ISSUES AND PERSPECTIVES ARISING FROM AN ANALYSIS OF THE POLICY AND GOVERNANCE LANDSCAPE IN KENYA THAT RELATES TO THE

RIGHT TO HEALTH AND DIGNIFIED CARE DURING CHILDBIRTH

The Federation of Women Lawyers Kenya (FIDA Kenya) and Population Council 2011

ACKNOWLEDGEMENTS No woman should die while giving birth. Addressing the policy and legal framework in Kenya in so far as provision of respectful childbirth services to pregnant mothers is concerned is vital in meeting MDG 5, reduction of maternal mortality and morbidity all women should be aware of their right to be treated with respect and dignity before, during and while giving birth. FIDA Kenya is grateful to Milly Odongo, our Consultant for conducting this desk review study which goes a long way in enhancing our previous work on Failure to Deliver in the wake of the Constitution 2010. We are grateful to our Transformative Justice Team for editing the report. We appreciate our Heshima Project partners - Nurses Association of Kenya, National Council of Nurses and the Division of Reproductive Health and the Ministry of Public Health and Sanitation for their invaluable input in this report. We deeply appreciate Population Council through the Heshima Project for their financial support which made this study possible.

Grace Maingi-Kimani Executive Director

LIST OF ACRONYMNS AND ABBREVIATION

AIDS
ANC

Acquired Immune Deficiency Syndrome

Antenatal Care

APHRC ASRH ART CIA D&A ICPD FP FGM HIV ICESCR KDHS MMR MOH MDG NMR NRHS PMTCT RTI/STI RH RHRA SRH SRR TBA
UNICEF WHO

African Population and Health Research Center Adolescent sexual and Reproductive Health Anti retroviral therapy Central Intelligence Agency Disrespect and Abuse International Conference on Population and Development Family Planning Female Genital Mutilation Human Immuno-Deficiency Virus International Covenant on Economic, Social and Cultural Rights Kenya Demographic and Health Survey Maternal Mortality Ratio Ministries of Health (Ministry of Medical Services; Ministry of Public Health and Sanitation) Millennium Development Goal Neonatal Mortality Rate National Reproductive Health Strategy Prevention of Mother to Child Transmission Reproductive Tract Infection/Sexually Transmitted Infection Reproductive Health Reproductive Health and Rights Alliance Sexual and Reproductive Health Sexual Reproductive Rights Traditional Birth Attendant
United Nations Fund for Children World Health Organisation

TABLE OF CONTENTS
ACKNOWLEDGEMENTS 2 LIST OF ACRONYMS AND ABBREVIATIONS ...3 1.0 INTRODUCTION 5 1.1 Overview 5 2.0 THE POLICY AND GOVERNANCE FRAMEWORK 5 2.1 Background and Context 5 2.2 The operationalization of dignified child birth; Kenyan Context 9 2.3 Key Provisions 10 2.4 The Policy and Governance Landscape: A review of its Gaps and Contradictions 11 2.4.1 Review of Legal Framework for Health Standards 11 2.4.2 Financing of Health Services 13 2.5 The Philosophy of Maternal Health Rights 14 2.5.1 Kenyan Practice 16 3.0 TARGETED APPROACHES TO ACCELERATION PROGRESS AND MINIMIZE OPPORTUNITIES ...18 3.1 Policy Level .18

3.2 Community Level ...19 4.0 REFERENCES .20

5.1 APPENDICES .29

5.1.1 APPENDIX 1: POTENTIAL CONTRIBUTORS TO AND IMPACT OF DISRESPECT AND ABUSE IN CHILDBIRTH ON SKILLED CARE UTILIZATION 29 5.1.2 APPENDIX 2: INTERNATIONAL AND REGIONAL INSTRUMENTS AND THEIR RATIFICATION AND INCLUSION IN DOMESTIC LAW..30

________________________________________________________________ 1.0 INTRODUCTION

1.1 Overview This report presents the findings of an analysis of the policy and governance landscape as well as rules and systems that need to be put in place in order to bring the current health standards into full effect. It points to key policy questions that are relevant to providing respectful care during childbirth.

2.0 THE POLICY AND GOVERNANCE FRAMEWORK

2.1 Background and Context Evidence suggests that in addition to financial, geographic and cultural barriers, a major factor inhibiting pregnant women from seeking a facility delivery is due to the disrespectful and abusive treatment carried out by health care providers in maternity units. Although quality improvement mechanisms have been introduced over the last two decades, this has failed to encourage women to give birth in a facility and an increase in skilled birth attendance - a major target for meeting MDG 5. Despite acknowledgement of these behaviours by policy makers, program staff, civil society groups and community members, the problem appears to be widespread but the drivers of disrespect and abuse in childbirth and the prevalence are not well documented. The Kenyan government has stepped up initiatives that offer room to improve womens reproductive health and rights. This is demonstrated by the State having ratified key international human rights treaties and the promulgation of the Constitution of Kenya 2010, which both include clauses on right to life and right to dignity (see table 1). The application of these international treaties, and the various laws and health strategies in force are to ensure a right to high standards of health care including respectful and dignified treatment during childbirth. However this is not the case. Despite these provisions, legal, policy, regulatory and institutional cultural barriers exist both within and outside the health sector, which test the states efforts to improve sexual and reproductive health in line with human rights commitments. In 2007 FIDA Kenya released a report entitled Failure to Deliver which describes how for decades Kenyan women seeking reproductive health services have suffered serious human rights violations including physical and verbal abuse and detention in health facilities for inability to pay. Contributing factors perceived to contribute to poor care include shortage of funding in the public health sector which results in shortage of drugs, equipment and staffing thereby resulting in generally poor service delivery which in some case have fatal and or negative long-term effect on mothers/ child seeking reproductive/infant health services. 5

