Incarceration, by its very nature, involves momentarily renouncing a number of freedoms, but the right to be healthy. To decide whether or when to bear a child and to have a healthy being pregnant, should not be among them. This has been put forward by the theory of reproductive justice. Many countries in Sub-Saharan Africa fail to observe women’s rights to proper healthcare in their various developments. Sub Saharan Africa (SSA) prisons have grown by 22% in women prisoners over the years.
Most of the prison conditions do not conform to the care standards which are mandated by the human rights and international framework recommendations and have rendered most incarcerated women to be faced by detrimental challenges. The adoption of the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) in 2010 drew attention to the plight of women in prison and, for the first time, issues such as women’s reproductive health, mental health, histories of abuse, children imprisoned with mothers and duties of care with respect to female detainees were recognized in the international legal framework.
International standards dictate that for women in detention, there shall be special accommodation for all necessary prenatal and postnatal care and treatment In recent years, the Division of Reproductive Health of the Ministry of Public Health and Sanitation has overseen the development of several policies and strategies that contribute to the nationwide strengthening of Kenya’s Maternal and Neonatal and Child Health (MNCH) Programme. This is after a directive which was passed in 2013 to facilitate free maternal health care in all public health centres. The brewing worry is whether the execution of the free maternity policy meets the Accessibility, Availability, Acceptability and Quality of Care (AAAQ’s)’ limit. Does this policy ensure that no woman is left behind? Are pregnant ladies benefiting from quality maternal care? A recent study from the MHTF-PLOS Collection evaluating maternal healthcare in Kenya unveiled that the quality of adequate antenatal and delivery care in maternal health care was low. At the county level, 9% of the Kenyan population had sufficient antenatal care coverage while only 17% had productive delivery care coverage. Women who are pregnant on entering prison or who become pregnant during their incarceration as a result of the abuses or of conjugal visits, as well as nursing mothers, are in need of specific health care facilities which are often unavailable or insufficient. As such this makes them highly vulnerable as it’s worsened by their total dependency on the state to fend for the needs. Maternal health care within prisons in Kenya in particular, is typically inadequate to meet the medical and psychological needs of the female inmates. No much attention has been given into it considering them a vulnerable group due to their unique needs as we shall discuss in this paper. The high vulnerability of female detainees is worsened when they are pregnant and after giving birth while in prison . It is further aggravated by the inability to access tools of justice, which leads to more disempowerment of a so-far marginalised group. Once women are detained, they encounter a number of critical challenges which incommensurately affect them and their rights to human dignity as enshrined in our constitution. These include issues around reproductive health, mental health, abuse and sexual harassment. The Constitution in that regard provides that every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care’ .Further, the Constitution obliges the State to put in place affirmative action programs to ensure that minorities and marginalized groups have reasonable access to health services. . As we shall see pregnancy and reproductive health needs are an ignored area of health care. Generally, prisons are generally faced with overcrowding, poor diet and lack of proper sanitation which makes the situation unfavourable for the inmates. In addition access to hospital treatment is restricted by prison officers who reportedly either refuse to take very sick inmates to hospital or do so, so late, that the inmates are often extremely ill or dying by the time they arrive. Other challenges faced pregnant detainees include but are not limited to lack of prenatal and postnatal care, inadequate education regarding childbirth and parenting, and little or no preparation for the mother’s separation from the infant after delivery. Pregnancy and childbirth is a facet of female incarceration that is receiving increased attention in literature and legislation. The UNSMR states that women’s institutions should especially accommodate for pregnant detainees by providing pre-natal and post-natal care .Also, the African Protocol for Women provides for the right of pregnant or nursing women in detention to an environment which is suitable for their condition as well as the right to be treated with dignity. Pregnant women inmates have specific health needs and are hence entitled to adequate ante- and post-natal care. This care should be provided in the prison by qualified personnel or at community hospitals or health centres where the prison is unable to provide these services directly. Lack of proper perinatal healthcare is detrimental both to the mother and the child as it poses health risks as we shall discuss. LEGAL FRAMEWORKDOMESTIC LEGISTLATION‚§ Constitution of KenyaThe promulgation of the constitution of Kenya on 27thAugust, 2010 was a major milestone towards the advancement of health standards in different avenues .The inclusion of the right to health among other socio-economic rights in the Constitution is one of the main attribute that makes it a much