The Constitution

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By Zoe Flood, Linda Ngari & Tamasin FordBBC Africa Eye , Nairobi & London

Legal ambiguity over abortions in Kenya is pushing thousands of women to turn to backstreet clinics. BBC Africa Eye explores how abortion is shrouded in stigma and misinformation.

Edith is lying on a bed covered in old newspaper in a backstreet clinic in Nairobi.

Her legs are held high by stirrups while A Man in a white medical coat explains he is about to put some medicine inside her uterus. A red bucket of bleach containing medical instruments sits on the floor.

The mum-of-three, whose name has been changed to protect her identity, is four months pregnant and is about to have an abortion.

" I had to terminate because I had to go back to work, and I have another small baby, " she later tells BBC Africa Eye .

Abortion is a complicated issue in Kenya.

The penal code, which has its origins in the colonial era, outlaws abortion, criminalising The Woman , the person who carries out The Abortion and the person who supplies The Material required.

However, the 2010 constitution, combined with a wider body of law, does allow abortion when " The Life or health of the mother is in danger" or when the pregnancy has resulted from rape or incest.

Edith discovered she was HIV-positive a few years ago. Her partner, after refusing to get tested himself, later left her.

A lawyer told The Bbc that having a child while living with HIV meant " her physical wellbeing is probably in danger". This, as well as other factors, meant that Edith may have qualified for a legal abortion.

But she felt the backstreet clinic was her only choice.

Few doctors providing legal abortions are willing to talk about the issue openly.

High-profile arrests over The Years have made The Situation " dangerous for health workers" according to Prof Joachim Osur, a reproductive and sexual health expert at Amref International University in Nairobi. It is about how The Law is understood.

" Depending on how The Judge interprets the legality of the procedure that someone has done, it can go Either Way , " he says.

In 2004, Dr John Nyamu, along with two nurses, was arrested for the murder of two foetuses, A Crime that carried the death penalty.

He was held at the Kamiti Maximum Security Prison in Nairobi for 12 Months before he was found Not Guilty .

The media sensation in Kenya around his case eventually led to the formation of the Reproductive Health and Rights Alliance. It was this group that led The Debate to help draft the 2010 constitution, which for the First Time in the country's history provided a legal, albeit limited, avenue for abortion.

However, Dr Nyamu, who now provides safe and legal abortions, believes that the legal ambiguity over abortion makes it hard for women to access these services, even when they should be allowed and particularly in Public Health facilities.

" Unsafe abortion is rampant in Kenya, " he says, arguing that poor women suffer The Most as safe terminations are not available in public hospitals because of the uncertainty and lack of guidelines. The unsafe abortions they then seek can lead to health problems.

" The ones who come with the post-abortion complications, most of them are Young People …. The Women actually start [the procedure] themselves, or they do it with assistance of an untrained person, " Dr Nyamu adds.

According to the global Human Rights organisation, Center for Reproductive Rights , around seven women and girls die Every Day in Kenya because of unsafe abortions. Thousands more are hospitalised.

At an unregulated clinic on The Outskirts of Nairobi, The Man in charge offers women abortions for 2,500 Kenyan shillings ($16; £13).

" We have girls who are Still Going to school. You get others who are raped.

" You get someone who is not ready, and they want to terminate it. We do help because they come for help. They need that help from us, " he says, speaking on condition of anonymity.

He charges extra for the safe disposal of the foetus. If The Woman cannot afford that he pays someone to throw it in The River .

Anti-abortion campaigners and associated religious organisations in Kenya, many of whom are supported by the anti-abortion lobby in the United States , insist The Law is clear: abortion is illegal.

Charles Kanjama, chairperson of the Kenya Christian Professionals Forum, regularly speaks out against abortion and organises rallies in Nairobi.

" For us, we don't think there is any contradiction. We think [the penal code and The Constitution ] are aligned. I do not support an amendment of our laws to remove The Crime of abortion, " he says.

In 2012, the government published guidelines for health workers on legal abortions. A year later they were withdrawn, and training on safe Abortion Care was suspended.

That remains the case and Mr Kanjama's group wants it to stay that way.

" Our position is that whether abortion is safe or unsafe, first of all, The Child always dies. So, it is always unsafe for The Child . And Number Two , you cannot train people to Do Something that is illegal in the country. "

There are many leading voices in Kenya who disagree.

BBC

MP Esther Passaris not only speaks out in favour of abortion But is pushing for improved sexual health and Family Planning education too.

" Our Constitution allows abortion only when the wellbeing of the mother is in question, and the wellbeing is not just physical and biological, it's emotional and economical.

" I think it's About Time that we understand the emotional burden of not having access to Family Planning , not empowering The Woman so that she knows that she doesn't have to become a baby-producing machine. "

Ms Passaris says that while the 2010 constitution legalised abortion in certain circumstances, she argues that The Fear around it restricts women's access to health services, particularly for those from poorer communities.

" The rich have an opportunity to take their children to five-star hospitals and procure a safe abortion, silently, without anyone knowing or speaking. But The Poor have to struggle, " she says.

In March 2022, Kenya's High Court affirmed abortion as a fundamental right under the terms of constitution and ruled that arbitrary arrests were illegal, But it has done little to allay the fears of Some Women , like Edith.

Back in The Clinic where she is seeking a termination, The Man , who says he trained as a doctor and performs around 150 abortions a month, has finished putting The Medicine inside her to induce an abortion.

" We have, like, four to five hours before The Medicine starts taking action. But later, when hell breaks loose, she's going to experience the same thing people experience when giving birth, " he says.

Edith saved up 4,000 Kenyan shillings for The Abortion . It was not enough But The Clinic agreed to do the procedure on condition she would pay more later.

A week after The Abortion , Edith speaks to The Bbc again, describing what it was like to get an abortion In Secret .

" I was Alone and in so much pain that I was hitting The Walls . I was wondering what was going on, if This Was a birth. I was thinking: 'I don't want to die in this house Alone . '

" You do it in pain, because you did not expect something like that. You love children But considering The Life you live, you have to do that. "

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Source of news: bbc.com