In reality, this position has not changed much despite the ratification of various treaties and even with the promulgation of the Kenyan Constitution in 2010 which in its provisions aims to correct these shortcomings. In the current national Reproductive Health Strategy (2009-2015) - (RHS), NHSSP, Kenya Family Planning Policy, National Coordinating Agency for Population and Development policy Brief 9, maternal death is on the rise in Kenya, the government recognizes these shortcomings in its foreword by accepting that there have been growing concerns in the reversals in reproductive health since the 1980s and early part of 1990s and its objective aim is to address these concerns. Noteworthy is the fact that the current Reproductive Health Strategy indicates the reproductive health concerns include the following: social and cultural beliefs and practices, lack of womens empowerment, lack of male involvement, poverty, and health management systems which impede the demand for utilization of reproductive health care. The following table shows the number of women recommending antenatal care since 1993 to 2008/9 Kenya Demographic and Health Survey (KDHS).

100

80

Recommended number of antenatal care visits

60

40

20

0 1993 1998 2003 2008/9

The graph above shows the number of women referred for antenatal declined from 4 and above (64%) in 1993 to 60 % in 1998 to 52% in 2003 to 47.1% in 2008/9.

The graph above shows the number of women receiving skilled care during delivery, which declined from 51% in 1989 to 45% in 1993 and 1998 to 42% in 2003 and 92% in 2008/9.

Neonatal Mortality Rate per 1000 live births

1998 2003
2008/9

The pie chart above shows the neonatal mortality rate was estimated at 33 per 1,000 live births in 2003, 45 per 1,000 live births in 1998 and 22 per live births in 2008/9. 7

The Contraceptive Prevalence Rate (CPR) among married women for all methods rose from 27 to 39 percent between 1989 and 1998 and stalled thereafter.

The unmet need for family planning has stagnated at about 24 per cent with the poorer women more disadvantaged. This has been largely due to inadequate service provision and poor access to family planning commodities and lack of support for contraceptive security. The unmet need for RH services translates into unacceptably high maternal mortality ratio of about 414 per 100,000 live births since 1998, and high morbidity levels. The lack of access to rapid means of referral in case of emergency compounds the situation. According to Kenya Aids Indicator Survey (KAIS), 2007 preliminary results about 83.6 per cent of HIV infected persons do not know their HIV status, while 26 per cent of those who reported themselves uninfected tested positive. The unmet need for ART is about 18 per cent among adult Kenyans who are HIV, while between 20-40 per cent of HIV-infected pregnant women that needed ART for PMTCT in 2007 were not receiving it. Nearly half of the women who are HIV positive have unmet need for family planning services. The great majority of unmet need is attributed to low level of awareness of HIV status among those infected. Nearly 1 out of 10 pregnant women in Kenya are infected with HIV (9.6 per cent) up from 7.3 per cent in 2003 with minimal differences between the urban and rural areas. The high unmet need for reproductive health services has been compounded by the poor growth of the economy in the 1990s, leading to the deterioration of the welfare of the majority of the population. This resulted into slightly more than half of the population living below the poverty line. However, the economic and structural reforms established in 2003 led to growth in real gross domestic product from 2.8 per cent in 2003 to 7 per cent in 2007. Positive change in the economic growth resulted in the proportion of those living under the poverty line to decline from 56 per cent to 46 per cent in the 2003-2007 periods. However, due to a number of factors such as the global rise in fuel cost and food prices, the GDP growth rate is not rising as expected and such a negative outcome cannot only compound the state of poor reproductive health outcomes but also limits the adequate provision of the services. 8

Whereas the scenario captured above is an assessment of the government, the other stakeholders in the sector do believe that the position could be much more deplorable. The situation has indeed been compounded by the recent post election violence, which caused the displacement of some 300,000 people, disrupted delivery of basic services in the most affected areas, displaced health workers and closed or rendered partially functional health facilities, and contributed to the pending food crisis. The health sector has been faced with inadequate funding, weak management systems, and shortages in qualified health staff. The allocation for health remains at about 8 per cent, far below the Abuja target of 15 per cent. MOH and development partners have responded to the human resource crisis brought about by the freeze on employment in the late 1990s and continuous to the present times. The low allocation for health and the high poverty prevalence in the country means that the majority of the Kenyan populace, and mainly the women, continues to lack proper health treatment. This study aims to clearly chart out the landscape of the international treaties that Kenya has subscribed to, the laws instituted and the strategies adopted by the government. In addition it provides an analysis of the effectiveness in its implementation as lifted from various reports submitted by the government and other key stakeholders. Finally the gaps are identified and the factors contributing to the shortcomings in achieving internationally accepted health standards outlined.

2.2 The Operationalization of Dignified Child Birth; Kenyan Context Kenyas health gains of the 1980s and 1990s have begun to reverse, with the country experiencing a general deterioration in health status, with large inequalities existing geographically and by wealth quintiles. The health sector has been faced with inadequate funding, weak management systems, and shortages in qualified health staff. The allocation for health remains at about 8 percent, far below the Abuja target of 15 per cent. MOH and development partners have begun to respond to the human resource crisis brought about by the freeze on employment in the late 1990s. In 2008, the government launched Vision 2030, a blueprint for development anchored on three pillars: economic, social, and political. The economic pillar aims to improve the prosperity of all Kenyans through a 10 percent economic growth rate by 2012. The National Health Insurance scheme will be implemented and a National Health Care Council created to improve services in the health sector. Concerning the social pillar, the government aims to invest in different human and social projects and programmes, all important to the populations quality of life. Among the sectors aimed, the health sector has been and will be improved notably by the restoration of health care facilities and infrastructures in order to make them more functional, efficient and sustainable. This action plan also assures effective supply of drugs and other health commodities, which procurement and distribution are now managed by the New Kenya Medical Supplies Agency (KEMSA) since 2008. Another part of the action plan is consecrated to the development of rural functional health facilities able to provide integrated health services. Finally, awareness concerning preventive healthcare and training of healthcare workers are two important factors, among others, contributing to increasing access to healthcare. This overall improvement of the healthcare system originates from funds allocations, constructions and workers training.