adored and admired document. In supporting this, it provides that every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;. The reproductive and sexual rights of women have for a long time been neglected, hence this sets a new jurisprudence on the litigation of reproductive health rights. Further, this implies that everyone including those behind bars is entitled to proper healthcare including maternal healthcare which is crucial for every woman who is pregnant or nursing. To achieve this right, the Constitution mandates the state to take legislative, policy and other measures, including setting the necessary health standards. The constitution also goes ahead to oblige the State to put in place affirmative action programmes designed to ensure that minorities and marginalised groups have access to healthcare. An Affirmative action can be described as a practice that redresses discrimination in society and is as a result meant to promote equal opportunities between both men and women. However much needs to be focused on regarding female inmates who require gender specific care to ensure that equity is achieved in regards to their reproductive health.Persons incarcerated or in custody are also protected under the law as they retain all the rights and fundamental freedoms in the Bills of Rights, except to the extent that any particular right or a fundamental freedom is incompatible with the fact that the person is detained, held in custody or imprisoned’. This then infers that they are guaranteed and thus have an exclusive prerogative to attain and access the highest attainable healthcare.In Kenya the provision of health care has been devolved to the National Government and the County Government in order to promote the realization of the right to health. The County government fosters health services in the county through county health facilities and pharmacies, ambulance services and promotion of primary health care. On the other hand the National Government is required to handle adoption of health policies, national referral health facilities and capacity building and technical assistance to counties. The administration of the right to health is also monitored by international provisions. The CoK makes any treaty or convention ratified by Kenya, part of the law. For example, the Sustainable Development Goals emphasizes precise areas of health including communicable, reproductive, maternal child health, universal health coverage etc. Moreover, the Convention on the Elimination of All Forms of Discrimination against Women pointedly protects the status of motherhood and the special health needs of women, and requires parties to provide access to medical care and to other resources necessary for a safe pregnancy. ‚§ Health Act 2017This Act provides for the right to reproductive health which includes the right of access to appropriate health-care services that will enable parents to go safely through pregnancy, childbirth, and the postpartum period, and provide parents with the best chance of having a healthy infant. The National and County governments are also mandated to provide free and compulsory maternity care under section 3. This is in line with the SDG 3 on health whose target is to reduce the global maternal mortality ratio to less than 70 per 100,000 live births and ensure universal access to sexual and reproductive health-care services, including for family planning, information and education, and the integration of reproductive health into national strategies and programmes by 2030. Section 15 outlines the duty of the Ministry of Health to develop health policies, laws and administrative procedures and programmes in consultation with county governments and health sector stakeholders and the public for the progressive realization of the highest attainable standards of health including reproductive health care . ‚§ Kenya Prisons Act 1968The medical officers in prisons are responsible for the health of all prisoners in a prison and are authorized to medically examine all prisoners at such times as shall be prescribed.’ Section 39 also states that in the case of the illness of a prisoner detained in a prison in which there is not suitable accommodation for such prisoner, the officer in charge on the advice of the medical officer, may order his removal to a hospital, and in case of emergency such removal may be ordered by the officer in charge without the advice of the medical officer ,.However it should be noted that most prisons lack delivery facilities ,hence the Prison department relies on the Ministry of Health. In a field research done at Langata Women’s Prisons, the data showed that nine women gave birth at Kenyatta National Hospital while one gave birth at the Langata ward. It’s provided that delivery is not supposed occur at the prison wards due to lack of health resources and the risky nature of the procedure.