Law widens scope where abortion is allowed

By Lucianne Limo

An African woman can procure an abortion when pregnancy results from rape, incest or when her life is in danger.

The Protocol on the Rights of Women in Africa (Prowa) explicitly sets forth the reproductive right of women to procure medical abortion.

And the international law, which Kenya has ratified, goes further than the Constitution in the controversial matter. It asks State parties to authorise medical abortion in case of rape, incest, sexual assault or where the pregnancy endangers the life of mother or foetus.

Kenya’s Constitution only allows abortion if the life of the mother is in danger.

Prowa is renowned for its strong and comprehensive provisions on women’s rights. In another first, the protocol calls for the legal prohibition of female genital mutilation. It also specifies 18 years as the minimum age for marriage and promotes equal representation of women in the Judiciary and law enforcement as well as at all levels of decision-making.

The African Union adopted the protocol to the African Charter on the rights of women in July 11, 2003. Kenya joined 31 other African countries that have ratified the protocol on October 6, last year.

On Monday night, the Vice-Chairperson of the Commission on the Implementation of the Constitution, Elizabeth Muli, launched a manual to guide activists and lawyers on how to use the provisions in protocol to litigate on behalf of aggrieved women.

She said the manual provides an analysis of case laws on women’s rights decided by other regional and international bodies which can be used to guide courts in interpretation of women rights as provided in the protocol.

“The protocol is important as the Constitution provides that any treaty ratified by Kenya shall form part of the laws of Kenya,” Muli added.

The protocol asks governments to ensure women enjoy their right to decide whether to have children, how many and their spacing. It also gives women the right to know the health status of their partners.

The law also says women and men shall have a right to inherit, in equitable shares, their parents’ properties. The guide was released by an international human rights organisation, Equality Now, in conjunction with Solidarity for African Women’s Rights. The release of the manual comes eight years after the protocol came into force.

“We hope African lawyers and women’s rights advocates find the manual useful, and it gives them hands-on guidance on how best to apply the remarkable standards of the protocol in cases of violations of women’s rights,” said Faiza Jama Mohamed, the Nairobi Office director of equality.