In 2007, Kenya recognized the need to scale up investments in child health and maternal health to achieve Kenyas long-term goal, as stated in its National Health Sector Strategic Plan, to reduce U5MR to the MDG target of 33 by 2015 and the MMR to 170 by 2010. From the KDHS 2003, the U5MR was at 115 per 1,000 live births, and the IMR was at 77 per 1,000 live births. UNICEF estimates U5MR to have risen to 121/1,000 in 2006. Kenya has one of the highest numbers of neonatal deaths in the African region, with 43,600 neonatal deaths per year. Other major causes of child deaths include acute respiratory infections (ARI), diarrhea, malaria, and HIV/AIDS. Malnutrition is an underlying factor in about 70 per cent of illnesses that cause death among the 5 year-olds and younger. From the KDHS 2003, 30 per cent of children under 5 are stunted, while 11 per cent are severely stunted. Care-seeking and treatment for major childhood illness remain poor, with only 46 per cent of children with reported ARIs having been taken to a health professional, and 51 per cent of children with diarrhea receiving ORT. Although malaria is a major cause of morbidity and mortality, the successful increase in ITN coverage (52 per cent in 2006) and the use of ACT has reduced child deaths by 44 per cent in four sentinel malaria-endemic districts. From 2003 DHS data, immunization coverage stands at 49 per cent but is being affected by critical vaccine shortages. HIV/AIDS prevalence has risen to an estimated 7 per cent, and there are an estimated 102,000 HIV-positive children in Kenya. Maternal mortality remains a serious concern, with WHO estimating MMR to have risen to 560 per 100,000 live births in 2005. Studies suggest that the majority of these deaths are due to obstetric complications, including hemorrhage, sepsis, eclampsia, obstructed labor, and unsafe abortion. Only 42 per cent of births are attended by a skilled provider (KDHS 2003). Fertility appears to have stalled at an average of 4.9 children per woman. Contraceptive prevalence has also stagnated at 39 per00 cent, although knowledge of FP methods in Kenya is almost universal. The MOHs national reproductive health policy outlines priority actions for the safe motherhood program in Kenya to improve the health of women. They include ensuring access to RH information, skilled care, basic and comprehensive emergency obstetric care, and strengthening the capacity of CORPS (community own resource persons) to support birth preparedness, referrals, postnatal care, and registration of births, among other priorities.

2.3 Key Provisions The desk review includes review of public health laws, policies and relevant background documents. Information was obtained from National Plans, Policies, Acts of Parliament, reports, and papers through internet and libraries. The analysis was based on areas of health equity identified in international and regional treaties and protocols. International and regional instruments include both legally binding and non-legally binding instruments. This section summarizes provisions of principal legally binding international and regional instruments with implications for public health standards and examines their incorporation into the domestic laws of Kenya. In 2007, Kenya recognized the need to scale up investments in child health and maternal health to achieve Kenyas long-term goal, as stated in its National Health Sector Strategic Plan, to reduce U5MR to the MDG target of 33 by 2015 and the MMR to 170 by 2010. From the KDHS 2008, the U5MR was at 74 per 1,000 live births, and the IMR was at 52 per 1,000 live births, this indicates a remarkable decline compared to the statistics in the KDHS 2003. In 2008, the government under the Ministry of Planning Development and Vision 2030 launched Vision 2030, as mentioned previously.

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The Kenyan Constitution 2010, directly or indirectly provides for the right to maternal health. Article 2 (subsection (5) and (6)) states that the general rules of international law as well as any treaty or convention ratified by Kenya form part of its domestic laws, this implies that international and regional instruments ratified, acceded to or signed by Kenya has the same legal obligations than Kenyan laws. Article 27 advocates for equality and prohibits all forms of discrimination, while Article 43 guarantees each persons economic and social rights, in particular the right to the highest attainable standard of health, which includes the right to health services including reproductive health rights. Articles 26 and 28 provide for right to life and human dignity respectively.

2.4 Policy and Governance Landscape: A Review of Its Gaps and Contradictions
The wider protection of health equity would come from including the provisions outlined above in domestic law. It is thus important to draw attention to the deficits in their application. Particular attention should be given to ensuring national laws cover the relevant provisions in Article 12 of the International Covenant on Economic, Social and Cultural Rights (1966); the relevant provisions of the African Banjul Charter on Human and Peoples Rights and relevant provisions of the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa (2003/5). The right to enjoy the highest attainable standard of physical and mental health as outlined in Article 12 of the ICESR, for example, is generally expressed in a more limited manner in national laws.

2.4.1 Review of the Legal Framework for Health Standards This section explores the legal frameworks for equity and public health within major themes. Constitutional provisions for these areas of legal rights are explicitly separated, as they signal a hierarchy of protection of health rights in all areas of economic and social activity. Where public health is given explicit protection in areas of economic and social activity in law this is noted in the analysis.

Right to Life The right to life is central to humanity. It is enshrined in Article 3 of the Universal Declaration of Human Rights and in Article 6 of the International Covenant on Civil and Political Rights, (ICCPR) 1966, making it legally enforceable in every UN member state. These instruments emphasise that every human being has the inherent right to life which ought to be protected by law and therefore no one shall be arbitrarily deprived of his/her life. As example, Vision 2030 requires the government to lower infant and maternal mortality. The right to life is protected in law, particularly in terms of protection of life and the provision of offences that undermine this right. Legal protection of this right is adequate but its application is constrained by poverty and poor access to medical services.

