By Enyichukwu Enemanna
An Appeal Court in the Christian-dominated Kenya has annuled a landmark ruling that says abortion was a fundamental right, pushing hundreds of thousands of women and girls to illegal health centres, sometimes operated by quacks that jeopardise their lives.
According to an international NGO, Centre for Reproductive Rights, seven Kenyan women die every day from unsafe abortions, and many face extortion by police due to uncertainty around the law.
Kenya’s 2010 constitution allows for abortions if the “life or health of the mother is in danger”.
The East African nation’s penal code, written during Britain’s colonial rule is however yet to effect the amendment to reflect that.
The court case dates back to September 2019, when a 16-year-old girl was arrested in her hospital bed by police in the coastal area of Kilifi, along with the clinician, Salim Mohammed.
She had come to the clinic with severe complications from an abortion, including pain and bleeding, and Mohammed provided post-abortion care after she had lost the baby, their lawyers say.
Mohammed was charged with providing abortion services and held in custody for a week. The girl was charged with procuring an abortion, and because she could not afford bail, was held in a juvenile prison for more than a month.
The High Court ruling in March 2022 in addition to quashing held that access to abortion was a constitutional right, and that patients must be protected from practices such as forced medical examinations used to prosecute them.
This was however overturned by appeal court on Friday, which held that the right to life starts at conception, and that the high court has the right to investigate whether the girl’s health was in danger before she sought an abortion.
“Abortion is not a fundamental right guaranteed under the Constitution. On the contrary, the Constitution expressly prohibits it but provides exceptions in limited circumstances when it may be permissible,” the judges ruled.
“Constitutional rights could not, of itself, stand in the way of proper investigation, charge and prosecution of the alleged offences in issue,” they added.
The Centre for Reproductive Rights called it “a deeply disappointing decision” and said it would appeal to the Supreme Court. “This decision raises significant concerns on access to reproductive health services in Kenya,” it said in a statement.
