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Examining High Rates of Preventable Maternal Mortality in Kenya: Could Provisional Measures be an Effective Tool to Guarantee Safe Pregnancy?

Published online by Cambridge University Press:  28 June 2017

Clara Burbano-Herrera
Clara Burbano-Herrera*
Affiliation:
Human Rights Centre, Ghent University
*
[email protected]
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Abstract

This article analyses the barriers that expectant mothers face in accessing appropriate, quality medical services in Kenya, and investigates the potential for the regional African human rights adjudicator to use provisional measures (PMs) to protect expectant mothers. The article aims to explore whether PMs adopted by the African Commission on Human and Peoples’ Rights could be an appropriate legal tool to secure protection for expectant mothers who are dealing with obstacles in obtaining the medical services that they need. In that regard, this contribution suggests that the situation of certain expectant mothers in Kenya meets the two necessary conditions to grant PMs under the African Human Rights system: that the situation is urgent and the measures are necessary to prevent irreparable damage. It suggests that, following the tendency of other international human rights bodies, the Commission has the potential to play a relevant role in the context of maternal mortality.

Keywords

Maternal mortalityprovisional measuresAfrican Commission on Human and Peoples’ Rightssexual and reproductive health rightswomen's rights
Type
Research Articles
Information
Journal of African Law , Volume 61 , Issue 2 , June 2017 , pp. 197 - 225
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Copyright
Copyright © SOAS, University of London 2017 

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Footnotes

*

Postdoctoral research fellow, Faculty of Law, Human Rights Centre, Ghent University, Belgium and affiliated postdoctoral research fellow, Centre on Law and Social Transformation, University of Bergen, Norway. The author would like to thank Prof Alicia Yamin of Harvard University for her valuable comments on this article. The author wrote this contribution as a research fellow at Harvard University, with the financial support of a Fulbright grant.

References

1 Transcript of an interview with a medical student at Pumwani Maternity Hospital, Nairobi (25 May 2015) (on file with the author).

2 Maternal mortality is commonly understood as “the death of a woman while pregnant or within 42 days of termination of pregnancy, irrespective of the duration and site of the pregnancy and its mode of termination, from any cause related to or aggravated by the pregnancy or its management but not from accidental or incidental causes”: World Health Organization (WHO) “International Classification of diseases” (10th rev, 2004), available at: <http://www.who.int/classifications/icd/en/> (last accessed 8 May 2017).

3 In 1990, Kenya had an MMR of 687 deaths per 100,000 live births and this declined to 510 in 2015. Globally, MMR fell by 43.9% during the same period: from 385 deaths per 100,000 live births in 1990 to 216 in 2015. There were 303,000 maternal deaths worldwide in 2015. See WHO et al “Trends in maternal mortality: 1990 to 2015: Estimates by WHO, UNICEF, UNFPA, World Bank Group and the United Nations Population Division” (2015), available at: <http://www.who.int/reproductivehealth/publications/monitoring/maternal-mortality-2015/en/> (last accessed 8 May 2017) and L Alkema et al “Global, regional, and national levels and trends in maternal mortality between 1990 and 2015, with scenario-based projections to 2030: A systematic analysis by the UN Maternal Mortality Estimation Inter-Agency Group” (2015), available at: <http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(15)00838-7/abstract> (last accessed 8 May 2017).

4 See World Bank Report (2015), available at: <http://databank.worldbank.org/data/Views/Reports/ReportWidgetCustom.aspx?Report_Name=HNP-MDG-5-Birth-attended-by-skilled-health-staff&Id=c2358f5f48&inf=n&zm=n> (last accessed 28 May 2017) and <http://databank.worldbank.org/data/Views/Reports/ReportWidgetCustom.aspx?Report_Name=HNP-MDG-5-Birth-attended-by-skilled-health-staff&Id=c2358f5f48&inf=n&zm=n> (last accessed 8 May 2017). See also Kenyan Ministry of Health “Policy proposal on the presidents’ [sic] initiative on free maternal health services in Kenya”, available at: <http://www.healthpolicyproject.com/ns/docs/kenyanewsfreematernalhealthattachment.pdf> (last accessed 8 May 2017) and N Bourbonnais “Implementing free maternal health care in Kenya: Challenges, strategies, and recommendations” (2013, Kenya National Commission on Human Rights) at 3, available at: <http://www.knchr.org/Portals/0/EcosocReports/Implementing%20Free%20Maternal%20Health%20Care%20in%20Kenya.pdf> (last accessed 28 May 2017).