‚§ Kenya Health Policy 2014″2030The Kenya Health Policy, 2014″2030 gives the oversight to see that significant development in overall status of health in Kenya is in line with the Constitution of Kenya 2010, Vision 2030 and global commitments. It illustrates the health sector’s efforts, under the government’s stewardship, to ensuring that the country attains the highest possible standards of health, in a manner responsive to the needs of the population. The General health profile, reports that there has been a general improvement in health in the last decade but some indicators stagnated, especially those related to neonatal and maternal health. It also reveals that by that time, there had been no progress towards achieving MDG 5 on improving maternal health. The Policy goal being Attaining the highest possible standard of health in a progressive manner, the framework of this attainment is further broken down to policy objectives, policy outputs ,policy principles(article 10 of the Constitution) and the Policy Orientation . The policy orientation relates to leadership/governance, the health workforce, health products, health infrastructure, health financing, and service delivery systems which their effectiveness is measured in terms of improvements in health outputs, relating to better access to care, improved quality of care, and demand for care. In improving access to health services the policy stipulates commitments towards that which will include; feasibly possibly and adequate physical access to health and related services and minimization of financial barriers limiting access to these services guided by the concepts of Universal Health Coverage and Social Health Protection. The policy is guided by several principles which include equity in the distribution of health services and intervention.’ This ensures that no form of exclusion or discrimination exists in the community but rather inclusiveness of everyone in providing healthcare. The Policy goal also mentions that during the 2014-2018 periods there shall be a definition of the Kenya Essential Package for Health (KEPH) which one of its clusters shall be focused on maternal and child health. INTERNATIONAL LEGAL FRAMEWOK‚§ United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (Bangkok Rules)Rule 5 of the convention provides that the accommodation of women prisoners shall have facilities and materials required to meet women’s specific hygiene needs, including sanitary towels provided free of charge and a regular supply of water to be made available for the personal care of children and women, in particular women involved in cooking and those who are pregnant, breastfeeding or menstruating. Rule 24 outrightly bans against the use of instruments of restraint on women during labour, during birth and immediately after birth. This implies that women should not be handcuffed nor shackled while undergoing delivery or after .A recent paper by The American Civil Liberties Union (ACLU) noted that shackling “poses an unacceptable risk to women’s health and that it violates human dignity.Rule 42 stipulates that prison regime shall be flexible enough to respond to the needs of pregnant women, nursing mothers and women with children. This includes adequate and timely food, a healthy environment and regular exercise opportunities provided free of charge. ‚§ UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules)Rule 5 of this convention with an aim of ensuring equity, provides that the prison regime should seek to minimize any differences between prison life and life at liberty which tends to lessen the responsibility of the prisoners or the respect due to their dignity as human being. This is to mean that no much difference should be felt in according of rights in particular, accessing proper maternal care like those who have freedom. In a research on the ideals medical service provisions in prisons by Friestad he contends with the provisions of the Kampala Declarations, 1996 and those of the Ouagadougou treaties which firmly pushed for health reforms as a foundation of the protecting the incarcerated persons’ right to health and suggests that medical personnel, ambulances, prison nutritionists, spacious accommodations and adequate funding’ should be extended to those imprisoned in the same scale as those being given to the everyday citizen.In addition Rule 27 outlines that all prisons should ensure prompt access to medical attention in urgent cases. Prisoners who require specialized treatment or surgery should be transferred to specialized institutions or to civil hospitals and where a prison service has its own hospital facilities, it should be adequately staffed and equipped to provide prisoners referred to them with appropriate treatment and care. With time this has improved in Kenya through the creation of Directorate of Prison health which has ensured at least a competent medical officer in each institution and that only emergency cases are referred to the public hospitals. Pursuant to the international standards of provision of gender specific requirements for female detainees, Rule 28 provides for special accommodation for all necessary prenatal and postnatal care and treatment and arrangements should be made wherever practicable for children to be born in a hospital outside the prison. In the circumstance that a child is born in prison it should not be indicated in his/her birth certificate. WHY IS ACCESSIBILITY OF MATERNAL HEALTH IMPORTANT?One of the key visions of the World Health Organization (WHO) beyond 2015 is a state where every pregnant woman and newborn receives quality care throughout pregnancy, childbirth and the postnatal period. According to Health Alliance International, pregnant women and children customarily are the most reliant and least puissant members of any society, and hence in need of extensive care and attention than other groups. UNICEF figures indicate that each year especially in developing countries, 529,000 deaths of mothers occur out of complications. United Nations Population Fund (UNFPA) is of the view that this can be mitigated, particularly by proper direction and access to care of women during delivery and pregnancy, and equally important all through their life. Incarcerated women usually make up a minority group of the overall prison population. More essentially, they have having unique and distinctive needs and vulnerabilities which differ from those of men. Many of them report mistreatment by correctional guards and staff during their