Center to Defend Landmark Decision in Kenya Guaranteeing Abortion Access for Survivors of Sexual Violence

In 2019, the High Court of Kenya affirmed that the Kenyan Constitution guarantees survivors of sexual violence access to safe and legal abortion care. The historic decision came in a case brought by the Center for Reproductive Rights and its partners on behalf of the family of JMM, a 14-year-old girl who was sexually assaulted, became pregnant, and died from complications of an unsafe abortion.

The Center is expected to be at the Kenya Court of Appeal in the coming weeks to defend that judgment from anti-rights groups that are asking the Court to overturn it. In appealing the High Court’s decision in the case, FIDA-Kenya and others v. Attorney General and others, the Kenyan Christian Professional Forum and the Kenya Attorney General argue that abortion is not a constitutional right.

The hearing date at the Court of Appeal— Kenya’s second highest court—has not yet been announced.

“The appeal of this landmark decision is not grounded in facts or the law,” said Martin Onyango, the Center’s Associate Director, Africa Legal Strategies, who will defend the decision at the Court of Appeal. “It is a ploy by anti-rights actors to roll back legal progress made on abortion rights in Africa—even for young girls who are living through the trauma of sexual violence.”

High Court Ruling Also Declared Withdrawal of Abortion Guidelines Unlawful

The High Court’s 2019 decision addressed the constitutional right to abortion for survivors of sexual violence and other women and girls, as well as the Kenyan Ministry of Health’s 2014 withdrawal of a policy document guiding health care providers on when and how they could provide safe and legal abortion and post-abortion care services.

In its judgment, the High Court: 

• Affirmed the legality of abortion under Kenya’s 2010 Constitution when the life and health of the pregnant woman is threatened. 
• Emphasized that the right to health includes complete physical, mental, and social wellbeing.
• Asserted that the Ministry’s action of withdrawing the policy document, “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 and violated the constitutional and human rights of survivors of sexual violence, including their right to health. 
• Awarded reparations to JMM’s mother. 

The Ministry’s withdrawal of the Standards and Guidelines created uncertainty for health care professionals about providing critical safe abortion services to survivors of sexual violence, putting the health and lives of girls and women at risk. 

“When a 14-year-old girl like JMM is denied essential health care after suffering sexual violence, we’ve failed not just in health care delivery but in our most fundamental obligation to protect children. We call upon the Court of Appeal to recognize that sexual violence survivors have a constitutional right to access safe and legal abortion services. Anything less perpetuates their victimization and contradicts Kenya’s own laws,” said Salima Namusobya, the Center’s Vice President, Africa. 

Anti-Rights Movement Pushes Back Against High Court Decision 

The parties appealing the 2019 High Court decision argue that the Constitution’s health protection does not encompass abortion, even in cases of sexual violence. They also claim that fetuses have rights and that such rights would usurp the rights of pregnant girls and women. The reparations granted to JMM’s mother—reparations that have yet to be paid—are also opposed by the parties appealing. 

“We are committed to prevailing against this baseless appeal so all Kenyan women and girls can exercise their constitutional right to abortion care when their health and safety are jeopardized,” said Namusobya. 

JMM’s Story 

In 2014, 14-year-old JMM was sexually assaulted and became pregnant. Unable to access safe and legal abortion care, JMM obtained an abortion outside the health care system. Following the unsafe abortion, she experienced severe complications and sought medical attention, visiting four health facilities. Due to the facilities’ insufficient infrastructure, the health care providers were unable to manage her complications. JMM suffered from excessive bleeding and developed sepsis and kidney failure.

Her death in 2018—determined to be the result of these consequential health complications—should have been prevented with adequate, emergency post-abortion care.