Court lifts ban on Marie Stopes safe abortion adverts, quashes KMPDC directive

The High Court in Nairobi on Thursday lifted the ban imposed on Marie Stopes advertisements on safe abortion and quashed a directive by the Kenya Medical Practitioners and Dentists Council (KMPDC) ordering the facility to transfer all its post-abortion patients to other hospitals.

Justice Chacha Mwita, in his judgment, said both the Kenya Film Classification Board (KFCB) and the KMPDC had conferred upon themselves powers they do not have.

The judge ruled that the mandate of the KFCB relates strictly to films and not advertisements, while the KMPDC can only regulate medical practitioners and not medical institutions.

He also noted that the communication to Marie Stopes was made by a Director of Medical Services, a position which does not exist in law.

“There was no lawful decision to make since KMPDC has no powers over medical institutions. The ruling of the inquiry committee of KMPDC was illegal, null and void. The decision by the Kenya Film Classification Board to ban advertisements by Marie Stopes was made without authority and was therefore unlawful,” Justice Mwita said.

In many communities across Kenya, thousands of teenage girls get unwanted pregnancies and end up with lifelong health complications through backstreet abortions.

In the case, the Network for Adolescents and Youth of Africa said some young girls lose their lives due to the lack of urgent medical emergency services in the form of safe abortion and post-abortion care.

This, the lobby group said, was the reason it filed the case to overturn decisions by government agencies banning Marie Stopes from offering and advertising reproductive health services.

“Women and girls suffer physical harm and sometimes death when they are treated inadequately and unsafely. Denial of legally available health services like safe abortion and post-abortion care can cause lasting physical and emotional suffering and amounts to abuse and mistreatment,” the lobby said.

Through lawyers Martin Onyango and Sofia Rajab, the group argued that following the ban, many women and girls who visited Marie Stopes in urgent need of reproductive health services were turned away, exposing them to lifelong risks associated with unsafe abortions.

The lawyers contended that it was illogical for a country like Kenya—where unsafe abortion is the third leading cause of maternal mortality and adolescent girls are the most affected—to ban centres that offer safe reproductive health services meant to save lives.

The dispute dates back to September 11, 2018, when the KFCB banned all radio advertisements by Marie Stopes over claims that the adverts promoted abortion.

On November 10, the KMPDC issued an order directing Marie Stopes to immediately stop offering any form of abortion services in all its 23 branches countrywide.

This was followed by a directive in November by then Director of Medical Services Jackson Kioko, banning Marie Stopes from providing post-abortion care in all its facilities.

However, the lobby argued that the three decisions were illegal, unconstitutional and contrary to Ministry of Health regulations, which recognise reproductive health services and post-abortion care as integral parts of maternity services.

“Since its inception in 1985, Marie Stopes has been a provider of much-needed reproductive health services, even in communities where the government has no established health facility. The ban will adversely affect women and young girls who will have nowhere to turn,” Onyango said.

He argued that denying Marie Stopes the opportunity to provide emergency medical treatment in the form of safe abortion and post-abortion care was cruel and amounted to denying women the right to access medical care of their choice.

Onyango further submitted that the decisions by KFCB and KMPDC violated the principle of fair administrative action since Marie Stopes was not given an opportunity to be heard.

“They failed to issue prior notice or give the reproductive health provider and members of the public an opportunity to present their views before reaching an adverse decision that affects a very large population of women and young girls,” Onyango said.

He added that the ban violated women’s right to the highest attainable standard of health and would create confusion among health providers on when abortion is permissible under the law.

According to the lobby group, the Director of Medical Services and KMPDC failed to consider that the lack of access to safe and legal abortion services has resulted in many deaths and serious harm to young girls—outcomes that could have been avoided through access to accurate information and care.

They also defended Marie Stopes against claims that it aired offensive radio adverts to promote abortion, stating that the information was intended solely to inform women of available options in cases of unwanted pregnancies.

“Banning the adverts on the grounds that they target teenage girls with inappropriate content, when adolescent girls are disproportionately affected by unsafe abortions in Kenya, violates their right to access critical health information,” Onyango said.

On the other hand, KFCB and KMPDC argued that their actions were aimed at protecting Kenyan children. They maintained that they had the authority to handle complaints against Marie Stopes, adding that although the organisation is registered as an NGO, it operates health facilities in the country.