through public pronouncements and demonstrations in August 1995, arguing that providing SRH information to adolescents was immoral and would teach children about sex.17 Their views were strengthened by then President Daniel Moi and his Vice President and Planning Minister George Saitoti (under whose docket NCPD fell), who came out strongly in support of the stance of the religious leaders and opposed reforms on religious and cultural grounds.8 Moi argued that sexuality education would teach children “bad manners”,18 and blocked a parliamentary debate on a bill on Family Life Education in 1997 that would have paved the way for the provision of sexuality education in schools. While Moi opposed reforms largely for populist political reasons – to remain in the favour of religious leaders who were perceived as influential in swaying electoral votes – Saitoti was opposed to them largely for personal religious reasons, as a member of the conservative Catholic Opus Dei. Reform actors argued that while the 1994 ICPD legitimated their advocacy efforts, they did not draw on ICPD’s human rights approach mainly because of the unsupportive atmosphere within which adolescent SRH issues were being discussed (Medical researcher and adolescent RH reforms champion, Interview, June 10, 2011; Former official, CSA, Interview, August 3, 2011). So throughout the 1990s, the powerful political opposition, underpinned by moral and cultural interests, persisted, with the result that despite sustained evidence-informed advocacy, no policy reforms were realised. However, towards the end of the 1990s, a number of things changed. In 1998, one of CSA’s co-founders, Dr Khama Rogo, became the chairperson of NCPD’s governing board (1998–2001). Around the same time, another co-founder of CSA (Dr Wangoi Njau) joined UNFPA as the deputy country representative for Kenya (Medical researcher and adolescent RH reforms champion, Interview, June 10, 2011). Thus, two adolescent SRH champions were in influential positions. Then, in 1999, President Moi, faced with devastating effects of the AIDS pandemic on Kenya’s crumbling economy, and under donor pressure to make a commitment to tackling it,17 declared 154
AIDS a national emergency and announced his support for condom provision and other measures to fight the disease. This political shift unsettled the hegemonic moral and cultural interests, dipping power in favour of political space for change (Official, NCPD, March 14, 2011). Under the chairmanship of Dr Rogo, NCPD’s governing board decided in 1999 to develop an adolescent RH policy, and the UNFPA country office committed funds for it. NCPD, together with CSA and KAPAH, developed a draft policy, which was then deliberated and approved by a committee including the Ministry of Health, Ministry of Youth, Ministry of Education, and Ministry of Environment; key NGOs including Family Health Options Kenya, the Christian Health Association of Kenya, Population Studies and Research Institute, Pathfinder International, Population Council, and Family Health International; GTZ, UNFPA, and the Catholic Secretariat (Official, NCPD, Interview, March 14, 2011). The draft policy prioritised five areas for strategic action including adolescent SRH and rights, harmful practices, drug and substance abuse, socio-economic factors, and youth disabilities. On the subject of rights, the policy prioritised the provision of “appropriate” HIV/AIDS education and “appropriate” sexual and reproductive health education in schools and training institutions, as well as the provision of “appropriate” RH information and services at all levels of the health care system. It made no mention, however, of adolescent contraceptive education or provision, or safe abortion even in cases where this was allowed by law (Former official, CSA, Interview, August 3, 2011). But even after the policy was drafted, Saitoti blocked its approval by the Planning Ministry, manifesting the entrenchment of religious interests within government structures (Former official, CSA, Interview, August 3, 2011). It was only after a new government, perceived as more supportive of reforms, came into power in late 2002 that the policy was approved in 2003 (Former official, CSA, Interview, August 3, 2011). The adolescent policy has faced huge implementation challenges for two main reasons. First, its formulation by the NCDP meant that the DRH, although a collaborating partner in the policy development process, did not take full ownership of the SRH aspects. Anecdotal views from stakeholders were that the DRH failed to raise funds for implementing these aspects of the policy. Secondly, the more general focus on adolescents’ well-being and development, for which different
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government agencies were responsible, meant that no one agency assumed overall leadership for policy implementation, and this has made it hard to monitor progress. A recent assessment has confirmed these views and identified a lack of awareness about the policy, lack of coordination among implementers, low stakeholder involvement, low political will and youth involvement, limited leadership, and lack of resources, among other things, as responsible.19 The debate preceding the passage of the 2006 Sexual Offences Act The World Health Organization defines sexual violence as “…any sexual act, attempt to obtain a sexual act, unwanted sexual comments and advances or acts to traffic or otherwise directed against a person’s sexuality using coercion, by any person regardless of their relationship to the victim.”20 Increased media