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What does "abortion on demand" mean?
Understanding "Abortion on Demand" in the Context of Kenyan Law
Table of Contents
Introduction
Definition of "Abortion on Demand"
Legal Framework for Abortion in Kenya
The Constitution of Kenya, 2010
The Penal Code
The Health Act, 2017
Case Laws and Legal Precedents
Federation of Women Lawyers (FIDA) Kenya & 3 others v Attorney General & 2 others [2019]
JMM v Attorney General & 2 others [2022]
Comparative Analysis with Other Jurisdictions
Conclusion
TLDR
1. Introduction
The term "abortion on demand" is often used in discussions about reproductive rights and the legal frameworks governing abortion. Understanding this term within the context of Kenyan law requires a comprehensive look at the legal provisions, case laws, and societal implications surrounding abortion in Kenya.
2. Definition of "Abortion on Demand"
"Abortion on demand" refers to the ability of a woman to obtain an abortion at her request without needing to provide any specific justification or meet any particular conditions. This concept is often contrasted with more restrictive abortion laws that require specific circumstances, such as risk to the mother's life or health, rape, or fetal impairment, to be met before an abortion can be legally performed.
3. Legal Framework for Abortion in Kenya
3.1 The Constitution of Kenya, 2010
The Constitution of Kenya, 2010, provides the primary legal framework for abortion in the country. Article 26(4) of the Constitution states:
"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 establishes that abortion is generally prohibited but allows for exceptions under specific circumstances, such as when the life or health of the mother is at risk or in cases of emergency treatment.
3.2 The Penal Code
The Penal Code, Cap. 63, further elaborates on the legal stance on abortion in Kenya. Articles 158-160 and 228-240 of the Penal Code criminalize abortion, with severe penalties for those who perform or procure an abortion outside the exceptions provided by law.
Article 158: Provides that any person who, with intent to procure the miscarriage of a woman, unlawfully administers to her any poison or other noxious thing, or uses any force of any kind, or uses any other means whatsoever, is guilty of a felony and is liable to imprisonment for fourteen years.
Article 159: States that any woman who, with intent to procure her own miscarriage, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatsoever, 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.
Article 160: Provides that any person who unlawfully supplies to or procures for any person anything whatsoever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, is guilty of a felony and is liable to imprisonment for three years.
3.3 The Health Act, 2017
The Health Act, 2017, also addresses issues related to reproductive health, including abortion. Section 6 of the Act emphasizes the right to reproductive health care and the need for safe and legal abortion services under the conditions specified by the Constitution.
4. Case Laws and Legal Precedents
4.1 Federation of Women Lawyers (FIDA) Kenya & 3 others v Attorney General & 2 others [2019]
In this landmark case, the High Court of Kenya in Malindi affirmed 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 significant in clarifying the legal position on abortion and protecting the rights of women and health care providers.
Parties: Federation of Women Lawyers (FIDA) Kenya and others vs. Attorney General and others
Outcome: The court ruled in favor of the petitioners, affirming the right to abortion under specific circumstances and prohibiting arbitrary arrests and prosecutions.
4.2 JMM v Attorney General & 2 others [2022]
In another significant ruling, the High Court in Malindi reiterated that abortion is part of reproductive health rights as enshrined in the Constitution. The court emphasized the need for clear guidelines and policies to ensure safe and legal access to abortion services.
Parties: JMM vs. Attorney General and others
Outcome: The court ruled in favor of the petitioner, highlighting the importance of reproductive health rights and the need for legal clarity.
5. Comparative Analysis with Other Jurisdictions
In contrast to Kenya's restrictive abortion laws, some countries have more liberal approaches to abortion. For instance, South Africa's Choice on Termination of Pregnancy Act, 1996, allows abortion on demand up to the twelfth week of pregnancy and under specified conditions up to the twentieth week. This comparative analysis highlights the varying degrees of legal permissibility and the impact on women's reproductive rights.
6. Conclusion
The concept of "abortion on demand" is not recognized under Kenyan law, which imposes significant restrictions on the circumstances under which abortion can be legally performed. The legal framework, as established by the Constitution, the Penal Code, and the Health Act, 2017, allows for abortion only under specific conditions, such as when the life or health of the mother is at risk or in cases of emergency treatment. Recent case laws have affirmed the right to abortion under these conditions and have emphasized the need for legal clarity and protection of reproductive health rights.
7. TLDR
"Abortion on demand" refers to the ability to obtain an abortion without needing to provide specific justification. In Kenya, abortion is generally prohibited but allowed under specific conditions, such as risk to the mother's life or health. Recent case laws have affirmed the right to abortion under these conditions and emphasized the need for legal clarity.
Sources
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