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Is abortion legal in Kenya?

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M-Wakili's Response

The legality of abortion in Kenya is a complex and nuanced issue, governed by a combination of constitutional provisions, statutory laws, and judicial pronouncements. While the Kenyan Constitution recognizes the right to health, including reproductive health, the Penal Code criminalizes abortion, creating a legal grey area that has led to confusion and stigma.

1. Constitutional Provisions

The Kenyan Constitution, adopted in 2010, provides the foundation for the right to health, including reproductive health.

Article 26(4) of the Constitution states that "Every person has the right to life, which includes the right to be born." This provision is often cited as a basis for the criminalization of abortion. However, the same article also states that "the right to life shall not be violated except in accordance with the law." This provision allows for exceptions to the right to life, including in cases where the life or health of the mother is in danger.
Article 43(1)(e) of the Constitution guarantees the right to the highest attainable standard of health, which includes access to reproductive health services. This provision has been interpreted by some to include the right to safe and legal abortion.

2. Statutory Laws

The Penal Code, which is the main criminal law in Kenya, criminalizes abortion.

Section 158 of the Penal Code states that "Any person who with intent to procure the miscarriage of a woman, unlawfully administers to her or causes her to take any poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever, with the like intent, shall be guilty of a felony and shall be liable to imprisonment for life."
Section 159 of the Penal Code states that "Any woman who, being pregnant, with intent to procure her own miscarriage, unlawfully administers to herself any poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever, with the like intent, shall be guilty of a felony and shall be liable to imprisonment for life."

3. Judicial Pronouncements

The Kenyan courts have grappled with the legal status of abortion in several landmark cases.

The High Court of Kenya in Malindi, in the case of Republic v. J.M. & Another (2022), ruled that abortion is a fundamental right under the Constitution of Kenya. The court held that arbitrarily arresting and prosecuting patients seeking abortion care or health care providers offering abortion services is illegal. This ruling was a significant step forward in recognizing the right to abortion in Kenya.
In the case of Federation of Women Lawyers (FIDA) Kenya v. Attorney General (2019), the High Court reinstated the 2012 Ministry of Health guidelines on safe abortion care. These guidelines provided for legal abortion in cases of rape, incest, or where the life or health of the mother is in danger. However, the Court of Appeal overturned this decision in 2020, finding that the guidelines were inconsistent with the Penal Code.

4. Legal Ambiguity

The conflicting provisions in the Constitution and the Penal Code, coupled with the inconsistent judicial pronouncements, have created a legal grey area surrounding abortion in Kenya. This ambiguity has led to a number of challenges, including:

Fear of prosecution: Many healthcare providers are reluctant to provide abortion services, even in cases where it is legally permissible, due to the fear of prosecution.
Unsafe abortions: Women who are unable to access safe and legal abortion services often resort to unsafe methods, which can lead to serious health complications and even death.
Stigma and discrimination: Abortion is still widely stigmatized in Kenya, and women who seek abortion services often face discrimination and judgment.

5. Current Situation

The legal status of abortion in Kenya remains uncertain. While the Constitution recognizes the right to health, including reproductive health, the Penal Code criminalizes abortion. The courts have issued conflicting rulings on the issue, and the government has not yet enacted comprehensive legislation to clarify the legal status of abortion.

6. Case Laws

Case Law 1:

Case Name: Republic v. J.M. & Another (2022)
Court: High Court of Kenya in Malindi
Outcome: The court ruled that abortion is a fundamental right under the Constitution of Kenya. The court held that arbitrarily arresting and prosecuting patients seeking abortion care or health care providers offering abortion services is illegal.

Case Law 2:

Case Name: Federation of Women Lawyers (FIDA) Kenya v. Attorney General (2019)
Court: High Court of Kenya
Outcome: The court reinstated the 2012 Ministry of Health guidelines on safe abortion care. These guidelines provided for legal abortion in cases of rape, incest, or where the life or health of the mother is in danger.

Case Law 3:

Case Name: Federation of Women Lawyers (FIDA) Kenya v. Attorney General (2020)
Court: Court of Appeal of Kenya
Outcome: The court overturned the High Court's decision in 2019, finding that the guidelines were inconsistent with the Penal Code.

7. Conclusion

The legal status of abortion in Kenya is a complex and evolving issue. While the Constitution recognizes the right to health, including reproductive health, the Penal Code criminalizes abortion. The courts have issued conflicting rulings on the issue, and the government has not yet enacted comprehensive legislation to clarify the legal status of abortion. This ambiguity has led to a number of challenges, including fear of prosecution, unsafe abortions, and stigma and discrimination.

TLDR

Abortion in Kenya is currently illegal under the Penal Code, but the Constitution recognizes the right to health, including reproductive health. The courts have issued conflicting rulings on the issue, creating a legal grey area. This ambiguity has led to challenges such as fear of prosecution, unsafe abortions, and stigma.

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