reports of sexual violence in Kenya from the early 1990s prompted human rights and women’s rights groups to initiate advocacy efforts for law reforms since the existing law was ineffective in responding to these issues.21 One incident that stood out was a 1991 rape ordeal in a secondary school, perpetrated by boys, that left 19 girls dead.22 There were also reports of an increase in rape of very young children (as young as five months) and grandmothers (as old as 86 years).23 Existing law was ineffective, according to respondents (Woman MP and human rights activist, Interview, August 4, 2011; Women’s rights activist, WILDAF-Kenya, Interview, July 28, 2011), as it treated sexual offences as offences against morality and not as criminal offences. This was compounded by the fact that the law did not stipulate any minimum sentence for offenders, who often walked away free or with very light sentences. Also, the magistrates at the time were instructed by a 1970s Chief Justice to always treat women’s evidence in sexual violence cases with doubt as: “girls and women do sometimes tell an entirely false story” (p.829).24 Finally, there were gaps in the existing law, which did not address gang rape or the rape of boys, as the law had assumed that boys and men could not be raped. The 1990s advocacy efforts were spearheaded by the Federation of Women Lawyers (FIDA)Kenya and the Kenya Anti-Rape Organisation. They involved production of reports on sexual violence and close lobbying of the Attorney General’s
office.21 However, given the unsupportive political environment of the 1990s, as described above, advocacy efforts did not achieve much except an amendment to the Penal Code pertaining to minors that removed inconsistencies in penalties and protected the minors’ identity.21 The 2002 change of government opened a policy window for reforms in this area too, as it saw the coming into parliament of some progressive MPs, among them a women’s rights lawyer and activist, Njoki Ndung’u, who was later to move the Sexual Offences bill. This political change motivated a children’s and women’s rights network – the Juvenile Justice Network (JJN) – to revive the 1990s agitations for comprehensive reforms in 2003 (Woman MP and human rights activist, Interview, August 4, 2011). Between 2003 and 2004, the JJN drafted a sexual offences bill and unsuccessfully sought to convince the Attorney General to present the draft bill in Parliament for debate as a government bill. Reprieve came in 2004 when MP Njoki Ndung’u proposed to present a similar bill.21 The Attorney General then formed a committee comprising Ndung’u, the JJN, Kenya Law Review Commission and officers from the Attorney General’s office, which developed the draft bill that was debated.21 That bill sought to criminalise a wide range of sexual offences including defilement, rape, rape in marriage, female genital mutilation (FGM), unwelcome sexual advances, and emerging offences such as gang rape, trafficking for sexual exploitation and child pornography, among others.21,25 The bill further provided for the offences of rape to include both males and females as survivors and perpetrators, expanded the definition of rape to include penetration by other objects in addition to the penis, defined the offence of sodomy as the penetration of boys below age 14, and sought to introduce chemical castration of offenders.25 At the time, there were only 18 women MPs versus 204 male MPs in Parliament. While a majority of male MPs supported the criminalisation of rape and defilement, they strongly opposed the criminalisation of rape in marriage, unwelcome sexual advances, FGM, and chemical castration of offenders, issues seen as challenging men’s authority and control over women’s sexuality. Criminalising FGM was opposed as outlawing “our culture”.24 These MPs expressed fear that the law would be used to punish men; they cited the then ongoing cases of sexual violation against 155
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South Africa’s president Jacob Zuma and Uganda’s vice president Kiiza Besigye, as examples.21,25 It was also argued that the proposed law was against African culture and would abolish important aspects of social life, such as courtship (p.803).24 Criminalisation of rape in marriage was opposed as a “Western idea”, with the claim that African women give consent to all sexual activities within marriage once they agree to marriage. One MP argued: “An activity between a man and his wife in his bedroom cannot within reason be constituted to be rape. Many people believe and think this is not an African issue. Marriage creates sexual license to each party… that is the license they get by saying ‘I do’”. (p.22)21 This opposition led to intensified lobbying and campaign within and outside parliament in order to generate support. Within parliament, Njoki Ndung’u worked with fellow women MPs to lobby male MPs opposed to the bill. Outside parliament, JJN members fronted public campaigns, mainly through the media, public demonstrations, and lobbying of MPs. In order to generate support, these advocacy efforts deliberately focused on the rights of children to sexual integrity rather than those of “generic” women. The media contributed to this framing of the issues by giving prominence to the rape of children and grandmothers, and the health dangers that minors faced following rape. “…there is a lot of support for protection of children in terms of sexual integrity, but had the bill been pegged just to women’s sexual and reproductive health and rights, it would have faced even more resistance than it actually faced.” (Women’s rights activist, Urgent Action Africa Fund, Interview, August 5, 2011). “You’ll remember that during the debate of the bill in Parliament, the media all of a sudden were covering a lot of rape incidents, particularly rapes of babies and grandmothers. And these were given prominence as headlines or lead stories. This was not a coincidence. We engaged with editors of major media houses and media owners to encourage them to cover these incidents and give them prominence.” (Women’s rights activist, WILDAF-Kenya, Interview, July 28, 2011) In the end, rape in marriage, unwelcome sexual advances, and FGM were not criminalised in the bill that was passed into law in 2006. As regards 156
