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How did the Malindi Ruling affirm the right to abortion?
The Malindi High Court ruling in the case of PAK and Salim Mohammed v. Attorney General and Three Others (Malindi High Court Petition Number E009 of 2020) affirmed the right to abortion in Kenya by declaring that abortion care is a fundamental right under the Constitution of Kenya.
The ruling was a landmark decision that has significant implications for women's reproductive rights in Kenya. It protects patients and providers from arrest and prosecution for seeking and providing abortion services.
1. The Case
The case involved a minor, PAK, who sought abortion care from a clinical officer, Salim Mohammed. Both were arrested and charged with violating the Penal Code, which criminalizes abortion. The High Court, however, ruled that the arrest and prosecution were illegal, finding that the Penal Code's provisions on abortion were unconstitutional.
2. The Court's Reasoning
The court's reasoning was based on the following:
The Constitution of Kenya: The court held that the Constitution of Kenya guarantees the right to life, health, and bodily integrity. These rights, the court found, include the right to access safe and legal abortion care.
The Right to Privacy: The court also recognized the right to privacy, which includes the right to make decisions about one's own body, including decisions about whether or not to have an abortion.
The Right to Equality: The court found that the Penal Code's provisions on abortion discriminated against women and girls, as they disproportionately affected their ability to access safe and legal abortion care.
3. The Impact of the Ruling
The Malindi ruling has had a significant impact on the legal landscape in Kenya. It has:
Affirmed the right to abortion: The ruling has affirmed that abortion is a fundamental right under the Constitution of Kenya.
Protected patients and providers: The ruling has protected patients and providers from arrest and prosecution for seeking and providing abortion services.
Prompted calls for legislative reform: The ruling has prompted calls for legislative reform to align the Penal Code with the Constitution and to ensure that women and girls have access to safe and legal abortion care.
4. Case Laws
The Malindi ruling is not the first case in Kenya to address the issue of abortion. In 2015, the High Court in Nairobi ruled in the case of Reproductive Health Network Kenya v. Attorney General that the Penal Code's provisions on abortion were unconstitutional. However, the Malindi ruling is significant because it is the first time that a Kenyan court has explicitly declared that abortion is a fundamental right under the Constitution.
5. Conclusion
The Malindi ruling is a major victory for women's reproductive rights in Kenya. It has affirmed the right to abortion and has protected patients and providers from arrest and prosecution. The ruling has also prompted calls for legislative reform to ensure that women and girls have access to safe and legal abortion care.
TLDR
The Malindi High Court ruling affirmed the right to abortion in Kenya by declaring that abortion care is a fundamental right under the Constitution of Kenya. The ruling protects patients and providers from arrest and prosecution for seeking and providing abortion services.
Sources:
Answered by mwakili.com