5 See WHO et al (2015) “Maternal mortality in 1990–2015: Kenya”, available at: <http://www.who.int/gho/maternal_health/countries/ken.pdf> (last accessed 8 May 2017).

6 See WHO Media Centre “Maternal mortality” (fact sheet, November 2016), available at: <http://www.who.int/mediacentre/factsheets/fs348/en/> (last accessed 29 May 2017).

7 See ibid. A major challenge in addressing maternal deaths is the lack of accurate data. Although information on the numbers of women dying and the reasons for their deaths is improving, much remains unrecorded and unreported. Indeed, in many low-income countries, maternal deaths often go uncounted as the cause of death is unknown or incorrectly recorded, particularly when women die at home. See WHO et al “Trends in maternal mortality: 1990 to 2013: Estimates by WHO, UNICEF, UNFPA, World Bank Group and the United Nations Population Division” (2014) at 1, available at: <http://apps.who.int/iris/bitstream/10665/112682/2/9789241507226_eng.pdf> (last accessed 8 May 2017); L Say, D Chou, A Gemmill et al “Global causes of maternal death: A WHO systematic analysis” (2014) 2/6 The Lancet Global Health, available at: < http://www.thelancet.com/journals/langlo/article/PIIS2214-109X(14)70227-X/fulltext> (last accessed 8 May 2017); and WHO Media Centre “Maternal mortality”, above at note 6

8 The measures adopted by the African Commission and African Court on Human and Peoples’ Rights (Court) are called “provisional measures”. See art 27(2) of the Court Protocol, rule 51 of the Rules of Court and rule 98 of the 2010 Commission Rules of Procedure.

9 The measures adopted by the European Court of Human Rights are called “interim measures” in English, or mesures provisoires [provisional measures] in French; see rule 39 of the Rules of Court. The measures adopted by the Inter-American Commission on Human Rights are called “precautionary measures” and the measures adopted by the Inter-American Court of Human Rights (IACtHR) are called “provisional measures”; see American Convention on Human Rights, art 63(2) and Rules of Procedure of the IACtHR, art 25. For simplicity, this article refers to these various tools collectively as “provisional measures” or PMs.

10 Commission Rules of Procedure, rule 98. See also below at note 14.

11 The African Charter was adopted in Nairobi (Kenya) on 27 June 1981 and entered into force on 21 October 1986.

12 For more information on PMs, see Burbano-Herrera, C and Viljoen, F “Provisional measures issued by the African Commission and African Court on Human and Peoples’ Rights” in Haeck, Y and Burbano-Herrera, C (eds) Interim Measures in International Human Rights Law (forthcoming, 2017, Oxford University Press)Google Scholar; Viljoen, F International Human Rights Law in Africa (2012, Oxford University Press) at 306CrossRefGoogle Scholar; Rieter, E Preventing Irreparable Harm: Provisional Measures in International Human Rights Adjudication (2010, Intersentia)Google Scholar; and Naldi, GJ “Interim measures of protection in the African system for the protection of human and peoples’ rights” (2002) 2 African Human Rights Law Journal 1 Google Scholar.

13 The Institute for Human Rights and Development in Africa, a Banjul-based NGO, publishes the Commission's and Court's decisions regarding PMs at: <http://caselaw.ihrda.org> (last accessed 8 May 2017). The Centre for Human Rights of the University of Pretoria also publishes decisions on PMs on its website: <http://www.chr.up.ac.za/index.php/browse-by-subject/538-interimprovisional-measures.html> (last accessed 8 May 2017).

14 The Commission included powers to adopt PMs in 1988 in its first set of Rules of Procedure (rule 109). When these were amended in 1995, the Commission outlined its competence to adopt PMs in rule 111. Since 2010, information on these powers has been restated in rule 98. See Burbano-Herrera and Viljoen “Provisional measures”, above at note 12.

15 Comms 140/94, 141/94 and 145/95 Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria, paras 2 and 49; and appln 2/2013 African Commission (in respect of Saif Al-Islam Gaddafi) v Libya (Gaddafi's Son Provisional Measures).

16 Comm 334/06 Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt.

17 Comms 137/94, 139/94, 154/96 and 161/97 International Pen, Constitutional Rights Project, Interights (in respect of Ken Saro-Wiwa Jr and Civil Liberties Organisation) v Nigeria; Constitutional Rights Project v Nigeria, above at note 15; and Gaddafi's Son Provisional Measures, above at note 15, para 15.

18 Comm 133/94 Association pour la Défense des Droits de l'Homme et des Libertés v Djibouti (2000) AHRLR 80 (ACHPR 2000); and appln 6/2012 African Commission (in respect of the Ogiek Community of the Mau Forest) v Kenya.

