Kenya: Court Declares Abortion-Related Arrests, Prosecutions Illegal


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Judge's gavel (file photo).

26 MARCH 2022
Capital FM (Nairobi)By Jemimah Mueni

Malindi — The High Court in Malindi has declared abortion related arrests and prosecution illegal.

The landmark ruling made on Friday now protects patients seeking abortion services as well as healthcare providers offering the services.

While making the ruling, the court noted that abortion care is a fundamental right under the Constitution of Kenya and that protecting access to abortion impacts vital Constitutional values, including dignity, autonomy, equality, and bodily integrity.

It also ruled that criminalizing abortion under Penal Code without Constitutional statutory framework is an impairment to the enjoyment of women's reproductive right

The court case in question, which was filed in November 2020, involved PAK, a minor aged 16 from Kilifi County, after she experienced pregnancy related complications and sought medical care at a nearby clinic.

Upon examining her, the clinical officer determined that she had lost a pregnancy and proceeded to provide her with the needed care, an incident that prompted police officers to storm the clinic and arrest the girl along with the clinical officer alleging offence of abortion.

The clinical officer was detained for one week while the girl was remanded to a juvenile remand for more than a month as she sought to secure the cash bail for her release.

The court further directed Parliament to enact an abortion law and public policy framework that aligns with the Constitution.

In Kenya, the 1963 Penal Code criminalizes all abortion care, including those allowed under the Constitution 2010.

The Constitution permits abortion if in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger.

Evelyne Opondo, Senior Regional Director for Africa at Center for Reproductive Rights said, "Today's victory is for all women, girls, and healthcare providers who have been treated as criminals for seeking and providing abortion care.