FIDA-Kenya and others v. Attorney General and others (High Court of Kenya)
Kenyan High Court Rules Victims of Sexual Violence Have a Constitutional Right to Abortion
(Updated 3.18.21) Kenya’s High Court ruled that the Ministry of Health’s 2014 withdrawal of the “Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya” and its subsequent ban on abortion trainings for health care professionals were arbitrary and unlawful. The Court emphasized that the right to health includes complete physical, mental, and social wellbeing and that victims of sexual violence in Kenya have the constitutional right to abortion.
The Center for Reproductive Rights won a milestone case at the High Court of Kenya in the case of a 14-year-old girl (JMM) who died from complications that resulted from an unsafe abortion. After becoming pregnant as a result of rape, JMM was unable to access safe abortion services. She had her pregnancy terminated by an unqualified provider and did not receive the post-abortion care she needed.
In 2014, the Kenyan Ministry of Health had withdrawn its “Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya.” This was an important policy document that guided health care providers on when and how they could provide safe and legal abortion and post-abortion services.
The Center filed its case in 2015 against the Attorney General, the Director of Medical Services, and the Ministry of Health. In 2019, the High Court found that the Director of Medical Services and the Ministry of Health violated the rights of Kenyan women and girls by arbitrarily withdrawing the guidelines, thereby creating uncertainty as to the status of legal abortion and discouraging medical providers from performing abortions for fear of criminal prosecution.
The Court’s ruling:
- Declared that women and girls have the right to the highest attainable standard of health, encompassing mental and social well-being as well as physical wellbeing, the right to non-discrimination, right to life, and other rights.
- Ordered individual reparations to JMM’s mother.
- Declared that the memo withdrawing the guidelines violated and threatened the rights of health workers, therefore, the memo and letter were found unlawful, illegal and now void.
- Declared that abortion is permitted for victims of sexual violence.
Plaintiff(s): FIDA-Kenya, JMM
Center Attorney(s): Martin Onyango
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