by Prof Clara Burbano-Herrera*
Maternal mortality rates reflect disparities between rich women and poor women, and between developed countries and developing ones.[i] Frequently, a woman’s social, economic, and cultural status is a factor in her chances of surviving pregnancy and childbirth. The poorer and more marginalised a woman is, the greater her risk of death.[ii] Ninety–nine percent of maternal deaths occur in developing countries, and most of these deaths are preventable.[iii]
While worldwide maternal mortality has declined – in 2013 the global maternal mortality ratio was 210 maternal deaths per 100,000 live births, down from 380 maternal deaths in 1990 (a 45% reduction)[iv] – maternal mortality in Kenya has decreased very little. Between 1990 and 2013, maternal mortality in Kenya dropped from 490 to 400,[v] well short of the target of 147 per 100,000 births set by Millennium Development Goal No. 5 [vi] [vii].
Certainly the high level of maternal mortality in Kenya is not related to a lack of legal protection, to discriminatory laws, lack of national organs to address the problem, or lack of information about the high levels of maternal mortality. On the contrary, Kenya has a political Constitution, which entered into force in 2010 and recognises and protects women’s rights, including reproductive health care (Article 43). Moreover, Kenya has ratified international human rights treaties both at the universal and regional level, and these form part of the national law of Kenya.[viii] These treaties protect the right to health, sexual and reproductive rights, and women’s rights.
Kenya is a member state of the African Union and the African Human Rights System. Furthermore, the Government of Kenya has campaigned for the reduction of maternal death (the 'Campaign beyond Zero,' for example),[ix] and has two constitutional commissions whose function is to promote and protect women rights: The Kenya National Commission on Human Rights and the National Gender Equality Commission. Both of these groups have published several reports on the problem of maternal mortality, and they have also proposed solutions.
Several structural factors – cultural, economic, social, and so on – could explain the high rates of maternal death in Kenya, but the question is also one of accountability: Who should be held accountable for this continued tragedy? The persistently high level of maternal mortality in Kenya in the new millennium should be understood as a failure by state authorities to comply with the commitments they made under the Cairo International Conference on Population and Development (1994), the Beijing Declaration (1995), and under the Kenyan Constitution.
The authorities should be held accountable for each woman who dies due to absent or inadequate maternity services and for the greater implications of those deaths. As has been mentioned by scholars before, loss of life is not the only outcome of failure by states to provide access to safe maternal services. Each maternal death carries social and economic implications for newborns, families, and the wider community.[x]
Already, twenty years have passed since the Cairo Conference. Today, it is important to identify and develop new strategies to hold authorities accountable for preventable maternal deaths. In thinking about how international law could help hold states accountable, African countries should use the African human rights framework more intensively, in order to identify those rights that have been violated by a given state’s failure to respect, protect, and fulfill women’s rights to safe motherhood. These include the rights to life, health, non-discrimination and equality, and information. The framework should be used to see that Kenya be held responsible for preventable maternal deaths.
We may draw inspiration from a 2011 decision of the Committee on the Elimination of Discrimination Against Women, which found that Brazil had breached its obligations under the Convention on the Elimination of All Forms of Discrimination Against Women in failing to prevent a maternal death. In the Brazil case, it was found that a 28-year-old woman died because she was not provided with appropriate health care to treat obstetric complications related to pregnancy. In other words, her death could have been prevented.
This case marked the first time that a UN treaty body conceptualised and applied accountability for preventable death in justiciable terms.[xi] We can only hope that the Brazil decision will promote better understanding of accountability surrounding maternal deaths. This landmark decision could open new pathways for African NGOs and lawyers to find strategies to influence Kenyan authorities to take women’s lives more seriously, and even to bring similar cases before the monitoring bodies under the African Charter on Human and Peoples’ Rights.
* Prof Clara Burbano Herrera, Professor of human rights law and Director of the Programme for Studies on Human Rights in Context, Ghent University, Belgium
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[i] Center for Reproductive Rights, From Risk to Rights: Realizing States’ Obligations, to Prevent and Address Maternal Mortality. 2014. Available at http://reproductiverights.org/sites/crr.civicactions.net/files/documents/GLP_Maternal_Mortality_Final.pdf [ii] See UNFPA. Rich Mother, Poor Mother: The Social Determinants of Maternal Death and Disability. 2012. Available at http://www.unfpa.org/sites/default/files/resource-pdf/EN-SRH%20fact%20sheet-Poormother.pdf [iii]World Health Organization (WHO). Maternal Mortality. Fact sheet No. 348. 2014. Available at http://www.who.int/mediacentre/factsheets/fs348/en/ [iv] See, WHO, UNICEF, UNFPA and the World Bank. 2014. “Trends in Maternal Mortality: 1990 to 2013,” 1. See also WHO. “Global causes of maternal death: a WHO systematic analysis”, in The Lancet Global Health. Available at http://www.thelancet.com/journals/langlo/article/PIIS2214-109X(14)70227-X/fulltext [v] See http://www.who.int/gho/maternal_health/countries/ken.pdf?ua=1 [vi] The United Nations’ fifth Millennium Development Goal (MDG 5) aims to give impetus to country efforts to stem the tide of maternal morbidity and mortality. Target 5A of MDG 5 aims at reducing the maternal mortality rate by 75 percent between 1990 and 2015, which would require an annual decline of at least 5.5 percent. Target 5B requires countries to achieve universal access to reproductive health services by 2015. See the United Nations Millennium Declaration. New York: UN 2000. [vii] Regional disparities in maternal mortality rates persist: Developing countries are burdened with 99 percent of maternal deaths worldwide, with the majority occurring in sub-Saharan Africa and roughly one-third in South Asia. See Hunt, Paul. 2013. ICPD and Human Rights: 20 years of advancing reproductive rights through UN treaty bodies and legal reform, p. 7.[viii] See, Kenyan Political Constitution, Article 2(6). [ix] Available at http://www.beyondzero.or.ke/ [x] See for example Women’s Lives Matter: The Impact of Maternal Death on Families & Communities (on demand video). Available at http://fxb.harvard.edu/womens-lives-matter/[xi] Alyne da Silva Pimentel v Brazil UN CEDAW Committee (10 August 2011). UN Doc CEDAW/C/49/D/17/2008; RJ, Cook 2013. “Human rights and maternal health: Exploring the effectiveness of the Alyne decision”. 41 Global Health and the Law, 103-123.