implementation of the law, Kilonzo et al25 found that implementation of the law was slow, with persistent separation of processes in the medical and legal sectors. They further noted the low awareness of the law among “implementers in government agencies and departments, the police, the prosecution, the judiciary and the general public”(p.15). 25 An important recent development was the passage of a law in 2011 that criminalised FGM. While this was opposed in 2006 for cultural reasons, it was passed unanimously in 2011. This has been attributed to sustained advocacy by women MPs and rights groups, as well as a change of MPs. The 2007 general election saw the departure of some of the male MPs who opposed the criminalisation of FGM in 2006 and the entry of new male MPs who supported it (Woman MP, Interview, August 9, 2011). Indeed, the bill was introduced for debate in Parliament by a male MP. The making of the National Reproductive Health Policy 2007 In 2002, newly deployed medical professionals in the DRH established the Reproductive HealthInteragency Coordinating Committee (RH-ICC), a network comprising representatives of donor and UN agencies, and international NGOs in research and programmes (UNFPA, WHO, USAID, GTZ, DFID, Population Council, FHI, Pathfinder International) (Former official, DRH, Interview, May 16, 2011). The RH-ICC was formed in order for the DRH to draw on the financial and technical resources of the Committee’s members to support the government’s RH programme since the national budget provided only limited support. The need for a national RH policy emerged in 2004 from the deliberations of the RH-ICC. As had happened with the adolescent RH policy, the RH-ICC focused on the medical aspects of SRH, arguing that the high burden of poor health outcomes (mainly maternal ill-health and mortality) necessitated a national policy that would commit government to addressing SRH challenges. Again, issues opposed by top government, religious and political leaders, or criminalised in Kenyan law, were excluded (i.e. adolescent contraception, abortion, sex work, and homosexuality). Moreover, the dominant organisations within the RH-ICC were largely technical and medical organisations, the majority of which were funded by USAID at a point when the US Mexico City Policy prohibited any of its grantees from
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doing abortion-related work. It is therefore unsurprising that the human rights approach to SRH was marginalised in the RH-ICC’s policy deliberations. The network’s avoidance of the rights approach was also a strategy to depoliticise the process as respondents argued that a rights approach would attract opposition from religious and political leaders: “What we are doing is to avoid using the terms “reproductive health rights” at all, so we are now using the term “maternal health” to avoid church leaders and activists blocking progress because women have rights to access maternal health services.” (Official, DRH, Interview, July 14, 2011) This meant in turn that SRH organisations with a human rights focus (such as the Reproductive Health and Rights Alliance, FIDA-Kenya, Ipas Africa Alliance) were excluded from the network, and therefore from the policy-making process. The DRH delegated the task of drafting the policy to the Policy Project (USAID-funded) and requested funding for policy development from USAID (Former official, Policy Project, Interview, March 25, 2011). Together with two consultants (a gynaecologist and a demographer), a Policy Project official drafted the policy in close consultation with USAID, DRH and RH-ICC. The draft policy covered a wide range of issues, including safe motherhood, maternal health and neonatal health, family planning, adolescent SRH, gender issues, sexual and reproductive rights, HIV and AIDS, reproductive tract infections, infertility, reproductive cancers, and reproductive health of elderly persons. Except for the provision of post-abortion care, the draft said nothing about the provision of safe, legal abortion, even in cases where abortion is legal under Kenyan law. It also said nothing about addressing the SRH needs of sexual minorities (LGBTI) or sex workers as these are not only criminalised under Kenyan law, but are also seen as sensitive issues that would attract opposition (Technical expert, National RH Policy, Interview, March 22, 2011). When the draft policy was discussed with relevant government agencies, NGOs and faith-based organisations implementing SRH programmes, despite the self-censorship of the drafting committee, a few issues were still contested: the provisions on adolescent SRH, post-abortion care, and language on sexual rights: “The rights language in the draft document was contested because certain people were reading this
