The proceedings of High Court Petition 27 of 2022 challenging the constitutionality of the National Reproductive Health Policy 2022-2032 continued yesterday at the High Court in Nairobi before Justice Chacha Mwita when parties made their substantive arguments. The petitioners, represented by Rachael Mwikali, argue that the policy was created without proper public participation and violates several Constitutional rights, particularly on reproductive health.
Who Are the Petitioners?
The Petitioners present in Court represented by Rachel Mwikali and the Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN), are challenging the Policy’s legality and impact on the reproductive health rights of Kenyans. The case also involves the Kenya Obstetrics Gynecologist Society and Katiba Institute as interested parties.
Why Are They Challenging the Policy?
The petitioners argue that the policy was developed without meaningful public participation. According to them, the Ministry of Health failed to involve the public and key stakeholders adequately. Advocate Nyokabi Njogu, representing the Kenya Legal and Ethical Issues Network (KELIN), pointed out that the policy excludes certain groups, such as young women and girls under 18, from accessing critical reproductive health services like cervical cancer screening.
The petition also highlights that the policy restricts contraceptive and family planning services to married couples, which KELIN argues is discriminatory and violates the constitutional right to reproductive health under Article 43(1) of the Constitution of Kenya,2010.
KELIN also argued that the policy interferes with academic freedom and research by giving the Director of General Health control over all reproductive health research. This contradicts the Science, Technology, and Innovation Act (STI Act) of 2013. According to KELIN, this undermines the role of the National Commission for Science, Technology, and Innovation (NACOSTI).
Katiba Institute’s Counsel, Emily Kinama, submitted that the Ministry’s stakeholder engagement was inadequate, describing it as a “cosmetic” process in which suggestions were ignored, and stakeholders were denied access to key documents before consultations.
What Do the Petitioners Want?
The petitioners are asking the court to declare the National Reproductive Health Policy unconstitutional and in violation of the rights to reproductive health, equality, non-discrimination, and access to healthcare.
When Is the Next Hearing?
The next hearing is scheduled for October 17, 2024, when the respondents, including the Cabinet Secretary for Health and Attorney General, can make submissions.
