By Gift Briton

The Constitution of Kenya 2010 provides unconditional healthcare access, including sexual and reproductive health (SRH) services. However, the law remains unclear in terms of adolescents’ access to contraceptives.

The bone of contention has been whether minors (adolescents below the age of 18) can independently (without parental/guardian consent) access contraceptives despite a section of certain policies, laws and guidelines prohibiting them from accessing contraceptives without their parent/guardian’s knowledge.

The issue has led to back and forth among various actors in the reproductive health space especially in the context of the rising cases of new adolescent pregnancies, new HIV infections and gender-based violence (popularly known as the triple threat) among adolescents and young people.

The latest HIV estimates show that around 100 adolescents between 10 -24 years are newly infected with HIV every week. Further, approximately 300,000 adolescents and young girls in Kenya get pregnant every year, with some ending up in unsafe abortion corridors. According to experts, SRH services such as access to contraceptives, maternal health, and prevention of sexually transmitted infections (STIs) are fundamental responses to address the triple threat.

During a recent Reproductive Health Stakeholders meeting in Nairobi, a section of civil society organisations (CSOs) faulted some public entities for propagating the confusion around adolescent access to SRH services through the formulation of policies that are inconsistent with the constitutional provisions and taking away adolescents’ fundamental rights and freedom, including the right to access reproductive healthcare independently..

Representatives of different CSOs who spoke during the event cited regression in various legal frameworks in the country, including some sections of the infamous Reproductive Health Policy 2022 and the Children’s Act, as a major impediment to ending the triple threat.

“The confusion around children accessing contraceptives is a question of misdirection and confusion from the Ministry of Health in terms of lack of clear policy directives. It is also a question of personal bias and a school of thought that may not help. The Government has a responsibility to give you care irrespective of your belief or ideology,” remarked Martin Onyango-Associate Director for Legal Strategies at the Center for Reproductive Rights (CRR).

According to Onyango, health is a fundamental human right protected under Article 43 of The Constitution where everyone has a right to the highest attainable standard of health and it prohibits discrimination based on age, sex and health.

“The way a pregnant 16-year old adolescent is not sent back when they visit a health facility to seek antenatal care is the same way a 15-year old seeking family planning services should not be sent back to bring her parent or guardian. The Constitution is supreme and binding on all of us and all Government institutions. Fundamental rights and freedom in our Constitution are not given by anybody but are an entitlement and it is the duty of all Government institutions to respect that,” he stated.

Onyango added: “There is never a confusion in law. The issue of children’s access to contraceptives is the Ministry of Health’s confusion where it stops being about healthcare but about personal persuasions and beliefs. It is wrong to turn down sexually active children from accessing contraceptives without parental consent. This is about the plight of the economically indigents in the society. It is poor people’s problems and that is why they become a human rights conversation. It is only the poor people who get denied the care they are entitled to because of other people’s moral persuasions.”

Dr. John Nyamu- Founder chairman of the Reproductive Health Network Kenya (RHNK) also lamented the unsupportive laws in the county that reverse the gains and impede the efforts to end the triple threat. He mentioned the need to advocate for progressive laws that not only protect but also take into account the lived realities and reproductive health needs of adolescents and young people and that the government should collaborate with CSOs including in policy formulations informed by the realisation that the policies and laws we have as a country can be and are a barrier to adolescent access to SRH services.