Why this case is important In Kenya, as in many other countries, women often face serious human rights abuses when seeking reproductive health services in public and private healthcare facilities. These abuses include neglect and mistreatment during and after delivery, physical and verbal abuse, detention in health facilities for inability to pay for services, and female genital mutilation. The pain caused by these abuses is compounded when survivors are unable to access justice or receive redress for what they have suffered. The case of M.N.N. v. Attorney General of Kenya, brought on behalf of a woman who was mistreated, abused, and whose genitals were mutilated without her knowledge or consent in a private Kenyan hospital, aims to bring to light the severity of the harm suffered by women in Kenyan health facilities. M.N.N. s story also reveals the weaknesses of the accountability mechanisms that are meant to protect women from such abuse as well as provide remedies when rights violations occur. The case highlights the state s responsibility to prevent and respond to abuses in both private and public health facilities and demonstrates that, without strong accountability mechanisms grounded in regional and international human rights obligations, women like M.N.N. will continue to suffer violations of their fundamental rights when seeking healthcare. The M.N.N. case is one of the first reproductive rights cases to be brought before the Kenyan High Court that highlights the state s failure to live up to its legal obligations under both domestic law and regional and international human rights standards. With this case, the High Court has an opportunity to demand stronger legal standards on female genital mutilation, to address the systemic accountability issues that underlie rights violations in healthcare facilities, and to affirm Kenya s obligation to implement international human rights law.
WHAT HAPPENED In June 2005, M.N.N., a Kenyan woman, arrived at St. Mary s Mission Hospital, a private hospital in Nairobi, to deliver her second child. A member of the staff, who did not wear a name tag and did not introduce himself, rudely ordered M.N.N. s husband to leave while he examined her. The man, later identified as H.K., proceeded to physically and verbally abuse M.N.N. during the examination and delivery, roughly forcing her legs apart, unnecessarily shoving his fingers into her vagina during labor, and taunting her for not pushing correctly. 1 In deep pain from the abuse, M.N.N. feared for her life and the life of her baby. The abuse did not end after delivery. Instead, H.K. took the baby from M.N.N. and then mutilated M.N.N. s clitoris and part of her labia with a sharp object that she could not see. She later saw a pair of bloody scissors on the side table. M.N.N. was bleeding profusely, but received no assistance. When H.K. finally brought in her baby girl, he hid the child s face and spread her legs, revealing her genitalia. You see what you have given birth to? he said. He then took the child away. The next day, during the pre-release check-up, a hospital staff member expressed shock at M.N.N. s swollen private parts but did not offer to help her get care. It was only after returning home that M.N.N. could use a mirror to see what had been done to her. She next approached a doctor at St. Mary s for help. The doctor said that what happened to her was unfortunate but if she raised the matter further she would be the one suffering from humiliation. M.N.N. visited doctors at other hospitals, but they also stated that they did not want to get involved and refused to issue a report confirming that she had been genitally mutilated. A women s hospital that specializes in treating survivors of gender-based violence initially completed a report confirming that M.N.N. s genitals had been mutilated, but she was later called back to the same facility for a second examination, after which a doctor denied the initial findings and issued a contradicting report. M.N.N. was able to get another report confirming the mutilation from the Langata Police in April 2006, nearly a year after the violation occurred. However, she first had to pay the policewoman s bus fare so that she would agree to accompany her to the examination as required. Despite the report, the police refused to arrest H.K. unless authorized by Kenya s Attorney General, arguing that genital mutilation is not illegal in Kenya for adult women. The Kenya Medical Practitioners and Dentists Board, which is mandated with overseeing complaints against medical providers in both public and private facilities, also dismissed M.N.N. s claims without explanation and without allowing her to present her case. Since the civil case M.N.N. filed in 2006 was consistently and unreasonably delayed, she filed a constitutional reference in 2008 before the High Court of Kenya with the support of FIDA-Kenya and the Center for Reproductive Rights. M.N.N. continues to experience chronic pain because of the mutilation and is persistent in her desire for redress: You can imagine what I underwent at the hands of people who are supposed to take care of me, she said. They got pleasure torturing me so if this can come to an end, at least they are answerable. 1 Center for Reproductive Rights & Federation of Women Lawyers-Kenya, Failure to Deliver: Violations of Women s Human Rights in Kenyan Health Facilities 32 (2007), available at http://reproductiverights.org/sites/crr.civicactions.net/files/documents/pub_bo_failuretodeliver.pdf [hereinafter Failure to Deliver].
