FROM DIRECTIVES TO ACCOUNTABILITY: THE LEGISLATIVE DRIVE TO CRIMINALIZE MATERNAL HEALTH NEGLIGENCE
The Bill is sponsored by Senator Beatrice Ogolla in the Senate and was co-sponsored by the Departmental Committee on Health in the National Assembly. It seeks to enhance the health rights and quality of care for mothers, newborns and children across Kenya by providing a coordinated legal framework for the provision of quality maternal, newborn and child health services and for responding to maternal and child morbidity and mortality. The Bill is anchored, among other constitutional provisions, on Article 43(1)(a) of the Constitution of Kenya, which provides that every person has the right to the highest attainable standard of health, including the right to health care services, including reproductive health care
Additionally, Article 21(1) places the obligation and a fundamental duty on the state and every state organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights, which includes the right to health.
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The bill has however received backlash and mixed views from healthcare workers questioning its objectivity. It is argued that the government has not deployed critical resources into these healthcare facilities, let alone ensuring that access to such facilities or the necessary resources are available to respond to emergency cases. The proposed Maternal, Newborn, and Child Health Bill shifts maternal care out of the arena of gradual administrative policy (like Linda Mama or SHA subsidies) and transforms it into a binding, immediate statutory entitlement. It operationalizes the Bill of Rights by creating explicit, actionable legal obligations for both national and county governments.
The Constitutional Imperative: Why Free Care Must Be Paired with Institutional Accountability
Kenya’s healthcare landscape has long relied on overarching legal instruments. While Article 43 of the Constitution guarantees the right to the highest attainable standard of health, Section 5 of the Health Act, 2017 establishes the broader framework through which national and county governments are required to progressively realise that right.
The proposed Maternal, Newborn and Child Health Bill seeks to supplement this broader framework with specific obligations relating to maternal, newborn and child healthcare. Clause 3(c), for example, seeks to establish a framework responsive to the causes of maternal, newborn and child morbidity and mortality, while Clause 3(d) seeks to ensure that interventions, services and supplies are available and accessible to the public.
Importantly, the Bill does not merely impose obligations on healthcare providers. Clause 5(3) expressly requires the National and County Governments to respect, protect and fulfil the right to maternal, newborn and child health and to put in place mechanisms ensuring the availability of the infrastructure and facilities necessary for the effective delivery of health services.
This is reinforced by Clause 11, which requires the two levels of government to facilitate reasonable maternal, neonatal and child health services, emergency and ambulance services, human resources, essential supplies, commodities and equipment, lifesaving commodities and the infrastructure necessary to support basic and comprehensive emergency obstetric and neonatal care.
Accordingly, it would be inaccurate to suggest that the Bill is silent on the development of healthcare facilities or the allocation of resources. The more pertinent concern is whether the obligations are sufficiently specific and enforceable to ensure that the infrastructure, staffing, equipment, commodities and financing required by the Bill are actually available in practice.
While the Maternal, Newborn and Child Health Bill, 2023 introduces statutory accountability, legislative sanctions alone cannot repair systemic weaknesses within the healthcare ecosystem. In Kenya, physical access to a facility no longer guarantees safe delivery; many mothers reach hospitals only to experience severe haemorrhage, trauma or death due to sub-standard care, unstocked commodities and acute understaffing.
Root-cause maternal mortality is rarely isolated to a single clinical error. It is driven by a combination of clinical, infrastructural, financial, geographical, staffing, referral and health-system factors.
Beyond Clinical Malpractice: Why Statutory Penalties Cannot Fix Systemic Infrastructure Failures
The primary objects of this bill to provide a comprehensive legal framework that would support accessibility and quality healthcare for women, infants and children. The Bill addresses the key principles that would ensure that all women and children, including pregnant adolescents and vulnerable persons, receive adequate care.
It states that “a person seeking maternal, newborn and child health services in any health care facility is entitled to be treated with courtesy and respect irrespective of their race, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.”
The Bill also expressly recognises that access to maternal and child healthcare requires more than the availability of a healthcare professional. Clause 11 requires the provision of human resources, essential supplies, commodities and equipment, lifesaving commodities, emergency and ambulance services and infrastructure necessary for emergency obstetric and neonatal care.
This is significant because the Bill places obligations at both levels of government. Under the Constitution, national government is responsible for health policy and national referral health facilities, while county governments are responsible for county health services, including county health facilities, pharmacies, ambulance services and promotion of primary healthcare.
The Bill reflects this constitutional division. Clause 12 assigns the Cabinet Secretary responsibilities including development of national policy, strategies and standards, coordination, infrastructure, referral systems, monitoring, resource mobilisation and collaboration with county governments. Clause 14, on the other hand, places extensive implementation responsibilities on County Executive Committee Members, including ensuring equitable access, improving the quality of services, training skilled birth attendants and healthcare providers and implementing programmes aimed at reducing maternal and infant mortality.
The Bill therefore does not create a system in which healthcare providers are solely responsible for outcomes. Rather, it creates a chain of responsibility extending from the National Government, through county governments, to health facilities and individual healthcare providers.
