No longer treated as criminals
In a groundbreaking ruling delivered March 25, the High Court in Malindi affirmed that abortion care is a fundamental right under the Kenyan constitution. The case, which was filed in Nov. 2020 by the Center for Reproductive Rights and Reproductive Health Network Kenya, involved a 16-year-old from Kilifi County.
The girl had sought medical care after she experienced pregnancy complications. Upon examination, the clinical officer determined she had lost the pregnancy and proceeded to provide her with needed care. In the middle of her medical treatment, police officers stormed the clinic, confiscated her treatment records and arrested her along with the clinical officer.
The two were taken to Ganze Police Patrol Base where the girl could not access further medical care for two days. The police forced her to sign a false statement and undergo an examination at Kilifi County Hospital with the sole purpose of finding evidence of an alleged abortion. The clinical officer was detained for one week and the girl for more than a month.
The Constitution of Kenya, 2010, permits abortion if, in the opinion of a trained health professional, there is need for emergency treatment or the life or health of the pregnant person is in danger. However, Kenyan women and girls continue to face discrimination while seeking legal reproductive health care due to confusing conflicts with subsidiary laws in Kenya—the 1963 Penal Code criminalizes all abortion care, including those allowed under the Constitution 2010.
“Many qualified reproductive healthcare practitioners continue to be arrested, detained, and prosecuted for providing legal medical care.”
In the March ruling, the High Court of Malindi strongly affirmed that abortion care is a fundamental right under the Constitution of Kenya and that:
- Arbitrary arrests and prosecution of patients and health-care providers seeking or offering abortion care is illegal.
- Protecting access to abortion aligns with vital constitutional values .
- Criminalizing abortion under the penal code without a constitutional statutory framework violates women’s reproductive rights.
“This victory is for all women, girls and health-care providers who have been treated as criminals for seeking and providing abortion care.”
Ipas applauds the Center for Reproductive Rights and Reproductive Health Network Kenya for standing up for the rights of both health-care providers and women and girls seeking abortion care services in Kenya. Ipas calls upon the National Assembly together with the Ministry of Health and the Attorney General to develop, enact and implement abortion laws and policy frameworks that align with the Constitution.
“As an organization working toward reproductive justice, Ipas Africa Alliance welcomes the decision and directions by the High Court of Malindi. Sexual and reproductive health care is important to the health and well-being of women and girls in Kenya; restricting access to services denies people the right to essential health-care services. Access to reproductive health care, including abortion, is a human right,” states Dr. Angela Akol, director of Ipas Africa Alliance. “The ruling is a great step forward as it shows the court acknowledges that reproductive health services, including abortion, are essential. We call upon the government to fully implement the ruling to show its commitment to fulfilling the human rights of all citizens.”