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Legal protection of the right to life in Kenya

The Constitution is the supreme law of Kenya and any law inconsistent with it is null and void. Chapter Four (4) of the Constitution contains the Bill of Rights, which offers protection for the safeguards of the individual rights and freedoms for every Kenyan.

The Constitution provides that no person can be deprived of his/her life intentionally, expect for the extents authorized by the constitution or other written law. The Constitution states that life begins at conception.

The Children Act 8 of 2001 provides the inherent right to life to children (Section 4) and puts responsibility on government and family to ensure children survival right from the time of birth.

The Penal Code, Chapter 63, provides that anyone who: unlawfully or negligently does any act which is, and which he knows or can reasonably believe to be, likely to spread the infection of any disease dangerous to life (Section 186); commits unlawful acts or omits to act and causes the death of another person (Section 202); of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder (Section 206); prevent a child from being born alive by any act or omission (Section 228); and administers poison to another which endangers or causes grievous harm (Section 236) is guilty of an offence.

Legal Protection of Sexual and Reproductive Health Rights The Public Health Act Cap 242(1940) requires: every person suffering from venereal diseases to seek medical treatment from medical practitioner (Section 43); parent or guardian to seek treatment for child believed to be suffering from venereal disease (Section 46). It is an offence to fail to have the child treated (Section 46 (2)) and persons suffering from communicable venereal diseases should not work in employment entailing care of children or handling food intended for consumption (Section 47). They should thus not handle expectant or delivering mothers.

All medical officers with knowledge of a person suffering from a communicable venereal disease must give such person notice to attend medical treatment (Section 48). It is an offence for anyone with venereal disease to willfully or negligently infect another (Section 49). Examination of female patients 12

should be done by female medical practitioner (Section 52). Advertising or sale of medicines, appliances or articles to alleviate or cure venereal disease, disease affecting generative organs or sexual impotence is prohibited.

The Children Act of 2001 provides that children should be protected from sexual exploitation and use in prostitution, inducement or coercion to engage in any sexual activity, and exposure to obscene materials (Section 15). Contravention of these provisions would predispose a child to risk of early pregnancy with all the potential risks that it brings. The Employment Act, 2006 prohibits sexual harassment in employment. Thus employees working with delivering mothers must not subject them to harassment.

The Sexual Offences Act 3 of 2006 makes provision for sexual offences, their definition, prevention and the protection of all persons from harm from unlawful sexual acts (Preamble). It is also an offence for any person to rape (Section 3); to defile (Section 8); or sexually harass (Section 23) a child; and for any person with actual knowledge that s/he infected with HIV or any other life threatening sexually transmitted disease intentionally, knowingly and willfully infects another person (Section 26). These provisions apply equally to those working with delivering mothers

Legal Provisions for Cultural Practices Related To Health

Article 44 (3) provides that a person shall not compel another person to perform, observe or undergo any cultural practice or rite. The latest Prohibition of Female Genital Mutilation Act of 2011 prohibits female genital mutilation on all women irrespective of their age. This clearly prohibits subjecting delivering mothers to such acts such as Female Genital Mutilation (FGM). In its Section 14, the Children Act of 2001 provides that no person should subject a child to female circumcision, early marriage or other cultural rites, customs or traditional practices likely to negatively affect the child's life, health, social welfare, dignity or physical or psychological development.

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2.4.2 Financing of Health Services Funding for health facilities is key to improve health standards and to the population health and well-being. However, the level of funding in Kenya is still insufficient to ensure equitable access to basic and essential health services and interventions, making adequacy and equity of resource mobilization and allocation for health important the principle of financial protection, fundamental to equitable health financing, states that no one in need of health services should be denied access due to inability to pay and that households livelihoods should not be threatened by the costs of health care. According to EQUINET, progressive health care financing implies that contributions should be distributed according to ability-to-pay and those with greater ability-to-pay should contribute a higher proportion of their income than those with lower incomes. This cross-subsidies system (from the healthy to the ill and from the wealthy to the poor) should be promoted in the overall health system. Fragmentation between and within individual financing mechanisms should be reduced and mechanisms put in place to allow cross-subsidies across all financing mechanisms. Individuals should not be prejudiced in their access to essential health care due to the location of their residence, income or other factors. Government allocations are a critical way of offsetting disparities arising from other factors, and should take these disparities into account when allocating resources across areas and levels of the health system (EQUINET SC, 2007). National policies pay some attention to these issues. In Kenya, under Vision 2030 government pledges to provide resources to those who are excluded from health care because of financial reasons. It further aims to implement a financing plan that involves the government, donors and other stakeholders. In Kenya, various acts provide for funding of services, for example:

The Public Health Act provides that expenses incurred by the municipal council in maintaining a person in a hospital or in a temporary place for the reception of the sick can be recovered from him/her after discharge from the hospital (Section 3). The Children Act 8 of 2001 requires government to use the maximum available resources to achieve progressively full realisation of the rights of the child (Section 3). The National Hospital Insurance Fund Act 9 of 1998 establishes a National Hospital Insurance Fund and makes provision for contributions to and the payment of benefits out of the Fund (Preamble). The Factories Act, Chapter 514 requires the establishment of the Occupational Health and Safety Fund to be administered by the chief inspector (Section 70A). The Work Injury Benefits Act, 2007 requires every employer to obtain and maintain an insurance policy, with an insurer approved by the Minister in respect of any liability that the employer may incur to any of his employees (Section 7)

Notwithstanding all policies and measures undertaken by the State, the health sector continues to be faced with inadequate funding thereby affecting service delivery.

