In September 2015, the 2030 Agenda for Sustainable Development and its 17 Sustainable Development Goals (SDGs) were adopted during the United Nations Sustainable Summit, and officially came into force on 1st January 2018. Goal 5 of the SDGs acknowledges that gender inequality persists everywhere and more than 48 percent of women between 15 and 49 years of age who are married or in a civil partnership do not make their own decisions about the use of contraceptives and health services. Indeed, as of 2017, the contraceptive prevalence rate of Kenyan women aged 15-49 who use any method at all stood at 64 percent, while the contraceptive prevalence rate of those aged 15-49 and who use modern methods was 61 percent.
Article 43 (1) of the Constitution of Kenya guarantees to everyone “the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.” While the human rights of women to reproductive health care services are protected under the constitution, sociocultural factors continue to hinder the utilisation of family-planning services. Such sociocultural factors include gender-based violence and discriminatory cultural practices which give men more power to make decisions about reproduction. As a result of these barriers to women’s access to contraceptives, the sexual and reproductive health and rights of women continue to be violated in Kenya. This implies that more and more women are not able to make choices about pregnancy and control over their fertility and protect themselves against sexually-transmitted diseases. Furthermore, this lack of autonomy hinders women’s capacity to fully participate in employment and maximise their potential through access to education.
Under domestic and international laws, Kenya has an obligation to promote, realise, respect and abstain from violating the sexual and reproductive health and rights of women. This includes through enacting gender-responsive laws. For instance, Articles 10(h), 12(1) and 14(2) of Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) binds Kenya to eliminate discrimination against women and gender inequality by taking all appropriate measures to ensure that women have access to health care services, including those related to family-planning. However attempts to promulgate legislation that addresses family-planning methods have been thwarted at the Kenyan parliament. In 2015, the Health Bill 2015 was introduced in parliament amidst much opposition from politicians. The Bill recognised the inalienable right of every woman of reproductive age to access “safe, effective, affordable and acceptable family-planning services” and called upon the national health system to come up with and implement a comprehensive programme aimed at advancing effective family-planning services. However, when the Bill went before the parliament it was systematically attacked, with one male Member of Parliament claiming, without scientific proof, that contraceptives cause ‘mood swings’ in women.
On one hand, although Kenya does not have a piece of legislation that specifically addresses family planning, access to and use of contraception, the country is bound by Article 43 (1) of its Constitution to respect, promote and protect the right of every woman to the “highest attainable” reproductive health care.
On the other hand, by dint of Article 2(6) of the Constitution of Kenya, any treaty or convention ratified by Kenya forms part of Kenyan domestic law. Kenya, being a State party to CEDAW, has a duty to “take all appropriate measures” to ensure that women have access without discrimination to specific information and advice on family-planning and rural women have adequate access to information, counselling and services in family- planning. Alongside CEDAW, Article 14 (1) of the Protocol to the African Charter on Human and Peoples’ Rights (Maputo Protocol) also binds Kenya to respect and promote the rights of women to have family-planning education. The Maputo Protocol also goes a step further by enshrining the absolute right of women to control their fertility and choose any method of contraception. Article 23(1) of the Convention on the Rights of Persons with Disabilities also requires that the country takes effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships. Besides, it requires states to ensure that persons with disabilities have a right to freely and responsibly decide on the number and spacing of their children and to have access to age-appropriate information, reproductive and family-planning education.
UNFPA, ‘World Population Dashboard: Kenya’ <https://www.unfpa.org/data/world-population/KE> accessed 13 March 2018.
The Constitution of Kenya (2010)
Executive Board of the United Nations Development Programme, the United Nations Population Fund and the United Nations Office for Project Services, ‘Final country programme document for Kenya’ (25 April 2014) DP/FPA/CPD/KEN/8, para 3.
Kenya National Commission on Human Rights, ‘Realising Sexual and Reproductive Health Rights in Kenya: A myth or reality?’ A Report of the Public Inquiry into Violations of Sexual and Reproductive Health Rights in Kenya, 2012, 28-29. See also UNFPA, ‘Family Planning in Kenya: Not for Women Only’ 1 July 2009 <https://www.unfpa.org/news/family-planning-kenya-not-women-only> accessed 13 March 2018.
Convention on the Elimination of all forms of Discrimination against Women (1979).
Oliver Mathenge, ‘Governors reject Health Bill’, The Star, 19 August 2015 <https://www.the-star.co.ke/news/2015/08/19/governors-reject-health-bill_c1189377> accessed 13 March 2018.
Health Bill (No. 14 of 2015), s 6(1a).
Ibid s 68(1bi).
NA Deb 10 November 2015, column 19, at 42 <http://www.parliament.go.ke/the-national-assembly/house-business/hansard?limitstart=0> accessed 12 March 2018.
Oluoch Asher, ‘Incorporating Transnational Norms in the Constitution of Kenya: The Place of International Law in the Legal System of Kenya’ (2013) 3(11) IJHSS, 270.
CEDAW arts. 10(h) and 12(1).
Ibid art.14 (2b).
Protocol to the African Charter on Human and Peoples’ Rights (Maputo Protocol) (2003).
Convention on the Rights of Persons with Disabilities (CRPD) (2006).
Photo: “Female Condoms Are A Woman’s Bargaining Power” by “PATH global health” Licensed under Public Domain Attribution 2.0 Generic (CC BY 2.0). Accessed 14 July 2017. http://www.flickr.com/photos/rizkapb/1363929346/.