The unceasing ambiguity surrounding the right to abortion in Kenya

Abortion is a contentious and emotive subject matter and has remained a significant conversation for many years in different parts of the world. Opinions and views are legal, cultural, ethical, philosophical or religious, which subsequently means that the divergent positions will only continue to deviate from each other. The overturning of Roe v Wade by the majority ruling in the Supreme Court of the USA fuelled this old scuffle and clash of laws. The rule of law entails the law being open and clear, general in form, universal in application, and knowable to paper seeks to establish whether the Constitution and the laws of Kenya as construed provide sufficient guidelines surrounding the issue of abortion in Kenya.

The constitutional provision of the Right to Abortion is envisaged in Article 26 of the Constitution which provides as follows:[1]

  • Every person has the right to life;
  • The life of a person begins at conception;
  • A person shall not be deprived of life intentionally, except to the extent authorized by this Constitution or other written law;
  • 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, of if permitted by any other written law.

This article discusses the seeming ambiguities between the provisions of the Constitution and other statutory laws and suggests a balance between two diverse views and opinions surrounding abortion.

  1. Is there a conflict between the Constitution and the Penal Code?

Section 158 of the Penal Code provides that “Any person who, with intent to procure 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 any force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for fourteen years.” The Penal Code then criminalizes unsafe abortion in Section 159 and 160. Notably though, Section 240 protects a trained health professional who has provided safe abortion services if performed in ‘good faith and reasonable care’ for the preservation of the mother’s life.

In the case of FIDA – Kenya & 3 others v Attorney General & 2 others[2], the court observed that the opening statement of the said Article 26(4) of the Constitution starts with the statement that “abortion is not permitted.” According to the court, this then becomes the general rule and the court did not accept an interpretation that tends to hold that the Article means that abortion is legal. The court further noted that the said prohibition is in line with the provisions of the Penal Code, sections 158, 159 and 160. In the case of PAK & another vs Ag,[3] Justice Nyakundi affirmed that there is indeed no conflict between the Constitution and the outlined provisions of the Penal Code.

Whereas Section 158 of the Penal Code has been used to ambush and threaten medical providers[4] who offer safe abortion, even when a woman qualifies under the law, the Penal Code is not in conflict with what the Constitution provides.

  •  The unanimity of the right to life and the right to health

The right to life is the foundation of all other rights provided in the Bill of Rights, and upon which all other rights are hinged.[5] There are two lives in question whenever abortion is to be procured in Kenya, following the Constitutional Provision that the life of a person begins at conception. That is to say that the voiceless foetus acquires the right to life immediately, which is protected by the Constitution.

Without doubt, the mother carrying the foetus also holds an irrefutable right to life, and in protecting the life of the foetus, the right to life of the mother must be upheld. The Constitution considers this fact when it outlines circumstances under which abortion is permitted, including where the mother needs emergency treatment or when the life of the mother is in danger.  

There is, therefore, no dilemma as to whose life is to be saved, because the survival of the foetus in any case still depends on the life of the mother.

Without the right to health, then the right to life is in jeopardy.[6] Article 23 must be read together with Article 43(1)(a) which provides that every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care. Pro-choice groups have argued that the right to access safe abortion falls under the right to health, and more particularly reproductive health care, while the pro-life groups have insisted that abortion should not be treated as a means of contraception.

The tiebreaker between these two positions is in establishing an acceptable definition of what health is. The Health Act, of 2017, defines “health” as a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. This is in line with the preamble of the World Health Organization Constitution.[7] Section 6(1) of the said Health Act is more elaborate on abortion matters as it provides that “Every person has a right to reproductive health care which includes access to treatment by a trained health professional for conditions occurring during pregnancy including abnormal pregnancy conditions, such as ectopic, abdominal and molar pregnancy, or any medical condition exacerbated by the pregnancy to such an extent that the life or health of the mother is threatened.”

The position of the law, therefore, is that the right to reproductive health includes the right to abortion within the given parameters and conditions. However, despite this seemingly clear position, and the guarantee by the Constitution of emergency care, there is still ambiguity in abortion law, which contributes to the risk of unsafe abortion through delayed care-seeking and emergency service delivery.[8]

  • The characterization of a trained health professional

There was a lacuna on what “a trained health professional” referred to as provided in the Constitution, but the Health Act, 2017 under Section 6(2) clarified that a health professional referred to a person with formal medical training at the proficiency level of a medical officer, a nurse, midwife, or a clinical officer who has been educated and trained to proficiency in the skills needed to manage pregnancy-related complications in women, and who has a valid license from the recognized regulatory authorities to carry out that procedure.

