The 2010 Kenyan Constitution marked a positive step for reproductive rights in the country since it recognized 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. The Constitution outlined circumstances under which abortion is permitted: if, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.
But more than a decade later, Kenya’s penal code has yet to be updated to reflect those constitutional rights. As a result, Kenyan women and girls continue to 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.
In an op-ed for the Daily Nation titled “Stop harassment of women, girls seeking abortion care,” Evelyne Opondo, Senior Regional Director for Africa at the Center for Reproductive Rights, calls on the Kenyan government to align the penal code with the 2010 Constitution.
“There is outright failure to acknowledge that the 2010 Constitution redefined the legal context for accessing abortion care. The government still applies the archaic 1963 Penal Code that blatantly criminalises all abortion care, including the legally permissible exceptions,” said Opondo in the op-ed published February 4.
Abortion Criminalization Erodes Fundamental Rights, Harms Health and Generates Huge Costs to Society
Opondo states that the criminalization of access to abortion care “not only erodes the fundamental right to highest attainable standards of reproductive health care, but also creates a chilling effect among providers who shy away from offering safe, legal abortion care to millions of Kenyan women and girls in need of such essential health services.”
Abortion criminalization places the health and lives of Kenyans at stake, with unsafe abortion causing the death of 2,600 girls and women in the country each year. “The compounding consequence is the increased cases of preventable maternal deaths and injuries from unsafe abortion,” said Opondo. “Prior to enactment of the 2010 Constitution, a report by the World Health Organization indicated that unsafe abortion accounted for 35 per cent of maternal deaths in Kenya — and it was the recognition of this very driver that contributed to constitutional provisions for safeguarding reproductive rights.”
Treating unsafe abortion complications generates huge costs to the Kenyan health system, as well. Opondo points out that it requires seven hours of healthcare personnel time to treat moderate unsafe abortion complications, and up to 12 hours to treat severe complications involving procedures such as pelvis abscess drainage or vaginal tear repair.
A Call to Action for the Kenyan Government
To reach solutions that protect the rights and lives of Kenyan women and girls, Opondo argues that the Kenyan government must “demonstrate political will” to update its penal code to align with the 2010 Constitution and “seal loopholes that pave way for harassment and extortion of providers and patients seeking abortion care.”
Kenyan institutions must also be properly trained and the federal government must work with other agencies to “ensure police and prosecutors are trained on interpretation and application of the constitutional provisions on abortion to prevent women and girls from being arbitrarily arrested and prosecuted for seeking healthcare protected by the Constitution.”