as ‘abortion’, so the language had to be qualified as only applying within Kenyan law.” (Former official, Policy Project, Interview, March 25, 2011) “Issues to do with abortion were contentious. For example, government doesn’t of course support abortion. Also religious groups do not support this issue. But we had to include post-abortion care because this is an integral part of basic obstetric care so that if a woman comes bleeding with an incomplete abortion, then you do the MVA (manual vacuum aspiration), you don’t chase her away or call the police.” (Official, UNFPA, Interview, June 7, 2011) Although the language on sexual rights was excluded from the policy, the sections on adolescent SRH and post-abortion care were retained in it. This led to behind-the-scenes lobbying by religious groups, who wanted the Health Minister to remove the provisions on post-abortion care; this delayed the approval of the policy, but in the end the Minister signed the policy without any amendments (Technical expert, National RH Policy, Interview, March 22, 2011). Paradoxically, the policy’s top priority is maternal health and even though unsafe abortion accounts for more than 30% of maternal deaths in Kenya,26 the policy makes no mention of the provision of safe abortion in cases where it is legal in Kenya, except for post-abortion care. A strategy for operationalising the policy was developed in 2009, but the failure to cost the implementation plan was identified by stakeholders as likely to hinder implementation. The passing of a new Constitution in 2010, which relaxed some of the restrictions on abortion in Kenya* and established the right to reproductive health care within the law, were noted by respondents as likely to force the revision of this policy so as to make provisions available for safe abortion.
Discussion This study has shown that a primary obstacle to comprehensive SRH reforms in Kenya, and similarly in much of sub-Saharan Africa, is the conflict between deeply held cultural and religious values and norms and the required policy and programme *Allowed clinical officers and midwives, in addition to medical doctors, to make a decision on, and conduct an abortion. It also allowed abortion if permitted by any other law.
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reforms needed to address SRH issues. The Kenyan policy processes unpack important contextual power dynamics at national level that have influenced the country’s efforts to operationalise international and regional agreements. An important variance in values demonstrated in the case studies is that the transformative human rights approach to SRH, which is dominant at the international level, is greatly contested and marginalised at the national level in Kenya. It is not that the rights approach to SRH is not opposed at international level; rather the opposition at international level is often defeated, whereas the opposition at the national level in Kenya is greatly entrenched within government and societal structures and almost always carries the day. This is especially the case given the Kenyan public’s lack of understanding and appreciation of the human rights concept, and its importance in political struggles. Studies conducted in different Kenyan communities on gender-based and sexual violence, for example, have found that many women have internalised their lack of rights,27 or found that women supported practices that violate their rights, such as wife-beating, which they argued was a show of love by husbands.28 The Center for Reproductive Rights and Federation of Women Lawyers-Kenya29 have attributed the rampant violations of human rights and the right to health within the Kenyan health care system partly to the lack of understanding and appreciation of the right to health by both patients and health care providers. Thus, Kenya lacks strong grassroots and a political support base for human rights, including for sexual and reproductive health and rights. The importance of a strong, local human rights movement in bringing about comprehensive reforms on SRH issues is evident in the many rights-based reforms realised in South Africa through the country’s 1996 Constitution, which, as argued by Petchesky,30 were largely a result of a long-standing history of human rights advocacy. Even so, the lack of political support for a rights-based approach to SRH is not unique to Kenya; other studies have shown this to be a problem in other sub-Saharan African countries.31 This reality means that alternative approaches to SRH, such as the medical or public health focus, are more likely to bring about more comprehensive reforms, at least in the short-term. Furthermore, a variation of the human rights approach, such as the one adopted by the women’s rights 158
movement in the sexual offences legislative process – pegging women’s rights onto children’s rights in order to enable reforms for women – presents an example of navigating contextual opposition. It is, of course, also necessary to invest in promoting public understanding of the human rights approach to SRH to generate political support in the longer-term, precisely because the combination of the public health and human rights approaches has greater potential to bring about comprehensive SRH policy and legislative reforms. Another important factor evident in the policy processes is the varying influence of different actors at the international and national levels, especially the women’s movement’s ability to participate in and influence UN decision-making processes.32 In Kenya, in contrast, as demonstrated by these case studies, the human rights and the women’s rights movements are involved in