The high court in Malindi in its landmark judgment on Friday, has said that abortion care is a fundamental right under the Constitution of Kenya and that arbitrary arrests and prosecution of patients and healthcare providers for seeking or offering such services is illegal.
High court judge Rebeun Nyakundi noted that protecting access to abortion impacts vital constitutional values including dignity, autonomy, equality, and bodily integrity and criminalizing abortion under Penal Code without Constitutional statutory framework is an impairment to the enjoyment of women’s reproductive rights.
For years, Kenyan women and girls have faced pervasive discrimination while seeking reproductive healthcare services because the 1963 Penal Code criminalizes all abortion care including those allowed under the Constitution 2010, which guarantees the right to health care, including access to reproductive health services.
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.
This ruling comes after Center Reproductive Health Network Kenya, listed as the petitioner, a 16 year old minor and a clinical officer moved to the court to challenge the government’s failure to interpret and apply the impugned sections of the penal code with the alterations, adaptations, qualifications and exceptions necessary to align them with the constitution.
The matter sought to confront the government’s inconsistent and noncommittal approach in updating statutes affecting women’s reproductive health care, following the arrest and prosecution of Salim Mohammed (a clinical officer and the minor providing and receiving post-abortion care).
The petitioners had sued the Attorney General, the Director of Public Prosecutions, the Inspector General of Police, and Senior Principal Magistrate,
The minor had been charged with the offence of procuring an abortion contrary to section 159 of the penal code.
While Mohammed was slapped with charges of an attempt to provide abortion contrary to section 158 of the penal code.
He was further slapped with a second count of, supplying drugs to procure abortion contrary to section 160 of the penal code.
Justice Nyakundi directed parliament to enact an abortion law and public policy framework that aligns with the Constitution.
Further the court established that the minors arrest was inhuman and degrading, and being a minor, she ought not to have been interrogation and legal representation.