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2.5 The Philosophy of the Maternal Health Rights

As mothers, women develop society in a particular way through the transmission of life. Ensuring the health of the mother and child during pregnancy and at the moment of delivery is central to social development. Womens education and access to health care are key indicators of social progress. High maternal death rates are indicative of social and medical failure, and each death has a devastating impact on the family, the community, and the economic and social development. There is clearly a lack of progress made on the maternal health MDG 5, which is currently the least achieved MDG. Maternal morbidity and mortality are largely preventable and must be addressed by person-centered health policies that focus on the needs of women within their context. Preventable complications or disabilities arising from deliverysuch as obstetric fistulacan also result in long-term suffering for the mother and her family. Death and disabilities arising from pregnancy and childbirth often lead to decreased quality of nutrition and education for children, and familial insecurity and instability due to the important connection between healthy mothers and healthy children. The tragedy of maternal mortality or morbidity has disastrous consequences for women, children and families. The causes of maternal mortality and morbidity are hemorrhages, infections, obstructed labors and hypertensive disorders and unsafe abortions. These causes can be significantly addressed through investment in skilled care, and provision of health education to women and families. Improved access to basic health care, nutrition, medicines and technologies are the additional means by which maternal mortality and morbidity can be reduced and eliminated. These services can be provided in cost-effective ways, and delivery systems to reach rural and marginalized communities can and should be prioritized. A knowledge-based health care system empowers women, particularly by ensuring adequate fertility literacy, which enables women to understand and access basic health care. If international law on human rights is to become truly universal, it is necessary to require that nations take preventive and curative measures to protect women's reproductive health and provide women with the capacity for reproductive self-determination. International human rights treaties require that national and international laws guarantee the rights of women to be free from discrimination; enjoy and access medical attention and benefits of scientific progress in maternal health. The human right to health naturally brings together three distinct groups with a common interest: health care professionals and health activists, who use the idea of a human right to health in their work; human rights lawyers and political scientists, who have an understanding of human rights law and institutions; and political philosophers who can consider the conceptual and foundational aspects of human rights. Targeting these groups to reflect on how best to take forward and to interpret the human right to health will likely receive results. It is imperative to mobilize resources and strengthen political will to promote maternal health. Essential programs to ensure healthcare for mothers must be given priority in the development and funding of national and county health initiatives. Maternal health concerns all individuals since it is necessary for the development of healthy and prosperous societies. For better and improved health standards other aspects that need to be addressed include the following:

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Food Safety and Security: the right to food refers to rights for regular access to sufficient, nutritionally, adequate and culturally acceptable food for an active, healthy life (FAO, 2007). Articles 11(1) and (2) of the International Covenant on Economic, Social and Cultural Rights recognize the fundamental right of every-one to be free from hunger, and links this to achieving the right to health. The Convention on the Rights of the Child , Article 24(2) (c), obliges states to combat disease and malnutrition, including within the framework of primary health care. The government through the Ministry of Agriculture has a strategic Paper on food security whose primary objective is to ensure that there is food security for all. The realisation of this objective has not been achieved as has been clearly evident in recent times with the national famine that has gripped the country recently.

The lack of food or adequate nutrition is a direct negative factor to adequate health standards and needs to be addressed by the Government. Expectant and delivering mothers as well as new mothers need special dietary concerns. Promotion of Healthy Environment; Healthy environments include access to health promoting shelter, water, sanitation, working conditions and community environments. Socio-economic differentials in access to healthy environments in Kenya are a determinant of inequalities in health, with particular disadvantage for poor communities (EQUINET SC, 2007).

Housing: whereas the constitution has addressed the need for proper housing under article 43.1(c), the realization is yet to be achieved as demonstrated by the many slums located throughout the country and other poor housing schemes nearby the towns and in semi arid regions whose residents live in deplorable shelters. A number of legislations namely the Public Health Act (1-prevent erection or occupation of unhealthy buildings or unhealthy sites, 2-prohibits causation of nuisance by persons on land or premises injurious or dangerous to health. The Environment and Management act 8 of 1999 (right to clean environment), Protection of the right to health education. Not much in legislation apart from the HIV and Aids Prevention Act of 2006 which requires government to promote public awareness about causes modes of transmission consequences means of prevention and control of HIV and AIDS through a comprehensive nationwide educational and informational campaign

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2.5.1 Kenyan Practice Maternal health remains a big challenge in much of sub-Saharan Africa, with maternal deaths estimates still as high as 1000 deaths in 100,000 live births in some countries. In Kenya, maternal deaths are currently estimated at an average of 488 per 100,000 live births (DHS 2008/9). In urban Kenya, one would expect the number of maternal deaths to be lower given the existence of many well-equipped health facilities, but this is not necessarily the case. Research by APHRC in informal settlements (slums) in Nairobi, Kenyas capital has shown that these areas have a maternal mortality of 706 deaths per 100,000 live births, which is higher than the countrys average. That research further revealed that nearly half of expectant women in slums deliver either at home, with the assistance of traditional birth attendants or in unlicensed and unregulated health facilities that lack capacity to handle even minor obstetric complications.

