Court of appeal upholds abortion not a constitutional right

The Constitution expressly prohibits it but provides exceptions in limited circumstances when it may be permissible (Photo: Gemini)

The Court of Appeal has overturned a landmark judgment that had affirmed women’s and girls’ right to abortion.

Upholding Kenya’s abortion ban as constitutional, Justices Gatembu Kairu, Dr Imaana Laibuta and Ngenye Macharia ruled that the Constitution guarantees the right to life, and that terminating an unborn child amounts to denying that right.

They therefore held that Sections 158, 159 and 160 of the Penal Code are consistent with the Constitution.

“In effect, 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. It is noteworthy that to establish offences under sections 158, 159 and 160 of the Penal Code, the prosecution would have to establish the element of ‘unlawfulness’ in accordance with the demands of those provisions,” the bench led by Justice Kairu stated.

The judges further directed that the criminal case against the girl at the centre of the matter and clinician Salim Mohammed proceed to full hearing before the magistrates’ court.

The appeals were filed by the Kenya Christian Professionals’ Forum, Ann Kioko, Catherine Nyambura, the Attorney General, the Director of Public Prosecutions, the Inspector General of Police and the Kilifi Magistrate’s Court.

The woman, now 22 and identified by the code name PAK, has become central to a case that has shaped the national debate on abortion rights and criminal liability.

The latest ruling effectively resets her legal journey, as she will now face trial alongside the clinician. Eight years ago, PAK and Salim Mohammed were charged with procuring an abortion.

The State also charged Mohammed with a second count of administering unknown drugs to induce an abortion.

However, Justice Reuben Nyakundi of the High Court had earlier quashed the charges and declared Sections 158, 159 and 160 of the Penal Code inconsistent with the Constitution.

Under Section 158 and 160, a person who assists in procuring an abortion is deemed guilty, while Section 159 provides that a woman who induces her own abortion is liable to imprisonment for up to seven years.

The import of the earlier judgment was that women and girls who procure abortions cannot be charged in the absence of clear enabling laws.

Justice Nyakundi also reopened debate on when life begins and the circumstances under which a woman may lawfully terminate a pregnancy. He held that there were gaps in the law that should be addressed instead of criminalising the entire act.

He further noted that Parliament had failed to advance the Reproductive Healthcare Bill, 2019, which was intended to guarantee women’s reproductive rights and distinguish between lawful and unlawful termination of pregnancy.

According to the judge, abortion is closely tied to the protection of women’s and girls’ human rights and is central to social and gender justice.

He also cited the World Health Organisation, which advocates for access to safe, affordable, timely and respectful abortion care.

“Forcing someone to carry an unwanted pregnancy to term, or forcing them to seek out an unsafe abortion, is a violation of their human rights,” he stated.

The court heard that when she developed complications during her pregnancy, she sought treatment on September 19, 2019.

She was in severe pain and bleeding heavily. At the clinic, PAK received emergency care from Mohammed, who, after examination, concluded that she had suffered a spontaneous abortion.

Justice Nyakundi was told that Mohammed carried out a manual vacuum evacuation, after which PAK’s condition stabilised. She was later reported to be in fair general condition, with only mild lower abdominal pain, and was allowed to return to the female ward to recuperate.

Court documents show that Mohammed is a registered clinical officer with the Clinical Officers’ Council and holds a Diploma in Clinical Medicine and Surgery from the Kenya Medical Training College.