CONTEXT M.N.N. s case exemplifies the failure of the Kenyan government to protect women from violations of their reproductive rights in healthcare facilities and to provide adequate redress when violations occur. Failure to Protect Women from Female Genital Mutilation Female genital mutilation is the collective name given to several different practices that involve the cutting of female genitals. According to Kenya s Demographic and Health Survey, 27 percent of Kenyan women have undergone genital mutilation, though rates vary based on province and ethnicity. 2 Genital mutilation has serious health consequences for women and girls. Immediate consequences include severe pain and bleeding that can lead to hemorrhaging and possible death. Long-term complications include chronic infections, infertility, and pain during sexual intercourse, among other consequences. 3 Genital mutilation has been shown to increase the risk of complications during and immediately after delivery. 4 The psychological effects can also be severe: one study found significantly higher rates of post-traumatic stress disorder among women who had undergone genital mutilation than those who had not. 5 The UN Special Rapporteur on Torture has also recognized that genital mutilation can lead to fear of sexual intercourse, anxiety, depression, and memory loss. 6 In 2001, Kenya passed The Children Act, which prohibits the practice of female genital mutilation on girls under the age of 18. 7 However, Kenya does not have any laws that protect adult women from female genital mutilation or that hold perpetrators accountable specifically for this violation. In 2010, Kenya ratified the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa (Maputo Protocol), which requires states to take legislative measures to prohibit female genital mutilation. 8 The Maputo Protocol also mandates states to provide necessary support to victims of harmful practices, including health, legal, and psychosocial support. 9 Failure to Address Abuse in Healthcare Facilities The government of Kenya controls slightly more than half of all health facilities in the country while the rest including the majority of maternity homes are managed by non-governmental, private, and mission organizations. 10 While care tends to be better in private facilities, this is not always the case, as M.N.N. s experiences indicate. 11 Kenyan women face violations of their reproductive rights including verbal and physical abuse, denial of care, and detention in healthcare facilities for being unable to pay service fees in both public and private settings. 12 2 Kenya National Bureau of Statistics et al., Kenya Demographic and Health Survey 2008-09 264 (2010), available at http://www.measuredhs.com/pubs/pdf/ FR229/FR229.pdf. 3 See World Health Organization (WHO), Female genital mutilation (Fact sheet no. 241), http://www.who.int/mediacentre/factsheets/fs241/en/index.html (last visited Dec. 15, 2010); see also WHO, Health complications of female genital mutilation, https://www.who.int/reproductivehealth/topics/fgm/health_ consequences_fgm/en/index.html (last visited Dec. 15, 2010). 4 WHO, Female genital mutilation and obstetric outcome: WHO collaborative prospective study in six African countries, 367 Lancet 1835-41 (2006), available at http://www.who.int/reproductivehealth/publications/fgm/fgm-obstetric-study-en.pdf. 5 Alice Behrendt et al., Posttraumatic Stress Disorder and Memory Problems after Female Genital Mutilation, 162 Am. J. Psychiatry 1000-02 (2005). 6 Manfred Nowak, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, para. 50, U.N. Doc. A/ HRC/7/3 (2008) [hereinafter Report of the Special Rapporteur 2008]. 7 The Children Act, No. 8 (Rev. ed. 2007), 14 (Kenya), available at http://www.kenyapolice.go.ke/resources/childrens_act_no_8_of_2001.pdf. 8 Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa, 2 nd Ordinary Sess., Assembly of the Union, adopted July 11, 2003, art. 5(b) [hereinafter Maputo Protocol]. 9 Id. art. 5(c). 10 David I. Muthaka et al., Kenya Inst. for Pub. Pol y Res. and Analysis, A Review of the Regulatory Framework for Private Healthcare Services in Kenya 7, 10 (KIPPRA Discussion Paper No. 35, Mar. 2004) [hereinafter Review of the Regulatory Framework]. 11 See Failure to Deliver, supra note 1, at 60-62. 12 Failure to Deliver, supra note 1, at 26-58.