19 African Charter, art 17.

20 Id, art 16.

21 Id, art 22.

22 In comms 140/94, 141/94 and 145/95, above at note 15, the Commission ordered the state to ensure the victims’ health was not endangered.

23 The Rules, rule 98(1). The Commission will consider a communication where it meets the conditions outlined in art 56 of the African Charter, that it: “(1) Indicates its author(s) even if the latter request(s) anonymity; (2) Is compatible with the Charter of the Organisation of African Unity or with the present Charter; (3) Is not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organisation of African Unity; (4) Is not based exclusively on news disseminated through the mass media; (5) After exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged; (6) Is submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized with the matter; and (7) Does not deal with cases which have been settled by those States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organisation of African Unity or the provisions of the present Charter”.

24 This point is addressed in more detail in the section below on “Applying theory to practice”.

25 The Commission has had powers to adopt PMs since 1988, but did not exercise them until 1993. According to available data, 22 out of 28 PM requests were granted between 1 January 1993 and mid-2014.

26 See comm 83/92 Jean Yakovi Degli v Togo; two decisions in Saro-Wiwa, above at note 17; Constitutional Rights Project v Nigeria, above at note 15; comm 212/98 Amnesty International v Zambia (2000) AHRLR 325 (ACHPR 1999); la Défense des Droits de l'Homme v Djibouti, above at note 18; comm 290/2004 Open Society Justice Initiative (in respect of Njawe Noumeni) v Cameroon (2006) AHRLR 75 (ACHPR 2006); comm 284/03 Zimbabwe Lawyers for Human Rights and Associated Newspapers of Zimbabwe v Republic of Zimbabwe; Egyptian Initiative for Personal Rights, above at note 16; comm 402/11 Kordofan Provisional Measures v Sudan; comm 413/12 Centre for Human Rights, University of Pretoria (in respect of David Mendes) v Angola; comm 430/2012 Gabriel Shumba and Others (Represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe; Gaddafi's Son Provisional Measures, above at note 15; Ogiek of Mau Forest, above at note 18; comm 239/2001 Interights (in respect of Sikunda) v Namibia (2002) AHRLR 21 (ACHPR 2002); comm 256/2002 Woods and Another v Liberia (2003) AHRLR 125 (ACHPR 2003); comm 250/2002 Zegveld and Another v Eritrea (2003) AHRLR 84 (ACHPR 2003); comm 258/2002 Miss A v Cameroon (2004) AHRLR 39 (ACHPR 2004); comm 269/03 Interights (in respect of Safia Yakubu Husaini et al) v Nigeria; comm 231/99 Avocats Sans Frontières (in respect of Bwampamye) v Burundi (2000) AHRLR 48 (ACHPR 2000); comm 260/02 Bakweri Land Claims Committee v Cameroon (2004) AHRLR 43 (ACHPR 2004); and comm 276/03 Centre for Minority Rights Development (Kenya) and Minority Rights Group (in respect of Endorois Welfare Council) v Kenya. The last 11 PMs were adopted between May 2014 and April 2015.

27 C Burbano Herrera and F Viljoen “Danger and fear in prison: Protecting the most vulnerable persons in Africa and the Americas by regional human rights bodies through interim measures” (2015) Netherlands Quarterly of Human Rights 163 at 163.

28 The beneficiary was a nursing mother from Nigeria who was sentenced to death by stoning by a Sharia court for the alleged crime of adultery. See Safia Yakubu Husaini, above at note 26.

29 The AU is an international organization that, after South Sudan's accession in 2011, consists of 54 African states. The only African country that is not an AU member is Morocco, which withdrew in 1984 after the AU recognized Western Sahara as a sovereign state.

