Health providers must be protected by the law adequately

On October 19, the Court of Appeal put an end to Jackson Namunya Tali’s nearly nine years in prison. In the momentous decision, the three-judge bench ruled that mere suspicion, however strong, is not probative of an offence in the criminal justice system.  

Tali, a trained nurse who operated a clinic in the outskirts of Nairobi, was arrested in 2009 and accused of assisting a woman procure an unsafe abortion that consequently led to her death. Rather than being charged with the offence of unlawful abortion, he was charged with murder, convicted and imprisoned at the Kamiti Maximum Security Prison.  

Tali’s story is just one of the many examples of the harassment, intimidation, physical violence and wrongful prosecution faced by sexual and reproductive health professionals, particularly those perceived to be involved in the provision of abortion services.  

Abortion stigma makes it difficult for health professionals to perform their duties for fear of prosecution. In this case, a health professional trying to provide reproductive health services became victim of what the court described as “not only a poorly investigated but also slovenly prosecuted case”. For reasons that can only be explained by an environment of pervasive abortion stigma, the investigating officer and eventually the trial court found themselves captured by a legally unsubstantiated theory of attempted abortion.

This resulted in Tali’s conviction of murder and sentencing to death, and unjustifiably spending eight years in prison. A travesty and a denial of justice. The case has had a chilling effect on health professionals otherwise desirous of providing reproductive health services.

A health professional who finds themselves with a woman suffering from pregnancy complications and seeking reproductive health services will think twice about intervening, lest they meet the same fate.

In cases where abortion services are indeed required, stigma makes it difficult for women and girls to seek vital information on how and when they can access legal and safe abortion services.

Often, women in need of safe and legal abortion services are morally questioned, shamed and discriminated against. Societal, religious and customary beliefs that sexuality information on abortion is immoral and the judgmental attitudes towards abortion have affected access to reproductive health services. Providers have also been stigmatised, profiled and threatened. 

The Ministry of Health’s continued failure to ensure that the public, healthcare providers and law enforcement officers have clarity on abortion related services has only exacerbated the situation. It has created more confusion as health professionals are unable to determine when they can offer abortion related services in line with the Constitution. 

The 2010 Constitution provides for the right to the highest attainable standard of health, which includes the right to healthcare services, including reproductive healthcare. 

A 2012 study by African Population and Health Research Centre and Guttmacher Institute, showed that nearly 120,000 women in Kenya received care for complications resulting from unsafe abortions. Additionally, more than three-quarters of women treated for post-abortion care had moderate or severe complications, including high fever, sepsis, shock, or organ failure. This brings to the fore the magnitude of the problem of unsafe abortion. 

Health professionals must be supported and allowed to lawfully provide sexual reproductive health services such as legal abortion to those who need it. State organs, including the Health ministry and law enforcement agencies must create an enabling environment for health professionals.   

The ministry must also ensure health professionals have clear enabling policies and guidelines that will give them directions on when to offer reproductive healthcare services. We must also address the stigma associated with abortion and support women and girls who need these critical medical services. More importantly, the ministry must sensitise communities on the negative impacts of abortion related stigma.  

Jackson Tali’s case shows how imperative it is to have laws and policies that enable health providers to do their job. Health providers should never be placed in a position where they fear providing critical reproductive services. After all their primary objective is to save lives.  

- The writer is the Senior Regional Director for Africa at the Centre for Reproductive Rights.  [email protected]