J.M. v. Attorney General and 6 others
The High Court of Kenya found the government violated J.M.’s constitutional and international human rights by seriously mistreating her and not providing her with mandated free quality maternal healthcare when she gave birth in a public hospital in August 2013. The Court held the government accountable for failing to properly implement and oversee its national free maternal healthcare policy, including because it did not allocate the maximum available resources toward that end.
J.M. sought maternal health care in the Bungoma District Hospital, now the Bungoma County Referral Hospital. This hospital is a public health care facility that, in line with the President of Kenya’s 2013 Presidential Directive, was supposed to provide free maternal health care. At the hospital, J.M. was told to pay for medicine to induce her labor, and after her labor was induced, she was ordered to walk to the delivery room when her labor pains started. She followed the directive, found the delivery beds occupied, and had started to return to the labor ward, when she fainted. She delivered her baby while unconscious, and she awoke to nurses shouting at her, hitting her, and commanding her to walk back to the delivery room to deliver her placenta. Without her knowledge, the clip was filmed by a fellow patient, and it was later picked up by journalists and shown on the national news. J.M. only realized the extent of her mistreatment when she saw the video after the incident.
J.M. brought a case against local and national authorities, challenging the disrespectful and abusive treatment she received and demanding that the government address the infrastructure challenges of the healthcare system in Kenya. She claimed the verbal and physical mistreatment, disrespect to her dignity, and government failure to guarantee adequate maternal care violated her constitutional rights, as well as rights under the African Charter on Human and Peoples’ Rights and several other international human rights treaties. Amici noted that the ICESCR designates maternal care as an area that states must take special care to protect, and the Convention on the Elimination of all Forms of Discrimination Against Women establishes a duty for states to take special care to eliminate discrimination against women in health care.
The Attorney General and national Cabinet Secretary for Health maintained that the Ministry of Health had executed its mandate to set standards and policies for health care; that the Ministry had ensured access to free maternal care without discrimination; and that adequate grievance procedures were in place. The national government denied violating any of J.M.’s rights yet acknowledged that resources for staffing, equipment, and maternal care are limited. The hospital and county government claimed that J.M. had not followed the correct grievance procedure; that her claims were extreme and meant to hurt the hospital's reputation; and that—although services were stretched thin when she was admitted—the hospital attended to all patients. The hospital and county government argued internal investigations absolved the nurses of mistreatment.
In response to J.M.’s claims, the Court found that the hospital’s treatment of her violated several rights under the Kenyan Constitution and international law.
First, the Court observed that the Bungoma hospital did not have space or personnel to adequately attend to J.M. and to other women who needed maternal care. The Kenyan Constitution protects the right to “the highest attenable standard of health,” including maternal health, and, just prior to J.M.’s hospital visit, President Uhuru Kenyatta had issued a directive ordering public health facilities to provide free maternal healthcare. The Court further noted that the African Charter on Human and Peoples’ Rights (Banjul Charter) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) also protect the right to health. Given these standards, the hospital’ inadequacies; lack of equipment, basic supplies, and drugs; and low quality of care violated J.M.’s right to health.
Second, the Court held the government violated J.M.’s constitutional and international right to dignity and to freedom from cruel, inhuman, and degrading treatment because she was forced to give birth on the floor in an open area where she could be filmed by other patients, and because the nurses verbally and physically abused her in cruel and demeaning ways.
Third, the Court made explicit the link between the violation of J.M.’s right to health and national policy. The parties recognized the Kenyan government can guarantee the right to health through progressive realization, or a scaling up over time of the quality and availability of services. However, the Court reasoned the government failed to develop and implement effective policies and dedicate the mandated maximum available resources to achieve quality maternal health care. In particular, the Court found the authorities “have not devoted adequate resources to healthcare services, have not put in place effective measures to implement, monitor and provide minimum acceptable standards of healthcare.”
The Court ordered that J.M. be given a formal apology from the nurses, the county health secretary, and the hospital, and be awarded damages.
This case sets a precedent that women must be provided quality maternal care and that government failure to implement policies can be directly tied to a violation of citizens’ rights to healthcare and dignity. Although the kind of extreme mistreatment J.M. experienced is systemic, similar cases are rarely widely publicized. Because the video of J.M.’s abuse was shown on national television, her case has drawn more attention to the crisis of institutional negligence in maternal health care in Kenya. Hospitals in Kenya experience desperate overcrowding, precarious conditions, and a lack of supplies, which drives up rates of infant and maternal mortality and puts substantial pressure on staff to get patients in and out quickly. Hospital staff often receive inadequate training and supervision, which may influence unethical practices. This case may help address such systemic issues by drawing attention to the responsibilities of policy makers that flow from constitutional and international human rights law. The case builds on Millicent Awuor (Maimuna) and Margaret Anyoso Oliele V AG and others, in which the Kenyan High Court found gender and socioeconomic discrimination—as well as cruel, inhuman, and degrading treatment—of two women detained after childbirth for failure to pay medical fees.
For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.