Enforcing Kenya’s Obligations to Provide Legal Abortion Services
The Constitution of Kenya guarantees the right of women and girls to access abortion services when, in the opinion of a health care professional, the pregnancy threatens the life and health of the pregnant person. In 2012, in order to implement this Constitutional provision, the Ministry of Health issued a Standard and Guideline for preventing and managing unintended pregnancies and the provision of post-abortion. The Guideline further set the standards for the audit, monitoring and evaluation of comprehensive abortion care in Kenya.
However, in 2013, the Ministry of Health issued memos arbitrarily withdrawing this Guideline and banning training of health care professionals on abortion services and the use of medication for abortions. These actions of the Ministry created an impediment to Kenyan women and girls’ access to safe abortion services as it left health care providers with no guidance and created confusion as to when they are legally allowed to provide abortion without fear of arrest and prosecution. The actions further reinforce stigma against abortion services.
In a groundbreaking decision rendered in 2019, in a case the Center for Reproductive Rights filed challenging the unlawful, irrational and arbitrary actions of the Ministry of Health, the High Court found that the government of Kenya has violated the rights of women and girls, including their rights to the highest standard of health, non-discrimination, and access to information, and the right to benefit from scientific progress.
The Court further upheld the Constitutional right to access abortion when there is a risk to the pregnant woman or girl's physical, mental, and social health, including when the pregnancy resulted from sexual violence.
Significantly, the Court affirmed that the government of Kenya has the obligation to ensure the availability of trained health care providers, essential medicines and equipment for the provision of abortion and post-abortion care in all public health facilities across the country.
This was the first case brought in Africa addressing abortion as a constitutional right, and it marks a critically important step towards improving reproductive health outcomes for Kenyan women.