Context (continued) The legal and regulatory framework for Kenya s healthcare system is poorly developed and not well enforced, resulting in rights violations and few effective channels for redressing these abuses. Until the adoption of a new constitution in August 2010, there was no constitutional protection of the right to health. 13 Kenya has no comprehensive healthcare law that provides clear guidelines to healthcare providers. 14 Kenyan law does require medical practitioners to provide treatment with reasonable care and skill and with the informed consent of the person undergoing the services. 15 However, a study found that tort law is not well developed in medical cases and that Kenya s medical malpractice laws are weak, contributing to the poor enforcement of laws governing healthcare providers. 16 Furthermore, there are no laws to protect patients against negligence on the part of doctors or other healthcare staff. 17 Accountability mechanisms within the healthcare sector are also weak or nonexistent. Private health facilities are not required to establish formal complaint processes for patients as a condition of registration. 18 Kenya s medical councils and boards have also failed to use the existing laws to establish their monopoly for regulation of medical care. 19 The Medical Practitioners and Dentists Board, for example, is charged with overseeing complaints against public and private medical providers, but it reviews few complaints. According to research conducted in 2007, the Board s Preliminary Inquiry Committee assessed about 300 complaints while the Board s tribunal heard only 10 cases. 20 Even with its small case load, the Board takes an average of one year to resolve a case. 21 Another study found that, while the Board is regularly presented with serious complaints, it does not take necessary disciplinary measures in most cases. 22 13 Constitution, Art. 43(a) (2010) (Kenya). 14 Review of the Regulatory Framework, supra note 10, at 63. 15 The Penal Code 218, 243(e), Cap. 63 of the Laws of Kenya, (Revised ed. 1985); see also Failure to Deliver, supra note 1, at 63. 16 Review of the Regulatory Framework, supra note 10, at 59-60. 17 Id. at 55. 18 See Failure to Deliver, supra note 1, at 70. 19 Review of the Regulatory Framework, supra note 10, at 55. 20 Failure to Deliver, supra note 1, at 67. 21 Id. at 68. 22 Review of the Regulatory Framework, supra note 10, at 52.
HUMAN RIGHTS FRAMEWORK Right to be free from gender-based violence and discrimination Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 2: States Parties condemn discrimination against women in all its forms [and] agree to undertake: (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women. Article 12: (1) States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care. CEDAW Committee General Recommendation 14: [The Committee recommends that states] [t]ake appropriate and effective measures with a view to eradicating the practice of female circumcision. [and] (b) [i]nclude in their national health policies appropriate strategies aimed at eradicating female circumcision in public health care. General Recommendation 19: (1) Gender-based violence is a form of discrimination that seriously inhibits women s ability to enjoy rights and freedoms on a basis of equality with men (9) States may also be responsible for private acts [of gender-based violence] if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation. Human Rights Committee (CCPR) General Comment 28: (5) States parties should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women s right to equality before the law and to equal enjoyment of all Covenant rights. (11) In States parties where the practice of genital mutilation exists information on its extent and on measures to eliminate it should be provided. Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa Article 2: (1) States Parties shall combat all forms of discrimination against women through appropriate legislative, institutional and other measures [and] enact and effectively implement appropriate legislative or regulatory measures, including those prohibiting and curbing all forms of discrimination particularly those harmful practices which endanger the health and general well-being of women. Article 4: (2) States Parties shall adopt such other legislative, administrative, social and economic measures to ensure the prevention, punishment and eradication of all forms of violence against women. Article 5: States Parties shall [prohibit] all forms of female genital mutilation in order to eradicate them. Right to be free from torture and cruel, inhuman, and degrading treatment International Covenant on Civil and Political Rights (ICCPR) Article 7: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
HUMAN RIGHTS FRAMEWORK (continued) Human Rights Committee (CCPR) General Comment 20: (2) It is the duty of the State party to afford everyone protection against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity. (5) The prohibition in article 7 relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim [A]rticle 7 protects patients in teaching and medical institutions. Convention against Torture (CAT) Article 1: [T]he term torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for any reason based on discrimination of any kind. CAT Committee General Comment 2: (18) [W]here State authorities or others acting in official capacity know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by non-state officials or private actors and they fail to exercise due diligence to prevent, investigate, prosecute and punish such actors the State bears responsibility. The Committee has applied this principle to States parties failure to prevent and protect victims from gender-based violence, such as female genital mutilation. African Charter on Human and Peoples Rights Article 5: All forms of exploitation and degradation of man particularly torture, cruel, inhuman or degrading punishment and treatment shall be prohibited. Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa Article 4: (1) Every woman shall be entitled to respect for her life and the integrity and security of her person. All forms of exploitation, cruel, inhuman or degrading punishment and treatment shall be prohibited. Right to health International Covenant on Economic, Social and Cultural Rights (CESCR) Article 12: (1) The States Parties recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. ESCR Committee General Comment 14: (33) The right to health, like all human rights, imposes three types or levels of obligations on States parties: the obligations to respect, protect and fulfil. The obligation to protect requires States to take measures that prevent third parties from interfering with article 12 [right to health] guarantees. (35) States are also obliged to prevent third parties from coercing women to undergo traditional practices, e.g. female genital mutilation.
