26.09.2023 (PRESS RELEASE) Nairobi – Yesterday, the Chief Magistrates Court in Makadara fully acquitted Samson Mwita, licensed health care provider, and Grace Wanjiku, a mother of an adolescent girl, on all charges of procuring abortion care. The case dismissal affirms that abortion care is a fundamental right under the Constitution of Kenya and aligns with earlier court rulings declaring that arrest and prosecution of patients and providers is illegal.
Mwita and Wanjiku were arrested and charged in September 2018 when police stormed the health facility where Wanjiku’s 16-year-old daughter was being treated by Mwita for pregnancy related complications following a sexual assault as a minor.
Under the charges of procuring an abortion, Mwita and Wanjiku faced up to 14 years imprisonment under section 158 of Kenya’s Penal Code—but the Court determined that the prosecution presented no evidence to sustain the charges. Following this acquittal, neither Mwita nor Wanjiku can be charged again for the same allegations.
“This case was about defending the rights of all Kenyan women, girls, and qualified health care providers to access and provide safe abortion within the protections provided by the Kenyan Constitution,” said Martin Onyango, Associate Director of Africa Legal Strategies for the Center for Reproductive Rights. “After living under the shadow of prosecution for five long years, our clients, Mwita and Wanjiku, have finally received release from unjust charges that have affected every facet of their lives. No mother or health care provider should be treated as criminals for protecting the rights of an adolescent.”
The accused persons in the case, Republic v. Samson Mwita & Grace Wanjiku, were represented by the Center and the Reproductive Health Network of Kenya (RHNK).
Article 26(4) of the Constitution of Kenya protects abortion as a fundamental right guaranteed when life or health, including mental health, are at risk, and in cases of sexual assault. Further, in 2022, the High Court of Kenya in Malindi ruled that arbitrary arrest and prosecution of patients and health care providers seeking or offering abortion services is illegal in the case, PAK, and Salim Mohammed v. Attorney General et al. (2022).
While dismissal of this case sends a clear message affirming abortion as a health care right in Kenya, abortion is still almost unobtainable in Kenya.
“The ongoing unjust prosecutions of health care providers in Kenya create a chilling effect on the provision of abortion services due to fear of arrest and prosecution. When providers see their colleagues arrested and prosecuted, they fear for their own freedom and careers,” said Nelly Munyasia, Executive Director of Reproductive Health Network of Kenya (RHNK). “This ruling marks a historic moment for the health care providers in our network, who are committed to providing reproductive health care that respects the rights and dignity of women and girls.”
The defense in Republic v. Mwita & Wanjiku is one in a set of strategic litigation cases that is building a body of jurisprudence guaranteeing access to safe and legal abortion in Kenya that includes PAK and Salim Mohammed v. Attorney General et al. and FIDA-Kenya and Others v. Attorney General and Others (2019), in which 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.
Salima Namusobya, Senior Regional Director for Africa at the Center said, “We firmly believe that every person has the right to make decisions about their own body including the right to access safe and legal abortion services when needed. This ruling aligns with international human rights standards and underscores the importance of protecting and promoting sexual and reproductive health rights for all individuals. We at the Center for Reproductive rights remain committed to advancing reproductive rights as fundamental human rights across the African continent. We extend our sincere gratitude to all the legal counsel who have tirelessly worked towards this crucial decision.”
In 2003, the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, known as the Maputo Protocol, made history as the first legally binding international human rights instrument to explicitly guarantee the right to legal abortion. Article 14(2)(c) of the Protocol binds State Parties to allow abortion in cases of sexual assault, rape, and incest; where the pregnancy poses a risk to the pregnant person’s life or physical or mental health; and in cases of certain fetal diagnoses. Along with 43 other States, Kenya has ratified the Maputo Protocol.
On the 1st of September 2018, following an alleged public tip, police stormed a Medical Centre where an adolescent girl had been presented with sharp abdominal pains related to pregnancy complications following a sexual assault. The police went ahead to arrest and detain Mwita, the proprietor at the clinic, and Wanjiku, mother of the adolescent girl, on accusations of attempting to procure an abortion for Wanjiku’s daughter who was 16 years old at the time.
As a trained health professional recognized under the laws of Kenya, Mwita had diagnosed the adolescent girl with a pregnancy complication which threatened her physical health and went ahead to treat her. Furthermore, 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 she was carrying was a result of sexual violence and she was therefore eligible to access abortion services by virtue of Article 26(4) of the Kenyan Constitution and Article 14 (2) (C) of the Maputo Protocol.
The adolescent girl refused to testify against her mother and asked that the case be withdrawn through her Center attorney. The director of public prosecutions turned down the request to withdraw the prosecution of Mwita and Wanjiku.
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