Government statistics on the status of maternal health care present a narrower picture of the entirety. The data on antenatal care from the 2008-09 Kenya Demographic and Health Survey (KDHS) provide details on the type of service provider, the number of antenatal visits made, the stage of pregnancy at the time of the first and last visits, and the services and information provided during antenatal care, including whether tetanus toxoid was received. The results indicate that 92 per cent of women in Kenya receive antenatal care from a medical professional, either from doctors (29 per cent), or nurses and midwives (63 per cent). A very small fraction, (less than one per cent) receives antenatal care from traditional birth attendants, and 7 per cent do not receive any antenatal care at all. The 2008-09 data indicate a rise since 2003 in medical antenatal care coverage. Trends in use of antenatal care show that the proportion of women who had antenatal care from a trained medical provider for their most recent birth in the five years before the survey rose slightly, from 88 per cent in 2003 to 92 per cent in the current survey. Moreover, there has been a shift away from use of nurses and midwives (70 per cent in 2003 down to 63 per cent in 2008-09) towards doctors (18 per cent in 2003 and up to 29 per cent in 2008-09). In Kenya, less than half (47 per cent) of pregnant women make four or more antenatal visits. Sixty per cent of urban women make four or more antenatal care visits, compared with less than half of rural women (44 per cent). Moreover, most women do not receive antenatal care early in the pregnancy. Only 15 per cent of women obtain antenatal care in the first trimester of pregnancy, and only about half (52 per cent) receives care before the sixth month of pregnancy. Overall, the median number of months of pregnancy at first visit is 5.7. Comparing trends since the 2003 KDHS, the analysis shows a continuing decline in the proportion of women who make four or more antenatal visits, from 52 per cent in 2003 to 47 per cent in 2008-09. Two-thirds of women with a live birth in the last five years took iron tablets or syrup during the pregnancy of their most recent birth. In comparison, only 17 per cent took drugs for intestinal parasites. Women residing in urban areas and those with a higher level of education are more likely to take iron supplements than rural and less educated women. Among women who received antenatal care for their most recent birth in the five years before the survey, 43 per cent reported that they had been informed of the signs of pregnancy complications. Urban women and those with more education are more likely to be informed of signs of pregnancy complications than are rural and less educated women. Similarly, the likelihood of a woman being informed of signs of pregnancy complications declines as the birth order increases. Except in Nairobi and Central provinces, less than half of women have been informed of signs of pregnancy complications. Women in the highest wealth quintile are almost twice as likely to receive information on pregnancy complications as are those in the lowest quintile. Socioeconomic characteristics related to obtaining quality antenatal care include residence, level of education, and wealth. Women receiving antenatal care in urban areas are 17

more likely than rural women to receive all the specified components of antenatal care. Similarly, women with more education and those higher on the wealth index are more likely to receive more components of antenatal care than are less educated and poorer women. Forty-three per cent of births in Kenya are delivered in a health facility. Births to older women and births of higher order are more likely to occur at home. Similarly, mothers in rural areas are more than twice as likely to deliver at home compared with those in urban areas. The proportion of children born at home decreases as level of education and wealth quintile of the mother are on the rise for example, 84 per cent of children whose mothers have no education are born at home, compared with 27 per cent of those whose mothers have some secondary education. Similarly, children whose mothers had more antenatal care visits during the pregnancy are less likely to deliver at home. By comparison, a number of studies conducted by various organizations indicate that in nearly all informal settlements in urban areas in Kenya no public facilities, such as health care facilities, have been established. This void has resulted in many private providers setting up poor quality health care facilities lacking qualified personnel, equipment and supplies to offer adequate services to people living in these settlements. APHRCs research in two slums in Nairobi also demonstrates that most of those facilities, , lack the capacity in terms of qualified personnel, equipment and supplies to handle even minor obstetric complications. Subsequently, private healthcare providers located within the slums are not regulated by the government and many are illegal as they are not licensed. While eclampsia (pregnancy-induced hypertension) is a life-threatening condition, a mere 14.3 per cent of the health facilities were equipped to manage this complication at the time of the study. Hence, a functioning referral system, which is vital to save lives in time of emergencies, is lacking in most facilities. Moreover, APHRC research shows that about 10 per cent of births in slums are handled by traditional birth attendants (TBAs). These attendants lack skills to handle delivery and Kenyas National Reproductive Health Policy has made it illegal for them to practice obstetrics. The TBAs however feel that they are offering useful services especially to poor women who are unable to afford high hospital charges. The TBAs also argue that many women prefer them to nurses in public health facilities because the nurses can have bad attitudes and be abusive towards the women. The mere fact that TBAs continue to receive clients means that access to quality public health care, especially by the poor, is still a challenge. The Kenya Service Provision assessment Report-2011 indicates under the maternal care topic that only one-quarter of ANC facilities have all five essential supplies for basic ANC services (blood pressure apparatus, foetoscope, iron and folic acid tablets, and TT vaccine). Only one of every five ANC facilities has all medicines for managing common complications during pregnancy.

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3.0 TARGETED APPROACHES TO ACCELERATION PROGRESS AND MINIMIZE OPPORTUNITIES

Another driver category, for which there are important gaps, concerns the effect of a lack of accountability interventions, such as legal redress and patient charters on the incidence of disrespect in childbirth. An in-depth review of the literature on accountability mechanisms in middle and high income countries, such as patient charters and provider professional regulatory mechanisms (e.g. licensure maintenance protocols) might yield useful insights, although the generalizability of such mechanisms might be constrained by context specific health care, legal and political factors. In 2006, the government through the Ministry of Health institutionalized the Charter of Patients Rights, a policy measure to improve patient satisfaction.