HUMAN RIGHTS FRAMEWORK (continued) CEDAW Committee General Recommendation 24: (15) The obligation to protect rights relating to women s health requires States parties, their agents and officials to take action to prevent and impose sanctions for violations of rights by private persons and organizations States Parties should ensure: (d) [t]he enactment and effective enforcement of laws that prohibit female genital mutilation. African Charter on Human and Peoples Rights Article 16: (1) Every individual shall have the right to enjoy the best attainable state of physical and mental health. (2) States Parties to the present Charter shall take the necessary measures to protect the health of their people. Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa Article 14: (1) States Parties shall ensure that the right to health of women, including sexual and reproductive health is respected and promoted.
ALLEGATIONS Petitioners argue that M.N.N. s rights under Kenyan and international and regional human rights law were violated both when she was abused and genitally mutilated at the private healthcare facility and when she was unable to obtain redress from the hospital, police, or Medical Board. Petitioners and amicus curiae argue that the state failed to fulfill the following obligations: States have a responsibility to actively prevent and protect individuals from human rights violations committed by third party or non-state actors. International and regional human rights standards affirm that states have an obligation to actively prevent and protect individuals from human rights violations. In M.N.N. s case, the petitioners argue that the Kenyan government failed to take action to prevent and protect M.N.N. from the violation of three key human rights: the right to be free from gender-based violence and discrimination, the right to be free from torture and cruel, inhuman, and degrading treatment, and the right to health. Kenya is a party to multiple treaties that protect these rights, including the African Charter on Human and Peoples Rights, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention against Torture (CAT), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Additionally, both the former and current Kenyan Constitution protect individuals from torture and inhuman and degrading punishment or treatment. 23 States obligations to prevent and protect individuals from human rights violations apply whether the violations are committed by someone acting in an official government role or by non-state or third party actors, such as private healthcare providers. The Committee against Torture has noted that a state s failure to exercise due diligence in preventing, sanctioning, and remedying human rights violations committed by non-state actors allows these actors to commit abuses with impunity and provides a form of encouragement and/or de facto permission. 24 The UN Special Rapporteur on Torture has established that a state s failure to prosecute genital mutilation carried out in private healthcare settings indicates the state s de facto consent. 25 Furthermore, the ESCR Committee has found that when states do not take all necessary measures to protect against third party infringement of the right to health, they violate their affirmative duty to protect. 26 State duties to protect human rights include an affirmative obligation to prevent, investigate, and punish human rights violations, including those committed by third party actors. The duty to prevent, investigate, and punish human rights violations is inherent in states responsibility to ensure effective human rights protection. CEDAW, for example, requires states to adopt appropriate measures including sanctions to ensure equal protection for women s rights and to establish competent public institutions to enforce those rights. 27 The African Charter on Human and Peoples Rights affirms that states must adopt legislative or other measures to protect human rights. 28 Additionally, the Human Rights Committee has noted that states must enact legislative, administrative, judicial and other measures to prevent and punish [torture or cruel, inhuman and degrading treatment]. 29 In M.N.N. s case, the absence of legislation prohibiting genital mutilation 23 See Constitution, Art. 74(1) (2008) (Kenya); see also Constitution, Art. 25(a) (2010) (Kenya). 24 Committee against Torture, General Comment No. 2: Implementation of Article 2 by States parties, para. 18, U.N. Doc. CAT/C/GC/2 (2008). 25 Report of the Special Rapporteur 2008, supra note 6, para. 53. 26 Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health, para. 51, U.N. Doc. E/C.12/2000/4 (2000). 27 Convention on the Elimination of All Forms of Discrimination against Women, adopted Dec. 18, 1979, art. 2(b)-2(c), G.A. Res. 34/189, UN GAOR, 34 th Sess., Supp. No. 46, at 193, U.N. Doc. A/34/46, U.N.T.S. 13 (entered into force Sept. 3, 1981). 28 African Charter on Human and Peoples Rights, adopted June 27, 1981, art. 1, O.A.U. Doc. CAB/LEG/67/3, rev. 5, 21 I.L.M. 58 (1982) (entered into force Oct. 21, 1986). 29 Human Rights Committee, General Comment 20: Prohibition of torture or cruel, inhuman or degrading treatment or punishment, 44 th Sess., para. 8 (1992).
