Don't prosecute me, the law allows me to provide abortion services, medic argues in court

Gordon Akoyo is seeking a declaration that arrest and prosecution of a trained health professional who provides abortion services is unlawful and in violation of the Constitution.

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What you need to know:

  • Petitioner has challenged the charges against him, saying they are based on a mistaken belief.
  • Medic says his arrest, detention and prosecution amounted to abuse and psychological torture.

A clinical officer charged with the offence of providing abortion services has gone to court to challenge the legality of his arrest and prosecution.

Mr Gordon Akoyo is seeking a declaration that the arrest, detention and prosecution of him is illegal, arbitrary and in breach of the Constitution.

He also seeks a declaration that the arrest and prosecution of a trained health professional who provides abortion services is unlawful and in violation of the Constitution, the Health Act, the Sexual Offences Act and court precedents.

The petitioner stated that on September 5 last year, an unaccompanied minor, identified as ENM, arrived at a clinic with severe pain and heavy bleeding and asked for care, which he provided.

According to the petitioner, he received the minor at the age of 17 in his clinic, where she received emergency care, and upon examining her, came to the conclusion that the cause of the bleeding was severe menstrual bleeding and pain, or a miscarriage.

“While continuing to monitor ENM, electric power went out and the petitioner went to restore power. Upon the petitioner’s return to the examination room he found that she had left the facility without discharge,” the petition states.

Mr Akoyo says that on November 6 last year, he was summoned to Bamburi Police Station to record a statement regarding allegations of abortion.

The petitioner says that he was subsequently arrested and charged in Shanzu, where the court granted an application to detain him at Bamburi Police Station for five days for further investigation.
Mr Akoyo says he was produced in court on November 15, charged and released on cash bail of Sh200,000.

He has challenged the charges against him, saying they are based on a mistaken belief by the police and the Director of Public Prosecutions that he provided abortion services and that abortion care is absolutely illegal in the country without regard to the Constitution.

In his petition to the High Court in Mombasa, Mr Akoyo has sued the Director of Public Prosecutions, the Attorney General, the Inspector General of Police and the Senior Principal Magistrate of the Shanzu courts.

“The arrest and charge against the petitioner was made without any prior investigations into the alleged offence,” part of the petition states.

The petitioner claims that there was no inquiry on whether he was qualified and licensed to offer abortion care in line with the constitution, statutory and policy provisions and judicial precedents on abortion care in Kenya.

He adds that being arrested and detained for seven days on the alleged provision of abortion services, denied police cash bail and denying the opportunity to practice his trade and subsequent prosecution amounted to abuse and psychological torture.

“Arresting and charging the petitioner without regard to the constitution, statutes and prevailing judicial precedents on the law of abortion in the country creates a chilling effect not only for him but other reproductive healthcare providers across the country and limits their ability to fulfil their professional and constitutional obligations,” the petition states.

He argues that lack of clarity on the implementation of Article 26 (4) of the constitution has created fear and confusion among healthcare professionals, including himself, on the status of abortion in the country and violates the right to equality and freedom from discrimination.

The Article in question, under the Right to Life, states that "Abortion is not permitted unless, 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."

Mr Akoyo is also seeking an order quashing the charge sheet against him at the Shanzu Law Courts.

Furthermore, he wants a permanent injunction issued barring the DPP from prosecuting any health-trained professional providing abortion care as stipulated under Article 26 (4) of the constitution and the Health Act.

The High Court on Wednesday suspended the hearing of the case against Mr Akoyo at the Shanzu Law Courts pending the hearing and determination of his petition.

The case will be mentioned on July 29 for parties to highlight their submissions.