Kenyan High Court Affirms the Right to Abortion Under the Constitution and Directs Parliament to Enact Reforms

In a victory for Kenyan women, girls, and health care providers, the High Court of Kenya in Malindi affirmed that abortion care is a fundamental right under the Constitution of Kenya and that arbitrary arrests and prosecution of patients and health care providers for seeking or offering abortion services are illegal. The Court also directed the Kenyan parliament to enact an abortion law and public policy framework that aligns with the Constitution.

The ruling came in PAK and Salim Mohammed v. Attorney General et al., a case brought by the Center for Reproductive Rights and the Reproductive Health Network Kenya (RHNK) in 2020 against government officials in the town of Malindi and the county of Kilifi.

The case involved the right of a minor to receive reproductive care, the right of a clinician to treat her, and the constitutional obligations of Kenya under its Constitution.

“Today’s victory is for all women, girls, and health care providers who have been treated as criminals for seeking and providing abortion care,” said Evelyne Opondo, Senior Regional Director for Africa at the Center for Reproductive Rights. “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.”

Specifically, the Court’s ruling affirmed that:  

• Abortion care is a fundamental right under the Constitution of Kenya and that arbitrary arrests and prosecution of patients and health care 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 the penal code without Constitutional statutory framework is an impairment to the enjoyment of women’s reproductive rights.

Minor and Clinician Arrested and Detained

“PAK,” a minor, experienced pregnancy complications and sought emergency care at the nearby Chamalo Medical Clinic. Salim Mohammed—a trained clinical officer qualified to provide legal abortion care—treated her after determining she had lost her pregnancy. Both PAK and Mohammed were arrested and detained by the police—she was accused of attempting an abortion; he was accused of providing her a medication abortion. PAK was remanded to juvenile prison for one month as she sought to secure funds for bail, which were eventually provided by the Center and RHNK. Mohammed was detained for one week before posting bail.

After a lower Kilifi Magistrates Court refused to drop the charges against both PAK and Mohammed, the Center and RHNK brought the case to the High Court.

In today’s ruling, the Court found that private communication between a patient and the health care provider is guaranteed and protected under the Constitution and other enabling laws, except for where the disclosure is consented to by the patient or is in the public interest with limitation as provided for in the Constitution. The Court also found that police did not have the medical qualifications to determine whether PAK was in a condition to leave the clinic, that her arrest was inhuman and degrading, and that she should not have been interrogated without legal representation.

Women, Girls and Health Care Providers Face Harassment and Intimidation—Even Though the Constitution Recognizes Health Care as a Right

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. But facing strong opposition—often by the police—the government has failed to update its penal code to align with its Constitution. A decade after the Constitution was enacted, abortion care remains almost unobtainable throughout the country.

As a result, women and girls still face harassment, wrongful arrest and prosecution and are discouraged from seeking care. Health care providers—also harassed and intimidated—are reluctant to offer safe abortion care, even on an emergency basis.

Most impacted are young people and women and girls living in poverty and in rural areas. Girls are often forced to become parents at a young age, which prevents them from completing their schooling and pursuing their life goals. In addition, unsafe abortion remains a leading cause of maternal morbidity and mortality in Kenya.

“Today’s judgement means that women and girls across the country will be able to access reproductive health care—free of threats and harassment,” said Martin Onyango, the Center’s Head of Legal Strategies for Africa. “In addition, clinics will be legally protected to offer legal abortion and post-abortion services.”

Read more:

Ruling by the High Court of Kenya in Malindi, PAK and Salim Mohammed vs. the Attorney General and 3 others, 03.24.22