allegations (continued) of adult women, the state s deficient regulation of healthcare facilities, and the lack of a proper investigation into M.N.N. s claims by the health institution, the police, or other oversight mechanisms illustrate the state s failure to take adequate measures to prevent, investigate, and punish violations of M.N.N. s human rights. States have an obligation to provide an effective remedy for human rights violations, which should include direct redress for the victim as well as other measures to address the systemic problems that allowed the violation to occur. The ICCPR obliges states to ensure that persons whose rights are violated have an effective remedy. 30 The Human Rights Committee, which monitors compliance with the ICCPR, states that an effective remedy includes reparations such as restitution, rehabilitation, guarantees of non-repetition, changes in laws and practices, and bringing to justice perpetrators of rights violations. 31 The ESCR Committee has noted that a state is obligated to use all the means at its disposal to give effect to the rights recognized in the Covenant by making appropriate means of redress, or remedies available. 32 The Maputo Protocol requires states to provide for appropriate remedies to any woman whose rights or freedoms have been violated. 33 The Maputo Protocol also requires states to ensure the provision of necessary support to victims of harmful practices through basic services such as health services, legal and judicial support. 34 In M.N.N. s case, redress should include both medical care for continued complications of genital mutilation and access to justice for the abuses she suffered. The government s failure to provide redress is a clear violation of its obligations under international law. 30 International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, art. 2, para. 3(a), G.A. Res. 2200A (XXI), UN GAOR, 21 st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976). 31 Human Rights Committee, General Comment 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant, para. 16, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004). 32 Committee on Economic, Social and Cultural Rights, General Comment No. 9: The domestic application of the Covenant, para. 2, U.N. Doc. E/C.12/1998/24 (1998). 33 Maputo Protocol, supra note 8, art. 25. 34 Id.
CALL FOR ACTION Kenyan Government: Enact a law criminalizing all forms of female genital mutilation against adult women. Guarantee adequate resources to ensure implementation of laws and policies protecting women and girls from genital mutilation and to train police, prosecutors, and judges in such laws. Take steps to incorporate the provisions of the Maputo Protocol into national law, including provisions that protect the sexual and reproductive health rights of women and specifically protect the rights of women against female genital mutilation. Establish an oversight and regulatory mechanism for all health facilities, both public and private, to ensure adequate provision of healthcare to all citizens. Improve the complaint mechanisms of the Medical Board and other statutory bodies established to regulate the medical profession. Establish formal guidelines for complaint-screening procedures and take measures to reduce delays in the complaint process. Ensure that patients have legal representation in the complaint process. Develop and disseminate a patients rights charter and improve the regulation and training of clinical personnel, including personnel in the Medical Board s oversight. Public and Private Healthcare Providers: Protect patients rights and promote accountability. Conduct trainings for all staff members on protecting the rights and dignity of patients. Encourage healthcare staff to report violations. Post patients rights in the reception area and examination rooms in healthcare facilities and provide complaint boxes in accessible areas of healthcare facilities. Develop clear processes for lodging and redressing complaints and make this information readily available to patients. Ensure that all healthcare staff members wear badges with their names and positions. Associations of Healthcare Professionals in Kenya: Revise ethical codes to provide sanctions for all violent and discriminatory practices against women and ensure that these provisions are widely publicized. Emphasize the importance of respecting patients rights in trainings and other activities for members. International Donors: Ensure that funding to public and private reproductive healthcare programs promote women s human rights, and establish indicators for these projects based on the criteria of quality, accountability, efficiency, and respect for women s rights. In 2008, the Committee on Economic, Social and Cultural Rights expressed concern at the continued practice of female genital mutilation in Kenya. The Committee urged the Kenyan government to adopt legislation criminalizing all genital mutilation of adult women and to train police, prosecutors, and judges on strict application of laws prohibiting this practice.