(Updated 04.20.22) On March 24, 2022, the High Court of Kenya affirmed abortion as a fundamental right under the 2010 Constitution of Kenya and ruled that the arbitrary arrests and prosecution of patients and health care providers for seeking or offering abortion services are illegal. In its ruling, the Court directed the Kenyan parliament to enact an abortion law and public policy framework that aligns with the Constitution.
The case, brought by the Center for Reproductive Rights and the Reproductive Health Network Kenya (RHNK), involved the right of a minor to receive reproductive care, the right of a clinician to treat her, and the constitutional obligations of Kenya under its Constitution. The case sought to align the country’s Penal Code with its Constitution.
Kenya’s 2010 Constitution recognizes health care as a fundamental right—including access to reproductive health care (which includes abortion and post-abortion care) as well as access to emergency medical treatment. But facing strong opposition—often by the police—the government has failed to update its Penal Code to align with its Constitution. A decade after the Constitution was enacted, abortion care remains almost unobtainable throughout the country.
As a result, women and girls seeking abortion care in Kenya are at risk of harassment, wrongful arrest and prosecution, discouraging them from seeking care. Health care providers—also harassed and intimidated—are reluctant to offer safe abortion care, even on an emergency basis. Most impacted are young people and women and girls living in poverty and in rural areas. Girls are often forced to become parents at a young age, which prevents them from completing their schooling and pursuing their life goals. In addition, unsafe abortion remains a leading cause of maternal morbidity and mortality in Kenya.
The lawsuit was filed in 2020 on behalf of two plaintiffs: “PAK,” the patient who was a minor, and Salim Mohammed, a health care provider.
PAK experienced pregnancy complications and sought emergency care at the nearby Chamalo Medical Clinic. Mohammed—a trained clinical officer qualified to provide legal abortion care—treated her after determining she had lost her pregnancy. Both PAK and Mohammed were arrested and detained by the police—she was accused of attempting an abortion; he was accused of providing her a medication abortion. PAK was remanded to juvenile prison for one month as she sought to secure funds for bail, which were eventually provided by the Center and RHNK. Mohammed was detained for one week before posting bail.
On Sept. 23, 2019, PAK was charged with the offense of procuring an abortion contrary to section 159 of the Penal Code. The charges stated that PAK, intending to end her pregnancy, took drugs that led to her miscarriage. On the same date, Salim Mohammed was charged with an attempt to provide abortion contrary to section 158 of the Penal Code, with the prosecutor stating that Salim, together with others, gave PAK drugs that led to her miscarriage. He was further charged with supplying drugs to procure abortion contrary to section 160 of the Penal Code.
On Oct. 23, 2019, before the Senior Principal Magistrates Court in Kilifi, with support from the Center, the Petitioners challenged the lawfulness of the charges under the Constitution, the Sexual Offences Act 2006, and the judgment of the High Court in Nairobi High Court Petition No. 266 of 2015.
After a lower Kilifi Magistrates Court refused to drop the charges against both PAK and Mohammed, on December 2, 2020, the Center and RHNK filed a lawsuit against government officials in Malindi, Kilifi County.
On March 24, 2022, the High Court of Kenya announced its ruling, stating that:
- Abortion care is a fundamental right under the Constitution of Kenya and that the arbitrary arrest and prosecution of patients and health care providers seeking or offering such services is illegal.
- Protecting access to abortion impacts vital Constitutional values, including dignity, autonomy, equality, and bodily integrity.
- Criminalizing abortion under the Penal Code without Constitutional statutory framework is an impairment to the enjoyment of women’s reproductive rights.
- Police did not have the medical qualifications to determine whether PAK was in a condition to leave the clinic, that her arrest was inhuman and degrading, and that she should not have been interrogated without legal representation.
- Private communication between a patient and the health care provider is guaranteed and protected under the Constitution and other enabling laws
- The Kenyan parliament must enact reforms, including abortion law and public policy framework that aligns with the Constitution.
“The Court has vindicated our position by affirming that forcing a woman to carry an unwanted pregnancy to term or to seek out an unsafe abortion is a gross violation of her rights to privacy and bodily autonomy,” said Evelyne Opondo, Senior Regional Director for Africa at the Center for Reproductive Rights.
Plaintiff(s): The Center for Reproductive Rights and the Reproductive Health Network Kenya (RHNK) on behalf of PAK and Salim Mohammed
Respondent(s): The Attorney General, the Director of Public Prosecutions, the Inspector General of Police, the Senior Principal Magistrate Kilifi
Center Attorney: Martin Onyango
- December 2, 2020: The Center and RHNK file lawsuit on behalf of PAK and Salim Mohammed seeking to affirm abortion as a fundamental right under the Constitution of Kenya.
- March 24, 2022: High Court of Kenya affirms abortion as a fundamental right under the Kenyan Constitution and directs Kenyan parliament to enact an abortion law and public policy framework that aligns with the Constitution.
- High Court of Kenya in Malindi Ruling in PAK and Salim Mohammed vs. the Attorney General and 3 others | 03.25.22
News on the Case:
- Kenyan High Court Affirms the Right to Abortion Under the Constitution and Directs Parliament to Enact Reforms | 03.25.22