Preconception Care as a Statutory Entitlement
A critical yet understated feature of the Maternal, Newborn and Child Health Bill, 2023 is its expansion beyond the immediate window of pregnancy and childbirth. The proposed legislation extends statutory entitlements to non-pregnant women, guaranteeing access to family planning, preconception care, counseling, health information and education and referral to adoption services.
By mandating that the Cabinet Secretary for Health may prescribe standards for the effective delivery of these services, the Bill adopts a holistic approach to reproductive health. The approach recognises that reducing maternal morbidity and mortality requires intervention before pregnancy, rather than waiting until a woman presents with an obstetric complication.
The Bill further requires measures to ensure that every pregnant woman has access to services aimed at achieving optimal health throughout pregnancy and after birth, including free prenatal care, intrapartum care and postpartum or postnatal services.
It further provides for healthcare services for children from birth to the age of twelve years, including newborn care, nutrition, immunisation, growth and developmental monitoring, diagnosis and treatment, rehabilitation, referral and follow-up. Clause 8 expressly provides for parental or guardian consent before healthcare services are provided to a child.
The Bill also creates specific protections and services for women with special needs, including women with disabilities, women with mental illness, women in marginalised areas and pregnant adolescents. It requires adolescent-friendly and disability-friendly services, counselling, referral and follow-up, as well as respectful and dignified care.
At the county level, Clause 20 requires County Executive Committee Members to identify vulnerable and marginalised communities, determine gaps in the provision of health services, formulate interventions, establish continuity mechanisms during pandemics and strengthen the capacity of health workers to respond to the needs of vulnerable groups.
Healthcare Infrastructure and Financing: Is the Government Really Doing Nothing?
It is important to recognise that the Government is not without legal or policy obligations concerning healthcare infrastructure and financing. Under the Health Act, county governments are responsible for the maintenance, financing and further development of devolved health services and institutions, while the Maternal, Newborn and Child Health Bill itself requires both levels of government to facilitate access to healthcare infrastructure, human resources, essential supplies, equipment, emergency services and lifesaving commodities.
The Facilities Improvement Financing Act, 2023 has further established a framework for financing public health facilities. The Government has also continued to invest in healthcare infrastructure, including the development and upgrading of health facilities and targeted maternal and newborn health services.
The concern, therefore, is not the absence of government obligations, but whether the existing obligations and investments are sufficient, equitable and adequately resourced to enable every facility to meet the standards contemplated under the Bill. The Bill does not prescribe detailed minimum resource thresholds, clear timelines for achieving the required infrastructure and staffing levels or a specific funding mechanism for ensuring that facilities have the resources necessary to comply with its standards. This becomes particularly significant where criminal liability is contemplated.
A healthcare provider’s knowing disregard of an established professional standard is materially different from a failure occasioned by systemic constraints such as the unavailability of blood, medicines, equipment, theatre capacity, ambulances, specialised personnel or an appropriate referral facility. Accountability should therefore extend across the healthcare system and should take into account the institutional conditions within which healthcare providers are expected to deliver care.
What Healthcare Providers Need to Know: Navigating New Duties, Risk Controls, and Statutory Liability
The Bill requires every hospital or approved health facility to maintain a prescribed register recording maternal, newborn and child health cases. Proper record-keeping will be essential for clinical governance and may provide important evidence of the treatment, referrals and decisions made where allegations of negligence arise.
More significantly, Clause 24 requires healthcare providers and facilities to comply with prescribed procedures, standards, codes of ethics and guidelines. A person who knowingly contravenes these requirements may, upon conviction, face a fine of up to Kshs. 500,000, imprisonment for up to two years, or both.
For a facility, members of its governing body may be jointly and severally liable to a fine of up to Kshs. 1 million, imprisonment for up to two years or both.
The proposed sanctions therefore raise important questions about individual accountability, particularly where non-compliance may arise from systemic challenges such as inadequate staffing, equipment, medicines or other essential resources.
Conclusion
For over a decade, the constitutional guarantee to reproductive health under Article 43(1)(a) has operated alongside broader statutory frameworks, administrative schemes and policy directives. The proposed Bill represents a significant step towards translating these constitutional guarantees into more specific and enforceable statutory duties. By pairing clearer statutory obligations with accountability mechanisms, the framework seeks to ensure that “health as a right” is backed by real legal accountability for facilities and care providers alike.
The Maternal, Newborn and Child Health Bill, 2023 represents an attempt to move maternal, newborn and child healthcare from broad constitutional guarantees towards clearer and more enforceable statutory obligations. Importantly, accountability under the Bill extends beyond individual healthcare providers to the National and County Governments, which are required to provide the infrastructure, human resources, essential commodities, emergency services and financing necessary for effective healthcare delivery.
The Bill therefore presents an opportunity to strengthen maternal, newborn and child healthcare. However, its proposed criminal sanctions must be balanced against the realities within which healthcare providers operate. Accountability should extend across the healthcare system, ensuring that providers and institutions are not held responsible for systemic failures beyond their control, while those who knowingly disregard established standards are appropriately held to account.
Ultimately, the effectiveness of the proposed law will depend not only on the severity of its penalties, but on whether the necessary resources, infrastructure, staffing and systems are available to deliver the standard of care that the Bill seeks to guarantee.
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