Trabajos con fronteras determinísticas

This thesis has shown that efforts to advance SRH rights in Kenya have largely drawn on medical arguments as opposed to human rights arguments in making the case for reforms. The need for an adolescent RH policy was argued as necessary to reduce the high rate of teenage pregnancy, unsafe abortion, and the need to protect adolescents from HIV infection by providing HIV/AIDS education. The need for a national RH policy was necessary in order to reduce the high rate of maternal mortality and morbidity, increase use of FP, tackle HIV/AIDS and STIs, among others (GoK 2007). Similarly, the need for a sexual offences law was largely argued as necessary to protect children and grandmothers from violence and ill-health resulting from sexual abuse. SRH rights advocates used stories of babies and grandmothers hospitalised following sexual abuse to elicit sympathy and support for the law. When the rights narrative was invoked, it focused not on women’s rights, but on children’s rights to sexual integrity in order to navigate the contextual hostility to women’s bodily autonomy and rights.

Evidently, the language of women’s rights to autonomy, equality, and freedom or even their right to health was not employed in making the case for reforms. This was partly because actors behind reforms in the bureaucratic processes were mainly medical actors who typically promote medical arguments as opposed to rights arguments. However, even in the sexual offences legislative process, which was spearheaded by rights actors, actors deliberately drew on medical/health arguments in order to gain support, and argued that a focus on women’s rights to autonomy and equality could have increased opposition115. Similarly, in the new constitution-making process, advocacy to reduce abortion restrictions used medical/health arguments as opposed to women’s rights arguments. As already discussed in the previous chapter, this strategy of reframing rights in the ‘neutral’ language of biomedicine or technical concepts has been argued by some scholars as necessary in bringing about reforms on contentious issues since the rights language is seen as

threatening (Dickinson and Buse 2008; Rosenfield 2008; Theobald and Nhlema-Simwaka 2008).

115 _{It is worth noting that while reform advocacy efforts marginalised the language of rights, the policy} documents produced partly adopted this language as used in UN documents only that this was qualified as applying to practices not prohibited in Kenya.

Nonetheless, while the largely masked language of rights has enabled partial reforms on SRH issues in Kenya, it has diminished the transformative power embodied in the language of human rights and therefore failed to reconstruct women, adolescents and sexual

minorities as human beings deserving autonomy, freedom and non-discrimination. Indeed, it has been argued that such conflation of the rights and medical narratives marginalises women’s autonomy and self-determination as relates to sexuality and reproduction (Miller and Roseman 2011; Nowicka 2011). Furthermore, disguising SRH rights in the language of science has meant that there has not been much focus by actors to educate and sensitise the grassroots in Kenya on the importance of human rights as they relate to health and SRH. Yet, FIDA-Kenya and CRR (2007) have noted the need to educate health care providers and the Kenyan public on the human rights to health, including SRH, since violations of the right to health are rampant in Kenya’s healthcare system. This is partly because both medical staff and patients do not understand and appreciate the human right to health, and the fact that the government needs to protect this right. Similarly, there have been no efforts to contextualise the SRH rights narrative by drawing on African cultural concepts of rights, claims and responsibilities. Yet, as discussed in the next subsection, a key weakness of the rights narrative is its disregard for African cultural notions of rights, entitlements and freedoms (see Undie and Izugbara 2011; Izugbara and Undie 2008; Englund 2006), which has meant that the narrative has failed to resonate with African leaders and communities alike. Thus, while religious leaders and politicians have focused on deriding the language of SRH rights as ‘foreign’ and reducing it to mean abortion,

adolescent sexuality and homosexuality as noted earlier, there has been no sustained counter debate to challenge these arguments.

Rather, in Kenya, the language of SRH rights has been largely confined to advocacy reports of rights organisations, which, only recently, are starting to focus on specific SRH rights issues. For instance, in 2007, CRR and FIDA-Kenya published a study that revealed extensive violations of SRH rights of women who deliver at Kenya’s largest maternity facility, Pumwani Hospital in Nairobi (see CRR and FIDA-Kenya 2007). FIDA-Kenya and CRR (2007:6) concluded that:

The negligence and abuse documented … have more than just public health

implications; they also constitute serious violations of human rights that are protected under national, regional, and international law. Fundamental human rights that the government of Kenya is obligated to guarantee include the rights to life and health; the rights to equality and non-discrimination; the right to be free from torture and cruel, inhuman, or degrading treatment; the right to dignity; the right to information; the

right to privacy and family; and the right to redress. The violations described in this report demonstrate that Kenya is not honouring its domestic and global commitments to respect, protect, and fulfil these rights.

