Report: Lives at stake as more Kenyan women and girls opt for unsafe abortion despite constitutional protections

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The publication highlights ineffective implementation of Article 26(4) of the Constitution, inadequate application of the provision in adjudicating abortion cases, and entrenchment of abortion stigma in criminal justice system
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The number of women and girls from poor and marginalized communities seeking unsafe abortion services from quacks is on the rise, according to a report released today on the state of access to safe abortion in Kenya. The report by Center for Reproductive Rights (CRR), reveals that the opinion of a trained health professional when it comes to access to safe abortion, despite being protected in Article 26(4) of the constitution, is not only disregarded but also suppressed by the current legal mechanisms.

Some of the ways the constitutional provisions for reproductive health rights are either ignored, sidelined or rendered ineffective include: When courts do not explicitly apply Article 26(4) to its full extent during proceedings or determinations of abortion cases; when abortion cases are concluded without full investigation evidence presented in judicial proceedings; and when accused women and girls are ‘publicly lynched’ and branded criminals without investigations into the circumstances surrounding  terminations of their pregnancies, reveals the report titled A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution.

“The persisting stigma and false narratives about abortion in the public domain and criminal justice system has put the lives of more Kenyan women and girls on the line,” said Evelyne Opondo, Senior Regional Director for Africa, Center for Reproductive Rights.  “They are afraid of seeking safe and legal abortion for fear of prosecution even in situations where terminated pregnancy is the result of rape. Abortion stigma violates the rights of women and girls to access health, psychosocial support, and freedom from cruel, inhumane, and degrading treatment. “

Article 26(4) provides for right to abortion where, in opinion of a trained health professional there is need for emergency treatment, or life or health of pregnant woman or girl is in danger. Nurses, clinical officers, midwives, doctors and obstetrician gynecologists are trained health professionals permitted by Constitution 2010. Unsafe abortion is responsible for the deaths of nearly 2,600 women and girls in Kenya every year, which translates to seven deaths every day. This report comes in the wake of media reports of increased incidents of gender based violence, rape, and women opting for back alley abortions as a consequence.

The launch of the report coincides with the marking of 10th anniversary since promulgation of the Constitution. It comes on the heels of sustained calls by civil society to banish attempts at watering down constitutional provisions for safeguarding lives and health of Kenyan women and girls. The Report also highlights current legal frameworks on abortion before and since the promulgation of the current constitution, the implementation of Article 26(4) in the Judiciary, the impact of enforcement of abortion laws and constitutional cases on Article 26(4).

  • Pre-2010: Penal Code did not include provisions when abortion could be considered lawful. Permitted surgical operation on an unborn child if the operation is reasonable to perform for the preservation of the woman’s life
  • Post-2010: Article 26 (4) paved way for public education, sensitization, awareness and information on access to lawful abortion, provision of safe abortion and comprehensive reproductive health services to expectant women. Alignment of the Penal Code with the Constitution
  • Enforcement (2010-2019):47% of cases involved charges of concealing birth, 22% of cases involved charges of attempt to procure abortion
  • Constitutional case: Centered on plight of JMM, a young girl whose defilement, pregnancy, unsafe abortion, failure to receive quality health care, and ultimate death was connected to the Ministry of Health’s unlawful withdrawal of the Standards and Guidelines and the National Training Curriculum

“Safeguarding access to safe abortion and abortion-related care within context of all relevant Kenyan laws requires commitment by State agencies,” observed Atieno Odhiambo, Technical Lead for Africa, Center for Reproductive Rights. “Women and girls of Kenya expect more from the Director of Public Prosecutions, Chief Justice, Inspector General of Police, Members of Parliament and Ministry of Health.” 

Some of the recommendations the report makes towards ending violations in prosecution of abortion-related offences and toward enhanced legal protection for access to safe abortion include:

  • Train police and prosecutors on interpretation and application of the constitutional provisions on abortion to guide their investigations and prosecution of such cases
  • Initiate the process of repealing sections 158 – 160 of the Penal Code to ensure legal clarity and seal the legal loopholes that fuel intimidation, harassment and extortion of women, girls and reproductive health providers
  • Reinstate Standards & Guidelines on reducing maternal mortality and morbidity from unsafe abortion and National Training Curriculum for management of unintended, risky and unplanned pregnancies.

ABOUT KENYA ABORTION REPORT:  The publication is based on an in-depth analysis of 29 abortion related charges and offences in six High Court stations in Kiambu, Machakos, Nairobi and Nakuru Counties. It documents interviews with sexual reproductive health medical experts, service providers, women and girls who have interacted with law enforcement officers and courts. It aims at calling on State actors to operationalize bill of rights and facilitate access to sexual and reproductive health and rights.

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MEDIA CONTACT: Kennedy Arthur Wekesa, KWekesa@reprorights.org