Center Continues Work to Enforce the Constitutional Right to Abortion in Kenya
Hearing being held today in case concerning the unjust prosecution of a health care provider and the mother of an adolescent girl treated for serious pregnancy complications.
Although Kenya’s 2010 Constitution established the right to health care including access to reproductive health care, abortion care has remained almost unobtainable in most of the country, especially in rural areas. In addition, women, girls, and health care providers continue to face harassment, arrest and prosecution when attempting to access or provide abortion care.
On September 25, the Center for Reproductive Rights and its national partner, the Reproductive Health Network of Kenya (RHNK) are in court in Nairobi to defend a health care provider and the mother of an adolescent girl who was treated for dangerous pregnancy complications. The provider and mother have been charged in the case, Republic v. S.M. & Another, with procuring an abortion for the girl—a charge that carries a sentence of up to 14 years imprisonment under Kenya’s penal code.
“These prosecutions are flagrant violations of Kenya’s Constitution and high court rulings that have affirmed abortion as a fundamental right,” said Prudence Mutiso, the Center’s Senior Legal Adviser for Africa. “Unjust arrests and prosecutions create a chilling effect, making women and girls afraid to seek life- and health-saving abortion care and health professionals afraid to provide such needed care.”
Despite Constitutional Guarantees Backed by Kenyan Courts, Abortion Remains an Offence Under the Penal Code
The Center and its partners have secured groundbreaking victories in which Kenyan High Courts have affirmed the right to reproductive health care, which includes abortion and post-abortion care, as well as access to emergency medical treatment.
The rulings include:
- PAK and Salim Mohammed v. Attorney General et al. (2022): The High Court of Kenya in Malindi affirmed that abortion is a fundamental right under the Constitution and ruled that the arbitrary arrest and prosecution of patients seeking abortion care or health care providers offering abortion services was illegal. The Court also directed the Kenyan Parliament to enact an abortion law and public policy framework that aligns with the Constitution.
- FIDA-Kenya and Others v. Attorney General and Others (2019): The High Court of Kenya in Nairobi ruled that victims of sexual violence can access safe and legal abortion within the provisions of the Constitution.
Despite the rulings, the government has failed to update its penal code to align with its Constitution—in part due to strong opposition, often by the police, religious groups, and others. As a result, abortion remains a crime in the Kenyan penal code.
Read more.
Abortion in Kenya
The Center’s work to advance abortion rights in Kenya since the adoption of its 2010 Constitution.
After Seeking Care for Pregnancy Complications, Adolescent Girl and Provider Arrested, Detained and Prosecuted
After the adolescent girl experienced sharp abdominal pains related to pregnancy complications and sought treatment at a medical center, police stormed the facility on September 1, 2018, after allegedly receiving a tip about the matter. The police arrested and detained S.M., the proprietor at the clinic, and G.W., the mother of the adolescent girl, on accusations of attempting to procure an abortion for G.W.’s 16-year-old daughter.
A trained health professional aware of the Kenya’s laws, S.M. had diagnosed the adolescent girl with a pregnancy complication that threatened her physical health and proceeded to treat her. He also knew that under current Kenyan law, any sexual activity with a child (defined as anyone under the age of 18), with or without consent, is considered an offence under the Sexual Offences Act. By law, the pregnancy the adolescent was carrying was a result of sexual violence and she was therefore eligible to access abortion services.
The adolescent girl has refused to testify against her mother and requested, through her attorney at the Center, that the case be withdrawn. The request was rejected by the Director of Public Prosecutions. The girl still refuses to testify and has not attended any of the hearings in the case since 2018.
In advance of the upcoming hearing, to be held in Makadara Law Courts, the prosecution issued a summons compelling the adolescent girl to attend court and is expected to present her as its first witness.
“Our clients are being treated like criminals for protecting the constitutional rights of an adolescent girl facing pregnancy complications that endangered her health,” said Martin Onyango, the Center’s Associate Director, Africa Legal Strategies. “And besides these unjust prosecutions, the misinformation and disinformation that have been spread around this case have caused undue harms to them and their families.”
Abortion Criminalization Leads to More Unsafe Abortions
Due to the continued criminalization of abortion in Kenya and threats of harassment, arrest and prosecution, women and girls are discouraged from seeking abortion care. Health care providers—who face the same threats—are reluctant to offer safe abortion care, even on an emergency basis.
Most impacted are young women and girls living in poverty and in rural areas, where access to quality health care services is rare. In rural areas and in informal settlements, health care services are provided by the government at public health facilities at subsidized rates, but most facilities are understaffed and underfunded and lack the necessary medication and equipment to effectively treat the large number of patients seeking services.
Even in cases of sexual assault, girls are often forced to carry pregnancies and give birth at an early age, preventing them from completing their schooling and pursuing their life goals.
Criminalization also forces some women and girls to seek unsafe abortion—which remains a leading cause of maternal morbidity and mortality in Kenya. Unsafe abortion is responsible for the deaths of nearly 2,600 women and girls in the country every year, which translates to seven deaths every day.
“Women and girls must be able to exercise their sexual and reproductive health rights—not only because it is their human right to do so, but also because it is a public health imperative,” said Onyango. “We are hopeful that this case will show again why the government of Kenya must reform its penal code and adhere to the constitutional obligations it made to its people over a decade ago.”
Watch for more news on this important case as it progresses.