30 By 1999, the African Charter had been ratified by all states that were then AU members.

31 Saro-Wiwa, above at note 17, para 103.

32 See, for example, Committee Against Torture (CAT Committee) “Concluding observations: Peru”, UN doc CAT/C/PER/CO/5–6 (2013), para 15; CAT Committee “Concluding observations: Paraguay”, UN doc CAT/C/PRY/CO/4-6 (2011), para 22; CEDAW Committee, comm 17/2008 Alyne da Silva Pimentel Teixeira v Brazil, UN doc CEDAW/C/49/D/17/2008 (2011), paras 7.5–7.6, available at: <http://www.ohchr.org/Documents/HRBodies/CEDAW/Jurisprudence/CEDAW-C-49-D-17-2008_en.pdf> (last accessed 8 May 2017); CAT Committee “Concluding observations: Brazil”, UN doc E/C.12/BRA/CO/2 (2009), paras 28–29; Human Rights Committee “Concluding observations: Mali”, UN doc CCPR/CO/77/MLI (2003), para 14; Human Rights Committee “Concluding observations: Mongolia”, UN doc CCPR/C/79/Add.120 (2000), para 8(b); Human Rights Committee “Concluding observations: Peru”, UN doc CCPR/CO/70/PER(2000), para 20; Human Rights Committee “Concluding observations: Trinidad and Tobago”, UN doc CCPR/CO/70/TTO (2000), para 18; CEDAW Committee “Concluding comments: Belize”, UN doc A/54/38/Rev1 (1999), para 56.

33 The treaty bodies have also indicated that elevated rates of maternal mortality are related to abortion laws and unsafe or illegal abortion. See Human Rights Committee “Concluding observations: Chile”, UN doc CCPR/C/CHL/CO/6 (2014), para 15; Human Rights Committee “Concluding observations: Panama”, UN doc CCPR/C/PAN/CO/3 (2008), para 9; CEDAW Committee “Concluding observations: Paraguay”, UN doc CCPR/C/PRY/CO/3 (2013), para 13; CEDAW Committee “Concluding observations: Eritrea”, UN doc CEDAW/C/ERI/CO/3 (2006), para 22; CEDAW Committee “Concluding observations: Guatemala”, UN doc CCPR/C/GTM/CO/3 (2012), para 20.

34 CEDAW Committee “Concluding observations: Mexico”, UN doc CEDAW/C/MEX/CO/7-8 (2012), paras 30–31.

35 CRC Committee “Concluding observations: Nicaragua”, UN doc CRC/C/NIC/CO/4 (2010), paras 64–65.

36 HR Committee “Concluding observations: Argentina”, UN doc CCPR/CO/70/ARG (2000), para 14.

37 ESCR Committee “Concluding observations: Brazil”, UN doc E/C.12/BRA/CO/2 (2009), para 28.

38 The HR Committee monitors state compliance with the International Covenant on Civil and Political Rights.

39 HR Committee “General comment no 6, art 6 (right to life)” (16th session, 1982) in “Compilation of general comments and general recommendations adopted by human rights treaty bodies”, UN doc HRI/GEN/1/Rev1 at 6 (1994), para 5, available at: <http://www1.umn.edu/humanrts/gencomm/hrcom6.htm> (last accessed 8 May 2017).

40 HR Committee “General comment no 28: Equality of rights between men and women” (68th session, 2000) in “Compilation of general comments and general recommendations adopted by human rights treaty bodies”, UN doc HRI/GEN/1Rev9 (vol 1) (2008) at 229, para 10, available at: <http://www1.umn.edu/humanrts/gencomm/hrcom28.htm> (last accessed 8 May 2017).

41 The CEDAW Committee monitors state compliance with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). See CEDAW Committee “General comment no 24: Art 12 of the Convention (women and health)” (20th session, 1999) in “Compilation of general comments”, id (vol 11) at 365, para 31(c).

42 The CRC Committee monitors state compliance with the Convention on the Rights of the Child.

43 See CEDAW Committee “Concluding comments: Belize”, UN doc A/54/38/Rev1 (1999), para 56: “the Committee notes that the level of maternal mortality due to clandestine abortions may indicate that the Government does not fully implement its obligations to respect the right to life of its women citizens.” HR Committee “Concluding observations: Mali”, UN doc CCPR/CO/77/MLI (2003), para 14: “So as to guarantee the right to life, the State should strengthen its efforts in ensuring the accessibility of health services, including emergency obstetric care.” CRC Committee “Concluding observations: Democratic Republic of Congo”, UN doc CRC/C/COD/CO/2 (2009), paras 33–34.

44 See text below at notes 99 and 101 to 109.

45 The CEDAW Committee requires that states ensure that women have access to appropriate services in connection with pregnancy, childbirth and the postnatal period, including family planning and emergency obstetric care. See Alyne da Silva, above at note 32, paras 7.6 and 7.7.

46 Id, para 7.6. Even when governments outsource health services to private institutions, the committee ruled that states remain responsible for the actions of these contractors and have a duty to regulate and monitor private health centres.

47 CEDAW, art 12(2). See also Cook, RJ “Human rights and maternal health: Exploring the effectiveness of the Alyne decision” (2013) 41 Global Health and the Law 103 at 103Google ScholarPubMed.

