By Evans Kibe
Milimani High Court Judge, Justice Chacha Mwita, was on Wednesday urged to consider appeals from civil society organizations advocating for sexual and reproductive health rights.
The petitioners, drawn from Nairobi and other counties, argue that the 2022 Sexual Reproductive Health Policy was adopted through an unconstitutional process and should be overturned.
Petitioners Challenge the Policy’s Legitimacy
According to the petitioners, the Ministry of Health failed to conduct adequate public participation before implementing the policy.
Timothy Thondu, counsel for the 1st Interested Party—Kenya Obstetrical and Gynecological Society (KOGS), told the court that public participation was neither extensive nor inclusive, particularly of marginalized communities.
Thondu argued that consultations were limited to two exclusive locations Pride Paradise in Mombasa and Emory Hotel in Nairobi—thus excluding the majority of women whose voices should have shaped the policy.
He maintained that the only a constitutional process can ammend the Constitution and not the AG, the Ministry of Health or the courts.
The contentious policy restricts girls and women aged 18-21 from accessing sexual and reproductive health services without parental consent.
Thondu criticized this provision, stating that it violates the fundamental health rights of young women, particularly in reproductive healthcare.
Debate Over Safe Abortion and Parental Consent
On the subject of safe abortion, Thondu contended that the policy contradicts Article 26(4) of the Kenyan Constitution, which provides exceptions for abortion when a woman’s health is at risk.
He further argued that parental consent should not be mandatory for young women above 18 years seeking reproductive healthcare services, as this requirement infringes on their right to privacy and autonomy.
Civil Society Calls for Overturning the Policy
Representing Petitioner 2022—Rachael Mwikali, Esther Aoko, and other interested parties, Nyokabi Njogu of KELIN (Kenya Legal & Ethical Issues Network on HIV & AIDS) questioned the authenticity of the public participation process.
She stated that the Ministry of Health only gave a one-day notice instead of the legally required 21 days, denying citizens ample time to review and provide input.
Additionally, Njogu pointed out that no documents were shared with the public for review before the engagement sessions, preventing an informed decision-making process.
She criticized the decision to hold participation forums in luxury hotels, arguing that this discriminated against marginalized women who could not attend.
Policy’s Discriminatory Impact on Women
Njogu highlighted that the policy restricts reproductive health services to women aged 25-49, excluding young women aged 15-25 without clear justification.
She emphasized that even post-menopausal women require reproductive healthcare, particularly for conditions like cervical cancer.
Questioning the policy’s ban on self-consent, Njogu asked how young mothers aged 18-25—who may be unable to reach their parents—could access reproductive services without violating their right to privacy.
She expressed frustration over the Ministry’s failure to submit additional evidence but relied on affidavits filed earlier to support her claims.
Grassroots Organizations Condemn the Policy
Speaking to Mtaani Radio Newsdesk, Rachael Mwikali, from the Coalition for Grassroots Human Rights Defenders Kenya, revealed that she personally petitioned the amendment due to the exclusion of marginalized women in the consultation process.
Despite requesting to participate, she said their applications were ignored, and they were barred from contributing to the policy’s formation.
Mwikali accused the Ministry of Health of deliberately holding workshops in inaccessible locations, effectively locking out women from low-income backgrounds.
Justice Chacha Mwita has scheduled the ruling for July 4, 2025.