In a landmark ruling today, the High Court of Malindi strongly affirmed 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.
Specifically, the Court ruled that:
- Abortion care is a fundamental right under the Constitution of Kenya and that arbitrary arrests and prosecution of patients and healthcare 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 Penal Code without Constitutional statutory framework is an impairment to the enjoyment of women’s reproductive right
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.
The court case in question, which was filed in November 2020, involved PAK, a minor aged 16 from Kilifi County, after she experienced pregnancy complications and sought medical care at a nearby clinic where a trained clinical officer attended to her. Upon examining her, the clinical officer determined that she had lost a pregnancy and proceeded to provide her with the needed care. While still receiving treatment at the facility, police officers stormed the clinic, confiscated PAK’s treatment records and arrested her, along with the clinical officer. The two were taken to Ganze Police Patrol Base where PAK couldn’t access further medical care for two days and was forced to sign a statement which was contrary to PAK’s description of what had happened. The police also forced PAK to undergo another medical examination at Kilifi County Hospital to obtain evidence to prove an alleged offence of abortion. The clinical officer was detained for one week while PAK was remanded to a juvenile remand for more than a month as she sought to secure the cash bail for her release.
The court directed parliament to enact an abortion law and public policy framework that aligns with the Constitution. Additionally, the court found that private communication between a patient and the healthcare provider is guaranteed and protected under the Constitution and other enabling laws, save for where the disclosure is consented to by the patient or is in the public interest with limitation as provided for in the Constitution. In its decision, the court found that PAK was recovering from medical procedure and police did not have the medical qualifications to determine whether she was in a condition to leave the clinic regardless of her admission status at the said clinic. Additionally, the court found that PAK’s arrest was inhuman and degrading, and being a minor, she ought not to have been interrogated without legal representation.
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. 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. Further, the continued restrictive abortion laws inhibit quality improvement possible to protect women with unintended pregnancies.”
Nelly Munyasia, Executive Director of Reproductive Health Network Kenya (RHNK), a network of reproductive health providers whose member was the second petitioner in this case, welcomed the court’s decision. “Many qualified reproductive healthcare practitioners continue to be arrested, detained, and prosecuted for providing legal medical care. The court’s decision confirms that prosecution against health providers cannot hold where the prosecution has not established that; the health professional in question was unqualified to conduct the procedure; the life or health of the woman was not in danger or the woman was not in need of emergency treatment,” Ms. Munyasia said.
The petitioners were represented by the Center for Reproductive Rights advocates Martin Onyango, Head of Legal Strategies for Africa, and Prudence Mutiso, Legal Advisor for Africa.
Center for Reproductive Rights: [email protected]