48 American Convention on Human Rights, art 4(1).

49 Id, art 1(1).

50 Xakmok Kasek Indigenous Community v Paraguay IACtHR (24 August 2010), merits, reparations and costs judgment, paras 2, 214, 217, 232, 234, 275, 301, 303 and 306.

51 The decision regarding Remigia's death was part of a petition on indigenous land. The court ruled that the government's failure to guarantee the property rights of the Xakmok Kasek indigenous people over their ancestral territory served to keep this community in a vulnerable state regarding its health and welfare. See id, paras 214, 232, and 273.

52 Indian Constitution, art 21.

53 Laxmi Mandal v Deen Dayal Harinagar Hospital & Others WP (C) Nos 8853/2008 High Court of Delhi (4 June 2010), paras 40, 42, 51 and 53.

54 High Court of Uganda, civil suit no 111 of 2012 (30 April 2015) at 12.

55 Alicia Yamin has carried out extended research on this issue. See, for example, the panel discussion “Women's lives matter: The impact of maternal death on families & communities” (7 October 2014), available at: <http://fxb.harvard.edu/womens-lives-matter/> (last accessed 12 May 2017).

56 In the Inter-American system, authorization to request the adoption of PMs is governed by the American Convention and the Rules of Procedure of the Inter-American Court and Commission. The specific provisions are outlined in art 63(2) of the convention, art 26(1)(2)(3) of the rules of the court and art 74(1) of the rules of the commission.

57 Nicaraguan Penal Code, art 16.

58 IACHR, MC 43-10, Amelia v Nicaragua, 26 February 2010.

59 IACtHR, PM, B v El Salvador, 19 August 2013.

60 Salvadorian Penal Code, arts 133–37.

61 The Commission has adopted various instruments of relevance to this topic, including the Guidelines on Economic, Social and Cultural Rights in the African Charter (2005), the Resolution on Maternal Mortality (2008), the Resolution on the Health and Reproductive Rights of Women (2007), the Resolution on the Status of Women in Africa (2005) and the Resolution on the Situation of Women and Children in Africa (2004).

62 The African Charter, arts 4, 16 and 2 respectively. Viljoen, F “An introduction to the Protocol to the African Charter on Human Rights and Peoples’ Rights on the Rights of Women in Africa” (2009) 16 Washington and Lee Journal of Civil Rights and Social Justice 11 at 19Google Scholar.

63 Maputo Protocol, art 14. The scope of the charter has been extended by the adoption of the Maputo Protocol, over which the Commission and Court also have jurisdiction, including powers to issue PMs. It was ratified by Kenya on 8 October 2010. Kenya entered a reservation on art 14(2)(c) disallowing legal abortion in cases of rape and defilement and where the life and health of the mother and foetus are in danger. This is inconsistent with art 26(4) of the 2010 Kenyan Constitution.

64 The African Commission published “General comment no 2 on art 14.1(a)(b)(c) and (f) and art 14.2(a) and (c) of the Maputo Protocol”, available at: <http://www.achpr.org/instruments/general-comment-two-rights-women/> (last accessed 8 May 2017).

65 The African Charter on the Rights and Welfare of the Child was adopted in Addis Ababa, Ethiopia on 11 July 1990 and entered into force on 29 November 1999. The African Children's Committee is its supervisory body. By ratifying this charter, states automatically accept the jurisdiction of the African Children's Committee to “receive” individual and inter-state communications. See Organisation of African Unity doc CAB/LEG/24.9/49 (1990), arts 32, 43 and 44. However, this body has not explicitly been granted competence to adopt PMs. Kenya ratified the charter on 25 July 2000 and it is available at: <http://www1.umn.edu/humanrts/africa/afchild.htm> (last accessed 8 May 2017).

66 African Charter on the Rights and Welfare of the Child, article 14(1).

67 Id, art 14(2)(e).

68 Kenya has not ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, which was adopted on 18 December 1990, or the International Convention for the Protection of all Persons from Enforced Disappearance, which was adopted on 20 December 2006.

69 State reporting is a mandatory requirement for the nine core UN human rights treaties. Each of these requires states to submit initial reports to be followed by periodic updates indicating what measures they have taken to implement the rights enshrined in the treaties. See also UN “Manual on human rights reporting” (1997).