Following this study, the KNCHR in 2011 conducted an inquiry into FIDA-Kenya and CRR’s ‘allegations’ of SRH rights violations. The report of this inquiry confirmed FIDA- Kenya and CRR‘s findings that SRH rights violations are not just happening in Kenya’s healthcare system, but also in the legal system, as well as societal practices (see KNCHR 2012). In addition, in 2010, CRR published a report on the impact of Kenya’s restrictive abortion law, which similarly took a legal and rights focus (see CRR 2010).While the SRH rights language has found its way into advocacy reports like the ones above, elite rights actors noted that whenever they engage in critical policy forums with top policymakers, politicians and religious leaders, they focus on health arguments and not on women’s rights arguments in order to reduce opposition. A representative of the RHRA noted that:

‘When working with the powers that be, and I am talking about policymakers, politicians, religious leaders, when you are getting into these debates, human rights approach doesn’t work in this context. So it has to come from a public health perspective, using public interest stories, bringing in abortion survivors to make abortion to have a face‘ [Official, a network of national level reproductive health and rights organisations, September 21, 2011, Nairobi].

Mann’s (1999) argument that health and human rights are linked makes the avoidance of the human rights narrative in SRH advocacy efforts in Kenya an important issue. Mann (1999) has argued that ‘health and human rights are inextricably linked’, while Farmer (2001) has argued that ‘the most important question facing modern medicine involves human rights’. Indeed, human rights arguments have been instrumental in forcing some governments to reform health-related policies. In South Africa, for instance, given the government’s recognition of health as a human right in the 1996 constitution, civil society used the argument of the ‘human right to health’ to bring about health policy reforms as they relate to accessing HIV/AIDS anti-retroviral treatment in early 2000s. In 2000, an activists movement, the Treatment Action Campaign (TAC), sued the South African government, arguing that the government’s policy restrictions on the availability of

Nevirapine and its failure to have a reasonable plan to make the drug more widely available violated the right to health of HIV-positive pregnant women and their children guaranteed by the country’s 1996 constitution (Annas 2003). TAC won the case and forced the South African government to reform the policy to provide Nevirapine to all HIV positive people in the country, demonstrating the power of the ‘human right to health’ argument.

The use of the human rights argument in the HIV/AIDS case was possible because civil society advocacy and activism created a strong link between HIV/AIDS and human rights by focusing on how poverty and vulnerability not only expose people to HIV/AIDS, but also condemn them to death since they cannot afford treatment (Gruskins et al 1996). Gruskins et al (1996: 1111-1112) noted that by focusing on vulnerability and poverty ‘it became clear that a lack of respect for human rights and dignity was a major contributor to the HIV/AIDS problem.’ This link between poverty and vulnerability, and HIV/AIDS was critical in linking HIV/AIDS and human rights in South Africa. In Kenya, however,

although the constitution recognises the right to health, and the 2010 constitution now recognises the right to RH, reform actors have not drawn on human rights arguments in making the case for reforms as seen in the case studies. Particularly, the language of

women’s right to autonomy, equality and freedom has been largely avoided by rights actors in fear of attracting strong opposition given the patriarchal context, as noted above. It is worth noting that contexts where the rights narrative has been transformative in SRH- related reforms such as in South Africa and Latin America have had historical engagement in political struggles for general citizenship and democratic rights. Such engagement has produced strong human rights movements at grassroots levels. Thus, such understanding and appreciation of the importance of human rights and their transformative power, has largely contributed to the adoption of the human rights language in advocacy for health and SRH. Thus, the wide-ranging SRH rights realised in South Africa’s 1996 constitution were as a result of the country’s longstanding history of rights movement (Petchesky 2003: 230). Similarly, in Latin American countries, the presence of strong women’s rights

movements, which emerged as part of broad movements for democratisation and citizenship rights, have been instrumental in SRH rights reforms (Petchesky 2003: 208). Even then, while South Africa adopted the global rights narrative, in Latin America, women’s movements distanced themselves from the global rights based individualism by focusing on ‘familist’ arguments on the role of women as wives and mothers in securing rights in order to resonate with the context (Molyneux 2001). Undoubtedly, such

contextualisation of the rights narrative has had some negative effects. Nevertheless, these examples demonstrate that even in conservative contexts, the human rights narrative does possess power to bring about reforms if its frames are widely understood and accepted, and/or contextualised to resonate with the interests of influential actors. In Kenya, however, the general human rights movement has remained weak and confined to elite circles as discussed in Chapter 7. Thus, the SRH rights language has remained

misunderstood by the grassroots and some policymakers, misrepresented by religious leaders and politicians, and consequently marginalised in SRH policy and legislative debates.