Last Friday, the Court of Appeal in Malindi made a ruling that essentially took away protections from arrest and prosecution for those who procure or provide abortions.
The framing of the court is supposed to be read as a legal correction for an improper ruling made by the High Court a few years prior, but, in reality, it displays a larger problem in Kenya regarding whom we care for and whom we discard.
The ruling reverses a 2022 judgment of the High Court that had recognised abortion care as a constitutional right under certain conditions and had shielded patients and healthcare providers from arbitrary arrest.
At the centre of this matter were two respondents, one of whom was a minor aged 16, who had been provided with abortion care, which had resulted in the arrest of both the minor and the healthcare providers.
The fact that the case revolves around a minor exposes a legal and social system that is willing to impose discipline on children while failing to address the conditions that place them at risk in the first place.
A child who seeks medical care after a pregnancy loss or an unwanted pregnancy is engaging with the health system at a moment of vulnerability.
The response of the State, through this ruling, is to reopen the possibility of arrest and prosecution, effectively turning healthcare settings into sites of surveillance and fear.
This approach disregards the constitutional commitments to dignity, health, and protection from inhuman treatment, and it signals to young people that seeking care can carry legal consequences.
Kenya’s broader context makes this decision even more troubling. The country continues to report some of the highest teenage pregnancy rates globally, and during the COVID-19 period was reported as having the third-highest pregnancy rates globally.
While it may feel reflexive to punish the girls for getting pregnant by chastising them for reckless behaviour and removing the option of abortion, it behooves us to be cognisant of the conditions under which teenage pregnancy becomes so prevalent.
Between 2020 and 2022, schools were closed for the most part, and economic conditions were dire as many were forced to stop working.
These economic conditions bred an increase in such concepts as sex for pads and sex for food, where girls were coerced into sexual relationships to get whatever essentials they needed.
As well, child marriage shot up drastically as families gave away their girls in exchange for cattle. That we expose our girls to such violence, and then punish them through arrest for carrying the consequences of said violence is quite telling of our disdain for our children.
The emphasis on punishment rather than protection in cases involving minors raises important questions about the role of the State in safeguarding children’s rights.
International and regional human rights frameworks to which Kenya is a party emphasise the best interests of the child as a primary consideration in all actions concerning children, and it is this principle that the High Court had relied upon in making its ruling.
When a legal decision increases the risk of harm to minors by restricting access to healthcare and exposing them to criminal sanctions, it is difficult to argue that their best interests are being served.
The impact of the Court of Appeal decision will extend beyond the courtroom.
Healthcare providers operate within legal and professional frameworks that shape their willingness to offer certain services, and the threat of arrest or prosecution creates a chilling effect that can limit access to care even in legally permissible circumstances.
For minors, this can mean encountering additional barriers when seeking post-abortion care, counselling, or other reproductive health services.
Delays in accessing care can lead to complications that are otherwise preventable, placing further strain on both individuals and the health system.
The law, in this sense, becomes a determinant of health outcomes, particularly for those with the least power to navigate its complexities.
Kenya is in urgent need of a reshaping of its moral norms and priorities. We can no longer hinge our morals on specific actions when the circumstances leading up to the action have been immoral.
For a country that has vowed to end gender-based violence by 2026, a ruling such as this, which does not consider the circumstantial, risks pushing us back and reversing children’s rights.
A rights-based approach to reproductive health would recognise that protecting life includes ensuring that children and adolescents have access to the information, services, and support they need to make informed decisions about their bodies.