70 Adopted on 21 December 1965, entered into force on 4 January 1969, ratified by Kenya on 13 September 2001.

71 Adopted on 16 December 1966, entered into force on 23 March 1976, ratified by Kenya on 1 May 1972.

72 Adopted on 16 December 1966, entered into force on 3 January 1976, ratified by Kenya on 1 May 1972.

73 Adopted on 18 December 1979, entered into force on 3 December 1981, ratified by Kenya on 8 April 1984.

74 Adopted on 10 December 1984, entered into force on 26 June 1987, ratified by Kenya on 21 February 1997.

75 Adopted on 20 November 1989, entered into force on 2 September 1990, ratified by Kenya on 26 June 1990.

76 Adopted on 13 December 2006, entered into force on 3 May 2008, ratified by Kenya on 19 May 2008.

77 Constitution, art 2(6).

78 The Constitution relaxed the stringency of Kenya's abortion laws. Previously, the penal code criminalized any attempt to procure an abortion from a third party (art 158), any attempt by a pregnant woman to perform an abortion on herself (art 159) and the supply of drugs for the purposes of an abortion (art 160). These offences carried heavy penalties of 14, seven and three years in prison, respectively.

79 Id, art 43(2).

80 Id, art 43(3).

81 Id, arts 53 and 56.

82 Id, art 28.

83 KNCHR was first established as a statutory body in 2003 pursuant to the KNCHR Act (No 9) of 2002. In August 2011, KNCHR was reconstituted as a constitutional commission by art 59(4) of the Constitution. The act outlines the Commission's mandate, including its powers to conduct investigations into any complaints of human rights violations in the country.

84 NGEC was established by an act of Parliament in August 2011, as a successor to the Kenya National Human Rights and Equality Commission and pursuant to art 59 of the Constitution. NGEC's objectives are to promote gender equality and freedom from discrimination.

85 In September 2009, the Federation of Women Lawyers, Kenya (FIDA) and the Centre for Reproductive Rights, USA (CRR) submitted a complaint to KNCHR alleging violations of women's reproductive rights in Kenyan health facilities, specifically the Pumwani Maternity Hospital. The complaint was based on the findings of a joint study conducted between November 2006 and May 2007 that included findings from a sample of women, healthcare providers, hospital administrators, leaders of medical associations, and licensing and regulatory officials. The report “Failure to deliver” found that the Kenyan state was responsible for numerous, severe violations of reproductive rights: FIDA and CRR “Failure to deliver” (2009), available at: <http://reproductiverights.org/sites/default/files/documents/pub_bo_failuretodeliver.pdf> (last accessed 8 May 2017).

86 KNCHR “Realizing sexual and reproductive health rights in Kenya: A myth or reality?” (2012), available at: <http://www.knchr.org/portals/0/reports/reproductive_health_report.pdf> (last accessed 8 May 2017).

87 Republic of Kenya “National road map for accelerating the attainment of MDGs related to maternal and newborn health in Kenya” (August 2010), available at: <https:// www.k4health.org/sites/default/files/Roadmap%20to%20Maternal%20and%20Newborn%20Health%20Booklet.pdf> (last accessed 8 May 2017).

88 Republic of Kenya Ministry of Public Health and Sanitation, Ministry of Medical Services “National reproductive health strategy: 2009–2015”, available at: <https:// www.k4health.org/sites/default/files/National%20RH%20Strategy_0.pdf> (last accessed 8 May 2017).

89 Republic of Kenya “Health Policy (2012–30)”, available at: <http://hennet.or.ke/wp-content/uploads/2015/02/KENYA_HEALTH_POLICY_29-01-2014.pdf> (last accessed 28 May 2017).

90 Further information on the campaign can be found at: <http://www.beyondzero.or.ke/> (last accessed 8 May 2017).

91 Martin, H and Imphidzai, O Education and Health Services in Kenya: Data for Results and Accountability, Service Delivery Indicators: Education / Health (2013, International Bank for Reconstruction and Development / The World Bank) at 2–4Google Scholar; see also Bourbonnais “Implementing free maternal health care”, above at note 4 at 8.

92 KNCHR “Realizing sexual and reproductive health rights”, above at note 86 at 48 and 49.

93 Bourbonnais “Implementing free maternal health care”, above at note 4 at 6 and 7; M Wasamu “We need accountability, not money, to fix the health sector” (31 July 2013) The Star, available at: <http://www.the-star.co.ke/news/2013/07/31/we-need-accountability-not-money-to-fix-the-health-sector_c809515> (last accessed 8 May 2017); and A Jamah “Free maternity services in Kenya could endanger mothers’ lives, experts warn” (18 July 2013) Standard, available at: <https://www.standardmedia.co.ke/health/article/2000088679/why-free-maternity-services-could-endanger-mothers-lives> (last accessed 8 May 2017).

94 KNCHR “Realizing sexual and reproductive health rights”, above at note 86; See also Kenyan Ministry of Health “Policy proposal”, above at note 4.

