Huge win for women, girls in court decision on abortion

The High Court has directed Parliament to enact a law on termination of pregnancy and a public policy framework for exceptions as stipulated in the Constitution.

Justice Reuben Nyakundi made the order after declaring that the right to abortion is fundamental under the Constitution, though not absolute. “In my opinion, there exists a direct link between a woman’s decision to terminate a pregnancy with the constitutional right to privacy since a matter concerning abortion should be left primarily to the woman, who, in any circumstance instructive of the spirit of Article 26(4) of the Constitution, bears the greatest responsibility should she decide to keep or terminate the pregnancy."

That is to say, the woman should have the choice and ultimate decision carefully explored by a trained medical provider as to whether to terminate the pregnancy or continue with the same.

“This is the ultimate exercise and enjoyment of the freedom of choice and the right to privacy,” Justice Nyakundi said.

The judgment is a major score for women, girls and healthcare providers.

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

Article 26

The court also held that arbitrary arrests and prosecution of patients and healthcare providers for seeking or offering abortion services is illegal.

"The right to abortion is fundamental but cannot be said to be absolute in light of Article 26(4) of the Constitution. The language in the sections of the Penal Code looked at from the legal lens of the Constitution there is a lacuna on information regarding the termination of pregnancies," said Justice Nyakundi.

He urged Parliament to fast-track legislation that provides for access to safe abortion and to actualise the provisions of Article 26(4) of the Constitution on the right to life. Article 26(4) says: “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.”

Judge Nyakundi observed that although the law does not prevent women from having abortion, it severely undermines the quality of care they receive or forces them to resort to unsafe and clandestine means to terminate unwanted pregnancies.

The judgment stemmed from a case filed on November 2020 by a 16-year-old girl from Kilifi County.

Needed care

The minor, identified as PAK, experienced pregnancy complications and sought medical care at a nearby clinic where a trained clinical officer attended to her. Upon examining her, the clinical officer determined that she had lost a pregnancy and proceeded to provide her with the needed care. But while still receiving treatment at the facility, police officers stormed the clinic, confiscated PAK’s treatment records and arrested her, along with the clinical officer.

They were taken to Ganze Police Patrol Base where PAK could not access further medical care for two days and was forced to sign a statement, contrary to her description of what had happened. The police also forced her to undergo another medical examination at Kilifi County Hospital to obtain evidence to prove an alleged offence of abortion. The clinical officer was detained for one week, while PAK was remanded for more than a month as she sought to secure bail for her release.

Mr Nyakundi quashed her prosecution after finding that the charges and proceedings were unfounded as there was no strong evidence that the abortion was conducted outside the threshold of the Constitution.

Public interest

Additionally, the court found that private communication between a patient and a healthcare provider is guaranteed and protected under the Constitution and other enabling laws, save 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 further found that PAK was recovering from a medical procedure and police did not have the medical qualifications to determine whether she was in a condition to leave the clinic regardless of her admission status.

Nelly Munyasia, the executive director of Reproductive Health Network Kenya, whose member was the second petitioner, also welcomed the decision. “The decision confirms that prosecution against health providers cannot hold where the prosecution has not established that the health professional was unqualified to conduct the procedure, the life or health of the woman was not in danger or the woman was not in need of emergency treatment,” she said.

"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," she stated.

Emergency treatment

Ms Nelly Munyasia, Executive Director of Reproductive Health Network Kenya, a network of reproductive health providers whose member was the second petitioner in the case also welcomed the court’s decision.

“Many qualified reproductive healthcare practitioners continue to be arrested, detained, and prosecuted for providing legal medical care. The court’s decision confirms that prosecution against health providers cannot hold where the prosecution has not established that the health professional in question was unqualified to conduct the procedure, the life or health of the woman was not in danger or the woman was not in need of emergency treatment,” said Ms Munyasia.

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