The Act also demands that any procedure carried out shall be performed in a legally recognized health facility with an enabling environment consisting of the minimum human resources, infrastructure, commodities and supplies for the facility. If this is to be complied with, then there is need for strengthening the capacity of medical personnel such as nurses, midwives and clinicians as the number of specialized doctors in the country remain low.[9]

  •  Right of children carrying babies

The Constitution[10] and the Children Act uphold the concept of the “best interest” of the child, but there is no clear definition of what best interest means. Children courts in seeking the best interest of the child try to determine what decision is most beneficial to the child. A child cannot consent to sexual intercourse, as the law deems her incapable of making such a decision. Both the minor’s parents and her physician owe her a legal duty to act in her best interests taking into consideration factors such as her age, desire to return to school, nature of the sexual encounter, and all other relevant settings.

  •  Lack of guidelines on the parameters allowing abortion

In PAK & another vs AG & 3 others[11], the High Court noted that the lack of guidelines for abortion when it complied with the Constitution meant that women were forced to resort to unsafe abortion in a bid to end unwanted pregnancies.  The lack of statutory or administrative framework setting out how women should access a safe abortion in circumstances provided for in the Constitution impairs women’s reproductive rights.

Conclusion

Abortion is not allowed in Kenya, and abortion on demand is illegal, except in the circumstances outlined in the Constitution or written law. However, there remains a lot of ambiguity in relation to this issue, and clear guidelines should be put in place both at national and county levels. The constraints should not be overstepped and overstretched to allow abuse, but neither should the law be interpreted so narrowly that medical practitioners are unsure and at a limbo on how to treat life-threatening pregnancy complications.[12] There is a lacuna on information regarding the termination of pregnancies as provided for in the Constitution.[13] In the same manner as the Supreme Court of the USA[14] was called upon to re-evaluate Roe vs Wade, the Supreme Court of Kenya, when called upon, shall be required to settle the parameters surrounding this controversial issue.

The author is the Lead Counsel at Mukoma & Associates

mukoma@mukomaadvocates.com


[1] The Constitution of Kenya 2010, Chapter IV

[2] Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others; East Africa Center for Law & Justice & 6 others (Interested Party) & Women’s Link Worldwide & 2 others (Amicus Curiae) [2019] eKLR (2019)

[3] PAK & another v Attorney General & 3 others (Constitutional Petition E009 of 2020) [2022] KEHC 262 (KLR) (24 March 2022) ruled that Sections 158, 159 & 160 of the Penal Code were not inconsistent with articles 1, 2, 4, 10, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29,31, 43, 46, 48, 49, 50, 73, 75, 157 (11), 159, 165 (3,6 & 7), 232, 258, 259 and section 7 of the sixth schedule of the Constitution.

[4]  Criminal Case No. 536 of 2013 at Kilifi Magistrates Court involved a health provider that had been charged with attempting to procure an abortion contrary to section 158 of the Penal Code, even when the said abortion was within the acceptable parameters.

[5] Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others; East Africa Center for Law & Justice & 6 others (Interested Party) & Women’s Link Worldwide & 2 others (Amicus Curiae) [2019] eKLR (2019)

[6] PAO & 2 others Vs AG (2012)eKLR.

[7] The World Health Organization (WHO) Constitution available at ……, lastly accessed on 21st December, 2022.

[8] Puri M, Lamichhane P, Harken T, Blum M, Harper CC, Darney PD, et al. “Sometimes they used to whisper in our ears”: health care workers’ perceptions of the effects of abortion legalization in Nepal. BMC Public Health [Internet] 2012;12:297 Available from: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3434092/ 10.1186/1471-2458-12-297 [PMC free article] [PubMed] [CrossRef] [Google Scholar]

[9] Arnall J, Swica Y, Winikoff B. Non-physician clinicians can safely provide first trimester medical abortion. Reprod. Health Matters [Internet] 2009;17:61–9. Available from: http://www.jstor.org/stable/40647611 10.1016/S0968-8080(09)33445-X [PubMed] [CrossRef] [Google Scholar]

[10] Article 53 (2) of the Constitution of Kenya, 2010

[11] PAK & another v Attorney General & 3 others (Constitutional Petition E009 of 2020) [2022] KEHC 262 (KLR) (24 March 2022)

[12] Mutua MM, Maina BW, Achia TNO, Izugbara CO. Factors associated with delays in seeking post abortion care among women in Kenya. BMC Pregnancy Childbirth [Internet] 2015;

[13] PAK & another v Attorney General & 3 others (Constitutional Petition E009 of 2020) [2022] KEHC 262 (KLR) (24 March 2022)

[14] Dobbs, State Health Officer of the Mississippi Department Of Health, Et Al. V. Jackson Women’s Health Organization Et Al. where the Supreme Court of United States in its judgement dated June 24, 2022

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The Platform for Law, Justice & Society is published by Gitobu Imanyara & Co every month principally to offer a platform for informed and critical discussion of the National Values and Principles set out in Articles 10 (2) of the Constitution of Kenya.

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