95 The CEDAW Committee and the ESCR Committee. See also below at notes 99, 101 and 106.

96 World Bank Report (2015), above at note 4.

97 See above at note 85.

98 See KNCHR “Realizing sexual and reproductive health rights”, above at note 86.

99 CEDAW Committee “Concluding comments: Kenya” (39th session, 23 July–10 August 2007), para 37, CEDAW/C/KEN/CO/6, available at: <http://www.refworld.org/docid/46d280ff6.html> (last accessed 8 May 2017).

100 Id, para 38.

101 CEDAW Committee “Concluding observations: Kenya” (48th session, 17 January – 4 February 2011), paras 37–38, CEDAW/C/KEN/CO/7, available at: <http://www2.ohchr.org/english/bodies/cedaw/docs/co/CEDAW-C-KEN-CO-7.pdf> (last accessed 8 May 2017).

102 See text above at notes 44 and 46.

103 The ESCR Committee monitors state compliance with the International Covenant on Economic, Social and Cultural Rights (ICESCR). An important landmark in defining the right to health was its adoption of general comment no 14, outlining the framework of the “highest attainable standard of health” in art 12 of the ICESCR. This instrument holds that the right to health requires sufficient health facilities and trained health professionals to be made available. See Bourbonnais “Implementing free maternal health care”, above at note 4 at 4.

104 Core obligations are the minimum essential level of each right that states must meet immediately.

105 ESCR Committee “General comment no 14: The right to the highest attainable standard of health (art 12)” (22nd session, 2000), in “Compilation of general comments and general recommendations adopted by human rights treaty bodies”, UN doc HRI/GEN/1/Rev9 (vol 1) (2008) at 80, para 12, 81, para 14 and 83, para 21.

106 CESCR Committee “Consideration of reports submitted by states parties under arts 16 and 17 of the covenant: Concluding observations: Kenya” (41st session, 3–21 November 2008), E/C.12/KEN/CO/1, available at: <http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=4slQ6QSmlBEDzFEovLCuW2MbmIr6bjcj69OB9bDJS0h6wnzTN86b8rPdVp2riZPw4cBjzaTfLoZp3OAnmL1knuEha0fsDxAF2IbbocyN%2f6SjUE%2bEHqLvoKUmHEW2xPDU> (last accessed 8 May 2017).

107 Ibid.

108 The CAT Committee oversees state compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

109 CAT Committee “Concluding observations: Paraguay”, UN doc CAT/C/PRY/CO/4–6 (2011), para 22; CAT Committee “Concluding observations: Peru”, UN doc CAT/C/PER/CO/5–6 (2013), para 15.

110 “Speech by HE Hon Uhuru Kenyatta, CGH, president and commander-in-chief of the defence forces of the Republic of Kenya during the Madaraka Day celebrations” (Nyayo National Stadium, 1 June 2013), available at: <https:// www.scribd.com/document/145055942/President-Uhuru-Kenyatta-s-Madaraka-Day-Speech> (last accessed 8 May 2017).

111 Bourbonnais “Implementing free maternal health care”, above at note 4 at 6–7.

112 Id at 6, referring to Jamah “Free maternity services”, above at note 93.

113 M Waimiru “Despite newly free deliveries in Kenya, some mothers opt for traditional birth attendants” (23 July 2013) Global Press Journal, available at: <https://globalpressjournal.com/africa/kenya/despite-newly-free-deliveries-in-kenya-some-mothers-opt-for-traditional-birth-attendants/> (last accessed 28 May 2017). See also Bourbonnais, id at 3.

114 Bourbonnais, id at 6.

115 More than 2,000 nurses at the Kenyatta National Hospital went on strike to demand that the authorities introduce a promised 46% increment in their basic pay that had been awarded by the High Court in September 2012. See id at 8.

116 Under the new Constitution, responsibility for primary healthcare, including the financing and management of health facilities, falls on county governments; see Constitution, art 186. See also “2,000 doctors have quit public service” (15 March 2015) Daily Nation, available at: <http://www.nation.co.ke/news/2000-doctors-have-quit-public-service/-/1056/2654670/-/gnbwgj/-/index.html> (last accessed 8 May 2017).

117 See UNAIDS “Abuja +12: Shaping the future of health in Africa” (2013), available at: <http://www.unaids.org/sites/default/files/media_asset/JC2524_Abuja_report_en_0.pdf> (last accessed 8 May 2017).

118 Institute of Economic Affairs “Kenya budget 2014/2015: Balancing financing concerns while responding to spending inefficiencies” (2014) at 13.

