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. Despite these legal protections, law enforcement officers regularly raid clinics, detaining providers and patients and confiscating essential medical equipment.
In one such case at a Nairobi medical facility in October 2020, a woman seeking emergency post-abortion care and a registered nurse who treated her were arrested and detained after police officers raided the facility and accused them of illegally procuring and providing abortion services.
The Center for Reproductive Rights and its partner, Reproductive Health Network Kenya (RHNK), provided legal representation to the nurse and patient after the Directorate of Criminal Investigations sought to charge them with a felony under Section 158 of the Kenya Penal Code. As a result, the Director of Public Prosecutions dropped the intended charges and the case at the Makadara Law Courts has since been terminated. The cash bail that had been deposited with the police has also been refunded.
Evelyne Opondo, Senior Regional Director for Africa for the Center, welcomed the decision by the Office of the Director of Public Prosecutions to close the case, saying, “The decision to close the case affirms the protection of reproductive health rights under Article 43(1)(a) of the Kenyan Constitution, which guarantees the right to access the highest attainable standard of health, including reproductive health care.”
Harassment and Detention by the Police
Because the government has failed to update its Penal code to align with the Constitution, Kenyan-based reproductive health rights advocacy groups say police still use outdated provisions of the 1963 Penal Code to harass abortion providers and patients.
The nurse who was arrested in the case recalled how the police “came in, many of them, and started ransacking every corner, presumably looking for evidence, and taking pictures of me. They confiscated an examination bed, assorted instruments, books, emergency cabinet, assorted cash expenses booklets, a medical examination book, assorted medical certificates and an abortion services daily register. They then bundled me into a vehicle and drove me to the police station.”
The patient, a 20-year-old woman who sought post-abortion care, was also detained and spent four days in police custody despite needing urgent medical care. While in custody, the court allowed police officers to subject her to further medical examinations. Both the patient and the nurse were released after posting bail.
Enforcing Kenya’s Constitutional Obligations
Kenya’s Constitution guarantees the right of women and girls to access abortion services when a pregnancy poses a risk to physical, mental, or social health, including when the pregnancy resulted from sexual violence. Yet more than a decade after the Constitution was enacted, abortion care remains almost unobtainable throughout the country.
Martin Onyango, Head of Legal Strategies for Africa for the Center, attributes the ongoing problem to failure by the police, the prosecutor’s office, and courts to acknowledge the changes introduced under the Constitution, including the rights to reproductive health for women and girls, and legislation regulating the provision of care.
Onyango says there is a need to educate police, prosecutors, judges, and magistrates on the changed legal landscape around access to healthcare, including abortion services. “The Office of the Director of Public Prosecutions is where the buck stops,” he said. “We need to make prosecutors aware that the charges they are framing are against the law.”
Unlawful Arrests and Harassment Prevent Kenyans from Accessing Safe Abortion Care
Nelly Munyasia, Executive Director of Reproductive Health Network Kenya, says the flaws in criminal justice are partly to blame for rising cases of unsafe abortions and related deaths in Kenya. A 2012 study by the African Population and Health Research Center (APHRC) and the Ministry of Health found that seven girls and women died every day – 2,600 every year – in the country due to unsafe abortions.
Munyasia says the number is likely much higher now, citing recent reports of increased early pregnancies and cases of girls accessing abortion outside of medical contexts during the Covid-19 pandemic. An estimated 77 percent of women who sought post-abortion care were treated for moderate to severe complications, including sepsis, shock, and organ failure.
Most impacted are young people and women and girls living in poverty and in rural areas. “This case is a testament that perennial intimidation, harassment, arbitrary arrests and prosecution of licensed reproductive healthcare practitioners and patients for providing and seeking services within the law is an illegality, and must stop,” said Munyasia.
High Court of Kenya to Rule on Another Abortion Rights Case Brought by the Center and its Partner
Another case involving the right of a minor to receive abortion care—and the right of a clinician to provide that care—is currently before the High Court of Kenya in a case brought by the Center and RHNK. In this case, the Center and RHNK are asking the High Court in Malindi to affirm that abortion care is a fundamental right under the Constitution of Kenya and rule that arbitrary arrests and prosecution of patients and health care providers for seeking or offering such services is illegal. A ruling is expected this year.