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Is abortion legal in Kenya?

Introduction

The legality of abortion in Kenya is a complex issue governed by various provisions in the Constitution of Kenya, 2010, and other relevant statutes. This answer will delve into the legal framework surrounding abortion in Kenya, including the constitutional provisions, statutory laws, and judicial interpretations that shape the current legal landscape.

Table of Contents

1. Constitutional Provisions

   • 1.1 Article 26: Right to Life

   • 1.2 Exceptions to the Right to Life

2. Statutory Laws

   • 2.1 Penal Code (Cap 63)

   • 2.2 Health Act, 2017

3. Judicial Interpretations

   • 3.1 Case Law

4. Conclusion

1. Constitutional Provisions

1.1 Article 26: Right to Life

The primary constitutional provision governing the issue of abortion in Kenya is Article 26 of the Constitution of Kenya, 2010. This article provides for the right to life and states:

• Article 26(1): "Every person has the right to life."

• Article 26(2): "The life of a person begins at conception."

• Article 26(3): "A person shall not be deprived of life intentionally, except to the extent authorized by this Constitution or other written law."

1.2 Exceptions to the Right to Life

While Article 26(2) establishes that life begins at conception, Article 26(4) provides specific exceptions under which abortion may be legally permissible:

• Article 26(4): "Abortion is not permitted unless, 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."

This provision allows for abortion under certain circumstances, primarily focusing on the health and life of the mother.

2. Statutory Laws

2.1 Penal Code (Cap 63)

The Penal Code, which predates the 2010 Constitution, contains several provisions that criminalize abortion:

• Section 158: "Any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for fourteen years."

• Section 159: "Any woman who, being with child, with intent to procure her own miscarriage, unlawfully administers to herself any poison or other noxious thing, or uses force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a felony and is liable to imprisonment for seven years."

• Section 160: "Any person who unlawfully supplies to or procures for any woman any poison or other noxious thing, or any instrument or thing whatever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she is or is not with child, is guilty of a felony and is liable to imprisonment for three years."

These sections criminalize the act of procuring an abortion, whether by the woman herself or by another person.

2.2 Health Act, 2017

The Health Act, 2017, provides additional context to the legal framework surrounding abortion. Section 6 of the Act aligns with the constitutional provisions and states:

• Section 6(1): "Every person has a right to reproductive health care which includes the right to... access to appropriate health-care services that will ensure safe pregnancy and childbirth and the right to emergency treatment."

• Section 6(2): "A health care provider shall not be criminally liable for performing in good faith and in accordance with the applicable laws, a lawful termination of pregnancy."

This section reinforces the conditions under which abortion may be legally performed, emphasizing the need for good faith and adherence to applicable laws.

3. Judicial Interpretations

3.1 Case Law

Kenyan courts have also played a role in interpreting the legal provisions surrounding abortion. One notable case is FIDA-Kenya & 3 others v Attorney General & 2 others [2019] eKLR, where the High Court addressed the issue of access to safe abortion services. The court held that:

• The Ministry of Health's withdrawal of the "Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya" was unconstitutional as it violated the right to health.

• The court emphasized the need for clear guidelines to ensure that women can access safe and legal abortion services under the conditions specified in the Constitution.

This case underscores the judiciary's role in ensuring that the constitutional provisions on abortion are effectively implemented and that women's rights to health and life are protected.

Conclusion

In summary, the legality of abortion in Kenya is governed by a combination of constitutional provisions, statutory laws, and judicial interpretations. The Constitution of Kenya, 2010, primarily through Article 26, sets the framework for the right to life and the conditions under which abortion may be permitted. The Penal Code criminalizes unlawful abortions, while the Health Act, 2017, provides additional protections for healthcare providers performing lawful abortions. Judicial interpretations, such as the FIDA-Kenya case, further clarify and enforce these legal provisions.

The legal landscape surrounding abortion in Kenya is thus characterized by a balance between protecting the right to life and ensuring access to safe and legal abortion services under specific conditions.

Answered by mwakili.com

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