119 While in Nairobi, the author also conducted interviews with staff of the Kenyan Legal and Ethical Issues Network on HIV and AIDS, KNCHR, NGEC and FIDA.

120 W Kigan “Socio-cultural factors influencing nutritional status among women attending Pumwani Maternity Hospital” (2010), available at: <http://erepository.uonbi.ac.ke/handle/11295/4078> (last accessed 8 May 2017). See also M Kimani “Investing in the health of Africa's mothers” (January 2008) African Renewal, available at: <http://www.un.org/africarenewal/magazine/january-2008/investing-health-africa%E2%80%99s-mothers> (last accessed 8 May 2017); Center for Strategic and International Studies “Studying Kenya's largest maternity hospital” (10 August 2009), available at: <http://www.smartglobalhealth.org/blog/entry/studying-kenyas-largest-maternity-hospital/> (last accessed 8 May 2017); and Bourbonnais “Implementing free maternal health care”, above at note 4 at 168.

121 See interview with Pumwani Hospital's chief executive officer, Fridah Govedi, in 2011 in “Nurses’ go-slow highlights ills at maternity hospital” (18 March 2011) IRIN, available at: <http://www.irinnews.org/report/92229/kenya-nurses-go-slow-highlights-ills-at-maternity-hospital> (last accessed 8 May 2017). In 2014, the online newspaper All Africa mentioned that the hospital was delivering 80 babies per day: J Mwambai “Kenya: First lady donates eight incubators to Pumwani Maternity Hospital” (2 September 2014) All Africa, available at: <http://allafrica.com/stories/201409030225.html> (last accessed 8 May 2017).

122 KNCHR “Realizing sexual and reproductive health rights”, above at note 86 at 168.

123 Bourbonnais “Implementing free maternal health care”, above at note 4.

124 See above at notes 85 and 86.

125 Several news articles on this topic are available online, for example E Opondo “Address maternal health violations” (26 January 2017) Standard Digital, available at: <https://www.standardmedia.co.ke/article/2000231237/address-maternal-health-violations> (last accessed 28 May 2017).

126 See above under “Context of Kenyan health facilities”.

127 The Commission can request protection for unidentified individuals. In these cases, the beneficiaries are not named and the Commission does not normally know exactly who or even how many there are. Instead, the Commission identifies them by objective elements and can work out where they are broadly located in order to offer the required protection. See text above at note 18.

128 African Charter, arts 4, 16, 2 and 3 respectively.

129 Maputo Protocol, art 14.

130 Commission Rules of Procedure, rule 98(1).

131 See note 23 above.

132 Comms 25/89, 47/90, 56/91, 100/93 World Organization against Torture and Others v Zaire (Zaire Mass Violations) (9th annual activity report), para 36; comm 71/92 Rencontre Africaine pour la Défense des Droits de l'Homme v Zambia (Zambia Expulsion) (10th annual activity report), para 11.

133 The rule and the exception are also included in the Commission's Rules of Procedure, rule 93(2)(i).

134 For more on the exhaustion of domestic remedies in the context of the Commission, see Onoria, H “The African Commission on Human and Peoples’ Rights and the exhaustion of local remedies under the African Charter” (2003) 3/1 African Human Rights Law Journal 1 at 1Google Scholar and Viljoen International Human Rights Law, above at note 12 at 316–19.

135 See Viljoen, id at 317. See comms 25/89, 47/90, 56/91, 100/93 (joined) Free Legal Assistance Group and Another v Zaire (2000) AHRLR 74 (ACHPR 1995) (9th annual activity report), para 37; and comm 155/96 Social and Economic Rights Action Centre (SERAC) and Another v Nigeria (2001) AHRLR 60 (ACHPR 2001) (15th annual activity report), paras 38–40.

136 Comms 48/90, 50/91, 52/91, and 89/93 Amnesty International and Others v Sudan (Sudan Detention Without Trial) (13th annual activity Report), para 33. See also Zaire Mass Violations, above at note 132, para 15.

137 Onoria “The African Commission”, above at note 134.

138 Maputo Protocol, art 14(2)(b). During pregnancy, women's sexual and reproductive health should be respected and state authorities have a special duty to protect them.

139 African Charter, art 1: “The Member States of the Organisation of African Unity, parties to the present Charter shall recognise the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect to them.”

140 Under rule 98(4) of the Rules, a state must respond to a “request” for PMs within 15 days, indicating how it has implemented it.

141 Herrera, C Burbano Provisional Measures in the Case Law of the Inter-American Court of Human Rights (2010, Intersentia) at 1Google Scholar.