Kenya’s High Court Declares Abortion-Related Arrests and Prosecutions Illegal

The High Court in Malindi has declared abortion-related arrests and prosecution illegal.

In a landmark ruling on Friday, Justice Reuben Nyakundi stated that abortion care is a fundamental right under the Constitution of Kenya, adding that protecting access to abortion impacts vital constitutional values, including dignity, autonomy, equality, and bodily integrity.

The judge further noted that criminalizing abortion under the Penal Code without a Constitutional statutory framework is an impairment to the enjoyment of women’s reproductive rights.

Justice Nyakundi made the ruling in a case where a 16-year-old minor and a clinical officer who provided post-abortion care to her were charged in November 2020.

The girl sought medical care at a clinic in Kilifi after she experienced pregnancy-related complications, according to court documents.

Upon examination, the clinical officer established that teenager had lost a pregnancy and went on to provide her with the needed care, but police stormed the clinic and arrested the two on offense of abortion.

The clinical officer was detained for one week while the girl was held in a juvenile remand for over a month as she sought to raise the cash bail for her release.

Justice Nyakundi also directed Parliament to enact an abortion law and public policy framework that aligns with the Constitution. He ruled that arbitrary arrests and prosecution of patients and healthcare providers for seeking or offering such services is illegal.

Kenya’s 1963 Penal Code criminalizes all abortion care, including those allowed under the Constitution 2010. The constitution permits abortion if there is a need for emergency treatment or the life or health of the mother is in danger.

The landmark ruling offers relief and protects patients seeking abortion services and healthcare providers offering the services.

Evelyne Opondo, Senior Regional Director for Africa at Center for Reproductive Rights said the ruling is a victory for all women, girls, and healthcare providers who have been treated like criminals for seeking and providing abortion care.