3.1 Policy Level Harmonize and Strengthen policies and laws for improving sexual and reproductive health delivery Develop a national action plan immediately to accelerate progress towards achievement of MDG Target 5B (improve maternal heath care) within five years Engage government sectors and civil society to mobilize and promote political will for development of supportive policy and legislation Clarify the aspects within policy that require translation into law Disseminate information on the status of policies and laws pertaining to sexual and reproductive health, with a view to accelerating progress Introduce and implement targeted approaches to achieve universal access Ensure adequate financing of sexual and reproductive health care Track funding for sexual and reproductive health activities within national budgets Determine clear mechanisms for accountability and transparency Explore mechanisms such as conditional cash transfer, risk pooling and insurance for MDG Target 5B interventions Secure funds for effective service delivery and management of human resources Harmonize the national costing tools of sexual and reproductive health services Enhance the quality of services especially by ensuring the use of evidence-based recommendations and clinical guidelines Adapt and explore new avenues to scale up good practices Monitor and evaluate

3.2 Community Level

Strengthen and maintain valuable human resources (staff) 19

Review guidelines for integration into the curriculum Develop special programmes for managers to be trained in issues of supportive supervision Give attention to health workforce motivation Promote task shifting or task sharing according to available evidence Improve service delivery by managing and integrating services Develop and implement innovative community outreach programmes Innovate (communicate, adapt, implement new technologies), for example through introduction of new practices such as m-health (use of mobile phones for health) and new products for family planning including emergency contraception Monitor for successful implementation

20

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APPENDIX 1: POTENTIAL CONTRIBUTORS TO AND IMPACT OF DISRESPECT AND ABUSE IN CHILDBIRTH ON SKILLED CARE UTILIZATION
Individual and Community Normalization of disrespect and abuse during childbirth; lack of community engagement and oversight; financial barriers; lack of autonomy and empowerment

Lack of Financial Success

National Laws & Policies, Human Rights and Ethics Lack of human rights, ethics principles in national policies; lack of enforcement of national laws & policies; lack of legal redress mechanisms

Disrespect and Abuse in Child Birth: Non-Consented Care Physical Abuse Non-Dignified Care Discrimination Abandonment of Care Detention in Facilities Non-Confidential Care

Governance & Leadership Lack of leadership & governance for respect and non-abuse in childbirth Service Delivery Lack of standards and leadership/supervision for respect and non-abuse in childbirth; lack of accountability mechanisms at care site

Under utilization of Skilled Birth Care

Providers Provider prejudice; provider distancing as a result of training; provider demoralization related to weak health systems, shortages of human resources & poor professional development opportunities; provider status and respect.

Lack of Geographic Access Cultural Birth Preferences

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APPENDIX 2: INTERNATIONAL AND REGIONAL INSTRUMENTS AND THEIR RATIFICATION AND INCLUSION IN
DOMESTIC LAW Instrument
International Covenant on Economic, Social and Cultural Rights (1966)

Health Related Clauses

Article 12: Recognises the right of everyone to enjoy the highest attainable standard of physical and mental health. It requires states to: provide for the reduction of the stillbirth-rate and of infant mortality; and for the healthy development of the child; improve all aspects of environmental and industrial hygiene; prevent, treat and control epidemic, endemic, occupational and other diseases; and create conditions which would assure access to all medical service and medical attention in the event of sickness.

Kenya ratification and inclusion in domestic law

Ratified May 1972 The Children Act 2001 gives every child a right to health and medical care, which is the responsibility of parents and government (Section 9). Environmental Management and Coordination Act 1999 gives every Kenyan the right to a clean and healthy environment and a duty to safeguard and enhance the environment (Section 3). The Public Health Act Cap 242 empowers the minister to regulate to prevent spread of infectious diseases, by medical examination, detention, vaccination, isolation and medical surveillance (Section 71). Ratified March 1984 The Constitution prohibits discrimination of any nature (Art. 27).

Implication to disrespect and abuse

Socio-economic differentials in access to healthy environments in Kenya are a determinant of inequalities in health, with particular disadvantages for poor communities. Constrained by poverty (inability to access medical services and poor nutrition) exacerbates accessibility to medical services in the face of exposure to unhygienic situations.

Convention on the Elimination of All Forms of Discrimination against Women 1979

States shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning. Also states shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary as well as adequate nutrition during pregnancy and lactation .

Public authorities and institutions are expressly prohibited from treating any person in a discriminatory manner. The Kenya National Commission on Human Rights has been at the forefront in addressing subtle cases of discrimination reported to it through its human rights complaints. Human rights violations including physical and verbal abuse and detention in health facilities for inability to pay still exist.

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International Convention on the Elimination of all forms of Racial Discrimination

State parties undertake to prohibit and eliminate racial discrimination in all forms in the enjoyment of the right to public health, medical care, social security /services (Article 5).

1969

Ratified 1972 The Constitution prohibits discrimination of any nature (Art. 27) and further specifically provides under economic and social rights (Art.43 (1), the right to health care services, including reproductive health care.

The Convention on the Rights of the Child -1989

Recognises the right of the child to enjoy the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health (Article 24.1). It requires state parties to: strive to ensure that no child is deprived of his or her right to access to such health care services (Article 24.1); and take measures to combat disease and malnutrition, through provision of adequately nutritious foods and clean drinking-water (Article 24.2.c). Guarantees the right to the best attainable state of physical and mental health (Article 16) and requires state parties to take necessary measures to protect the health of their people and ensure they receive medical attention when they are sick (Article 16). Places restrictions on the enjoyment of certain rights in the interest of public health (Article 11 and Article 12(2)).

Ratified July 1986 The Children Act 2001 provides that every child has a right to health and medical care, which is the responsibility of both parents and government (Section 9). It imposes a responsibility on government and the family to ensure the survival and development of the child (Section 4), Art. 53 of the Constitution outlines almost all the rights relating to children.

