Legal status: Is abortion fully illegal in Kenya?

A simple search on Twitter about the status of abortion in Kenya leaves one confused. Some Twitter users call for its legalisation while others oppose it.

Here is to understanding the legal status of abortion in Kenya.

Kenya had before the enactment of the Kenyan Constitution in 2010, allowed abortion for survivors of rape and defilement, explains Martin Onyango, Associate Director, Legal Strategies for Africa at the Centre for Reproductive Rights.

Section 35(3) of the Sexual Offences Act (2006) accorded the Minister for Health the responsibility of prescribing circumstances under which a victim of a sexual offence may at any time access treatment in any public hospital or institution.

This gap was filled in 2009 when the then Ministry of Public Health and Sanitation unveiled National Guidelines on Management of Sexual Violence in Kenya that dictated compassionate treatment and appropriate referral of a woman who wanted to terminate a pregnancy resulting from rape.

These guidelines were later, in 2014, updated to align with the 2010 Constitution, which under Article 26(4) on right to life permits abortion only 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.”

Health Act (2017) defines health as a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.

Read also: US abortion law decision draws attention to women’s rights in Africa

In the same year, the country backtracked on its progress to protecting women’s rights to access abortion.

The Ministry of Healthwithdrew Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya, which had been introduced in 2012.

The document guided health professionals on how, when, and where to conduct abortion.

It allowed safe abortion to be performed by a trained and skilled health professional in health facilities that met minimum standards.

It presumed that by terminating the pregnancy, the providers would be acting in “good faith” and within the tenets of medical ethics of preventing harm.

It defined a trained health professional as a registered medical practitioner, clinical officer, nurse, and midwife who has acquired the relevant skills for decision-making and provision of the service.

Centre for Reproductive Rights, however, successfully challenged the withdrawal at the Nairobi High Court of Kenya.

The court ruled nullified the memo and letter that withdrew the guidelines.

Reproductive Health Network Kenya Executive Director Nelly Munyasia says while Kenya has made progress in establishing laws that protect women and girls’ access to sexual and reproductive health and rights, they are yet to fully enjoy their fruits.

“The major problem we have in this country is the implementation of laws, policies, guidelines, and commitments,” she says.

“It is high time that we hold the government accountable.”

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