How are sexual and reproductive health rights protected in international law?
Authoritative definitions come from the Programme of Action of the International Conference on Population and Development, held in Cairo in 1994:
- Reproductive health: a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes.
- Sexual health: the enhancement of life and personal relations, and not merely counselling and care related to reproduction and sexually transmitted diseases.
The Programme of Action also affirms that a number of interrelated and complementary rights are relevant to sexual and reproductive health, including the rights:
- To a safe and satisfying sex life;
- To choose freely the number, spacing and timing of children, which includes the right to be informed and to have access to family planning; and
- To appropriate health care services to ensure a safe pregnancy and childbirth, and to give the best chance of having a healthy infant.
Although the Programme of Action is not legally binding in international law, it is based upon a range of rights recognized in binding international human rights treaties, declarations and other instruments that Kenya has ratified, including the:
- International Covenant on Economic, Social and Cultural Rights;
- International Covenant on Civil and Political Rights;
- UN Convention on the Elimination of All Forms of Discrimination Against Women;
- UN Convention on Rights of the Child;
- UN Convention on the Elimination of all Forms of Racial Discrimination; and
- African Charter on Human and People’s Rights.
How are the rights to sexual and reproductive health protected in the Constitution of Kenya?
The new Constitution sets out that reproductive health care is a right for all. Specifically, Article 43(1)(a) provides that: “Every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.” There are many other articles that indirectly touch on sexual and reproductive health rights. These include:
- Article 26(4): prohibits abortion unless emergency treatment is needed, or the life or health of the mother is in danger
- Article 27(2 & 3): women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres
- Article 27(4): prohibits direct and indirect discrimination on any ground
- Article 35(1)(a & b): gives every citizen the right to access information
- Article 43(2): a person shall not be denied emergency medical treatment
- Article 43(3): entitles people who are unable to support themselves and their dependants to appropriate social security
- Article 45(2 & 3): affirms that marriage must be freely consented to and that a husband and wife are entitled to equal rights in the marriage
What is the government expected to do to ensure people can enjoy their rights to sexual and reproductive health?
The rights to sexual and reproductive health encompass both freedoms and entitlements. Under Article 21(1) of the Constitution the government must “observe, respect, protect, promote and fulfil” the Bill of Rights. In international law, it is understood that the obligation to respect means governments must not interfere with the enjoyment of rights; protect means governments must prevent rights violations by third parties; and fulfil means governments must take appropriate legislative, administrative, budgetary, judicial and other measures that enable people to enjoy their rights.
The UN Committee on Economic, Social and Cultural Rights has identified the following criteria for evaluating measures taken in the context of the obligation to fulfil: availability, accessibility, acceptability and adequate quality. In other words, sexual and reproductive health care services, goods and facilities must be: available in adequate numbers across the country; accessible geographically, financially (i.e. affordable) and without discrimination; culturally acceptable to, for example, minorities and indigenous peoples, as well as sensitive to gender and life-cycle requirements, and respectful of confidentiality; scientifically and medically appropriate and of good quality.
In international and constitutional law, the government must fulfil the right to health ‘progressively’, depending on resources available. However, under Article 20(5) of the Constitution, if the government claims it does not have resources to fulfil a right under Article 43, it is the government who must show that the resources are not available and, that in allocating resources, it has prioritized the widest possible enjoyment of the right, “having regard to prevailing circumstances, including the vulnerability of particular groups or individuals”.
Why is a rights-based approach to sexual and reproductive health important?
By granting entitlements that give rise to legal obligations on the government, a rights perspective empowers individuals and groups so that they can take more control over decisions concerning their sexual and reproductive health. Importantly, obligations demand accountability. This means that mechanisms must be put in place to hold the government to account for its actions in relation to sexual and reproductive health.
A rights perspective also prohibits non-discrimination and prioritizes the needs of poor and vulnerable people. This principle is reflected in Article 21(3) of the Constitution which imposes a duty on all state organs and all public officers “to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youths, members of minority or marginalized communities and members of particular ethnic, religious or cultural communities”. By imposing obligations on the government to take action, a rights perspective strengthens the ability of poor and vulnerable groups to demand and use services and information. It also puts an emphasis on equitable access to services and women's empowerment.
Finally, a rights perspective emphasizes participation, a fundamental democratic principle. Individuals and groups have the right to active and informed participation in the formulation, implementation and monitoring of policies relevant to sexual and reproductive health rights. This includes the rights to information, to education, to association and to be heard.
What are the issues of concern in Kenya in relation to sexual and reproductive health?
A number of studies by non-government organisations, international donors, research centres, and the government itself have analysed the healthcare system in Kenya and its impact on people’s enjoyment of their sexual and reproductive health rights, identifying issues of concern such as:
- High maternal mortality rates
- High infant mortality rates
- Unavailability of contraceptives
- High rates of STIs and HIV/AIDS
- Lack of information on family planning information and services
- High rates of unintended or unwanted pregnancies
- Unsafe abortions, giving rise to high rates of morbidity
- Lack of access to sexual and reproductive health services
- High costs of delivery services
- Still births related to poor health of mothers
- Low status of women and girls in communities, both socially and economically
- Inequitable access to education
- Harmful cultural practices like early child marriages, forced marriages, FGM/C, widow inheritance etc.
- Social restrictions, including lack of financial security and decision-making in the household
- Women suffering discrimination and other forms of social exclusion on grounds of gender, race, poverty and health status
- General violence against women
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