Public authorities and institutions are expressly prohibited from treating any person in a discriminatory manner. The Kenya National Commission on Human Rights has been at the forefront in addressing subtle cases of discrimination reported to it through its human rights complaints. Human rights violations including physical and verbal abuse and detention in health facilities (increasing the already high cost of health) for inability to pay still exist. Women continue to hold second class status particularly in as far as economic empowerment is concerned and as a result continue to be unable to obtain access to social support and health. Insufficient funding for health has meant inadequate staffing and supply of equipment and medical supplies thereby adversely affecting service delivery and hence attainment of the rights under the convention and as a result high child mortality. Children below the age of 5 continue to remain at high risk. In Kenya child under one year mortality rate is 52:29 death/1000 lives births male, 55:03 deaths /1000 lives births, female 49:49 deaths/1000 live births by 2011 January estimates - CIA World Factbook.

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African Banjul Charter on Human and Peoples Rights

1986

Requires state parties to enact and implement laws to prohibit discrimination and harmful practices that endanger womens health (Article 2); respect womens right to health (Article 14(1)); provide adequate, affordable and accessible health services to women (Article 14 (2)); establish and strengthen pre-natal, delivery and post-natal health and nutrition services for pregnant and breast-feeding women (Article 66).

Programs have been implemented by the government that aims to improve the number of health facilities and thus make them more accessible. Art. 26 (4) of the Constitution provides the scope within which abortion is allowed.

Access to health facilities, particularly in rural areas remains limited at best. Even where the physical facilities may be in place they are far drawn and poorly equipped. As a result maternal mortality rates remain high.

Protocol to the African Charter on Human and Peoples Rights on the rights of Women in Africa 1985 .Adopted on 11th July 2003)

Requires member states to: protect womens reproductive rights by authorizing medical abortion in cases of sexual assault, rape and incest (Article 14(2)); take measures designed to protect human health against pollutants and waterborne diseases (Article 7); co-ordinate and harmonize general policies on health, sanitation and nutritional co-operation (Article 2(2) (e)); and work with international partners to eradicate preventable diseases and promote good health on the continent (Article 3). The Executive Council must also coordinate and take decisions on policies in areas of common interest to the member states, including health.

The ambiguity in the area as to when abortion can occur subsists. As a result specialized access to the service where and when needed remains skewed and deaths resulting from botched and unprofessional abortions continue with the numbers reaching alarming levels.

Millennium Development Goals (2000)

Adopt by world leaders in 2000 this goals are committed to reducing extreme poverty and setting out a series of time-bound targets amongst them- child Health(MDG4) and Maternal Health (MDG5) with a deadline of 2015. Goal 5 of the Millennium Development Goal targets to reduce by three quarters the maternal mortality rate between 1990 and 2015, MDG4 includes neonatal mortality aims at reducing the rate of infant mortality by 2/3 between 1995 and 2005.

Kenyas Vision 2030 goals is to reduce the infant and mortality rate

In Kenya, Vision 2030 requires government to lower infant and maternal mortality however recent health trends indicate that maternal mortality is still high especially in the rural areas where access to health services are still a challenge. The factors causing high mortality rates in Kenya include poverty, poor policy implementation, resource availability and service delivery challenges.

International Conference on Population and Development Cairo Egypt 1994)

About 179 countries agreed inter alia that empowering women and meeting people's needs for education and health, including reproductive health, are necessary for both individual advancement and balanced development. The conference adopted a 20-year Program of Action, which focused on providing universal education; reducing infant, child and maternal mortality; and ensuring

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universal access to reproductive health care including family planning by 2015, assisted childbirth and prevention of sexually transmitted infections including HIV/AIDS. The fundamentals for population and development policies were identified as advancing gender equality, eliminating violence against women and ensuring women's ability to control their own fertility. Maputo Plan of Action (2004) (Plan of Action on Reproductive and Sexual Health Rights) The framework on sexual and Reproductive Health Rights addresses the reproductive health and rights challenges faced by Africa and calls for strengthening the health sector by increasing resource allocation for health, and to improve access to services. The framework advocates for mainstreaming of gender issues into socio economic development programs and SHR commodity in Kenya. They Include the following objectives: 1. 2. 3. 4. 5. 6. 7. 8. 9. HIV/STI, Malaria and SHR services integrated into primary health care. Strengthened community-based STI/HIV and SRHR services. FP repositioned as key strategy for attainment of MDGs. Youth friendly SRHR services positioned as a key strategy for youth empowerment development and wellbeing. Increased effort to reduce unsafe abortion Increased access to quality maternal and child services. Resources for SRHR increased SRH commodity security strategies for all SRH components enhanced A monitoring, evaluation and coordination mechanism for the Plan of the Plan of Action established

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Abuja declaration (2000)

Based on an earlier commitment The Harare Prevention and control, the Abuja declaration:

Declaration on malaria

Is committed towards halving the malaria mortality for Africas people by 2010 through implementing the strategies and actions. Initiates actions at regional level to ensure implementation, monitoring and management of Roll Back Malaria. Initiates actions at the national level to provide resources to facilitate realization of Roll Back Malaria Objectives. Promotes working with partners in malaria affected countries towards stated targets, ensuring the allocation of necessary resources from private and public sectors and from non-governmental organizations. Creates an enabling environment in our countries which will permit increased participation of international partners in our malaria control actions.

The Children Act 2001 gives every child a right to health and medical care, which is the responsibility of parents and government (Section 9). Environmental Management and Coordination Act 1999 gives every Kenyan the right to a clean and healthy environment and a duty to safeguard and enhance the environment (Section 3). The Public Health Act Cap 242 empowers the minister to regulate, prevent spread of infectious diseases, by medical examination, detention, vaccination, isolation and medical surveillance (Section 71). Kenyas Vision 2030 sets goals to reduce the infant and mortality rate.

Road map for reduction of maternal and neonatal mortality 2004 ratified by AU.

Ratified by AU

Adoption of the National Maternal and Newborn Health (MNH) towards implementation of the Road map adopted by the Au.

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