legislative processes but not as much in technocratic decision-making within the health bureaucracy. As seen in the adolescent RH policy and the national RH policy processes, medical and population experts dominate in these processes, making it easy to marginalise the human rights framework. While women’s rights groups in Kenya tend to focus on advocacy from outside the health bureaucracy, the strongly entrenched opposition to some SRH issues calls for more diverse advocacy efforts, including finding ways of engaging in decision-making structures within the health bureaucracy. The omission of various SRH issues within the policies produced in Kenya has serious implications for access to SRH services. For instance, unmarried adolescents’ access to contraception remains a major challenge in Kenya and women experiencing rape in marriage have no means of seeking legal redress or health and psychosocial care and support. 25 Similarly, the failure to implement the provision of safe abortions even in cases where this is allowed under Kenyan law has contributed to confusion surrounding abortion care in Kenya, effectively limiting access to life-saving abortion care and services. Lastly, the policies’ silence on the SRH needs and rights of sexual minorities (LGBTI) and sex workers has failed to address the challenges faced by these groups whenever they seek care. In conclusion, the differing power dynamics at national versus international level point to the need for an increased focus by national
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organisations on understanding the context and history of national sexual and reproductive health and rights reform efforts, in order to inform the design of more effective national advocacy campaigns. Such knowledge should include lessons on strategies that reform actors in different countries have used to overcome entrenched opposition as well. Donor agencies too should consider supporting and strengthening national level
mechanisms and efforts with the potential to challenge the status quo. Note The PhD thesis on which this paper is based is: Oronje RN. Understanding the drivers of change in sexual and reproductive health policy and legislation in Kenya. PhD thesis, University of Sussex, UK, 2013, at: http://sro.sussex.ac.uk/46469/
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Résumé Si les priorités et les processus de décision relatifs à la santé et aux droits sexuels et génésiques ont été déterminés et dirigés principalement au niveau international, dans certains pays, des dynamiques de pouvoir et des réponses conflictuelles au niveau national ont continué d’entraver la mise en œuvre des accords internationaux. Cet article montre comment ces conflits ont opéré au Kenya, en analysant trois processus de définition des politiques, qui ont abouti à la Politique de santé et développement génésique des adolescents (2003), la Loi sur les délits sexuels (2006) et la Politique nationale sur la santé génésique (2007). L’article est fondé sur des données provenant d’une étude plus large des facteurs et inhibiteurs de la réforme des politiques de santé sexuelle et génésique au Kenya, en utilisant un modèle qualitatif d’étude de cas. L’information a été recueillie par 54 entretiens approfondis semi-structurés avec des acteurs politiques gouvernementaux et de la société civile, et une analyse détaillée de documents politiques et d’articles des médias. L’article montre que l’optique transformative des droits de l’homme appliquée à l’accès à la santé sexuelle et génésique, qui bénéficie du soutien d’un fort mouvement mondial des droits des femmes et d’acteurs gouvernementaux et intergouvernementaux progressistes pour vaincre l’opposition à la santé et aux droits sexuels et génésiques au niveau international, n’a pas été aussi influente ou probante au niveau national au Kenya et a rendu les réformes nationales globales difficiles à réaliser.
Resumen Aunque las prioridades y los procesos de toma de decisiones referentes a la salud y los derechos sexuales y reproductivos han sido determinados y dirigidos principalmente a nivel internacional, la dinámica de poder en conflicto y las respuestas a nivel nacional en algunos países han continuado representando retos para operacionalizar los acuerdos internacionales. En este artículo se demuestra el desarrollo de estos conflictos en Kenia mediante un análisis de tres procesos de formulación de políticas, que llevaron a la Política sobre la Salud Reproductiva y el Desarrollo de Adolescentes (2003), la Ley de Delitos Sexuales (2006) y la Política Nacional sobre la Salud Reproductiva (2007). El artículo se basa en datos de un estudio más amplio sobre los impulsores e inhibidores de la reforma de la política sobre salud sexual y reproductiva en Kenia, usando un diseño de estudio de caso cualitativo. Se recopiló información por medio de 54 entrevistas a profundidad semiestructuradas con actores del gobierno y de la sociedad civil y una revisión extensa de los documentos de políticas e informes mediáticos. El artículo muestra que el marco transformativo basado en los derechos humanos de acceso a servicios de salud sexual y reproductiva, apoyado tanto por un sólido movimiento mundial a favor de los derechos de las mujeres como por actores progresistas gubernamentales e intergubernamentales para derrotar la oposición a la salud y los derechos sexuales y reproductivos a nivel internacional, no ha sido tan influyente o exitoso a nivel nacional en Kenia, y ha dificultado el logro de reformas nacionales integrales.
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