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Is abortion legal in Kenya?

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Introduction
The Legal Status of Abortion in Kenya 2.1. The Constitution of Kenya, 2010 2.2. The Penal Code 2.3. The Sexual Offences Act 2.4. The Kenya Medical Practitioners and Dentists Board
Conclusion

Introduction

This response will address the legality of abortion in Kenya, drawing upon relevant legal provisions and case law. It will examine the constitutional framework, relevant legislation, and the role of the Kenya Medical Practitioners and Dentists Board in regulating abortion practices.

The Legal Status of Abortion in Kenya

2.1. The Constitution of Kenya, 2010

The Constitution of Kenya, 2010, is the supreme law of the land and guarantees the right to life. Article 26(4) of the Constitution states that "every person has the right to life." This right to life is further elaborated upon in Article 15, which states that "every person has the inherent right to dignity."

However, the Constitution also recognizes the right to health, which includes the right to access essential healthcare services. Article 43(1)(e) of the Constitution states that "every person has the right to the highest attainable standard of health, which includes the right to health care services."

The right to life and the right to health are often in tension when it comes to the issue of abortion. While the right to life protects the fetus, the right to health may encompass the right of a woman to access safe and legal abortion services in certain circumstances.

2.2. The Penal Code

The Penal Code, Cap 63, 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."

This provision makes it clear that abortion is illegal in Kenya, except in cases where it is necessary to save the life of the mother.

2.3. The Sexual Offences Act

The Sexual Offences Act, No. 3 of 2006, provides for the protection of victims of sexual offenses, including victims of rape and incest. Section 14 of the Act states that "a person who commits an act of sexual violence against a child shall be guilty of an offense and shall be liable to imprisonment for a term not exceeding twenty years."

This provision is relevant to the issue of abortion because it recognizes that victims of sexual violence may be forced to carry unwanted pregnancies. In such cases, the right to health may outweigh the right to life of the fetus.

2.4. The Kenya Medical Practitioners and Dentists Board

The Kenya Medical Practitioners and Dentists Board is responsible for regulating the practice of medicine in Kenya. The Board has issued guidelines on the provision of abortion services, which state that abortion is only permissible in cases where the life of the mother is in danger or where the pregnancy is a result of rape or incest.

The Board's guidelines are not legally binding, but they provide guidance to medical practitioners on the ethical and legal considerations surrounding abortion.

Conclusion

The legal status of abortion in Kenya is complex and multifaceted. While the Constitution guarantees the right to life, it also recognizes the right to health, which may encompass the right to access safe and legal abortion services in certain circumstances. The Penal Code criminalizes abortion, but the Sexual Offences Act recognizes the need for access to abortion services for victims of sexual violence. The Kenya Medical Practitioners and Dentists Board has issued guidelines on the provision of abortion services, which provide guidance to medical practitioners on the ethical and legal considerations surrounding abortion.

In conclusion, the legality of abortion in Kenya is a matter of ongoing debate and legal interpretation. The courts have yet to definitively rule on the constitutionality of the Penal Code's prohibition on abortion, and the Board's guidelines are not legally binding. As such, the legal status of abortion in Kenya remains uncertain.