Court of Appeal overturns judgment okaying abortion, reinstates ban laws

The Court of Appeal has overturned a landmark judgment, which handed women and girls a right to abortion.

While upholding the abortion ban in Kenya is constitutional, Court of Appeal Judges Gatembu Kairu, Dr. Imaana Laibuta and Ngenye Macharia said that the Constitution guarantees a right to life, hence aborting an unborn child amount to depriving him or her of the right.

For this, they said that sections 158, 159 and 160 of the Penal Code are within the confines of 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 headed by Justice Kairu said.

The three Judges directed that the criminal case against the girl at the heart of the case and Salim Mohammed, a clinician, should proceed to a full hearing before the magistrates’ court.

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

The now 22-year-old girl code-named PAK will go down in history for the battle for and against abortion.

The judgment by the Court of Appeal now puts her back on the drawing board, as she will have to face the law, alongside the clinician.

Eight years ago, PAK and Salim Mohammed, a clinician, were charged with procuring an abortion.

The state slapped Mohammed with a second count of issuing unknown drugs to procure an abortion.

High Court judge Reuben Nyakundi quashed the charges against the two.

Justice Nyakundi declared Sections 158, 159 & 160 of the Penal Code inconsistent with Constitution.

Section 158 states that a person who, with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for 14 years.

Further, Section 159 provides that any woman who, being with child, with intent to procure her own miscarriage, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used on her, is guilty of a felony and is liable to imprisonment for seven years.

In the meantime, Section 160 provides that any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman whether she is or is not with child, is guilty of a felony and is liable to imprisonment for three years.

The import of the judgment was that women and girls who abort cannot be charged unless there are proper laws in place.

Mr Nyakundi has re-opened debate on when life begins and what circumstances can lead a woman to terminate a pregnancy.

He said there are gaps in the law on terminating pregnancies that need to be sealed instead of criminalising the entire act.

Mr Nyakundi noted that although the Constitution guarantees women and girls right to reproductive health, they are still jailed for abortion.

“The right to terminate a pregnancy is a fundamental right and the decision as to whether to terminate a pregnancy is fundamental to a woman’s “personal liberty.The court thus recognized the great detriment that the State would impose upon the pregnant woman by denying this choice, including forcing her to endure health risks associated with pregnancy and the costs of bringing a child into a family under circumstances that completely ignore the viability of the foetus or imminent danger of the mother,” he said.

Nyakundi noted that Parliament slept on Reproductive Healthcare Bill, 2019, that would guarantee women the right to abort and make a distinction between when it is legal and illegal to terminate a pregnancy.

According to the judge, abortion is linked to protecting and upholding the human rights of women and girls, and thus for achieving social and gender justice.

He continued: “The World Health Organisation notes that lack of access to safe, affordable, timely and respectful abortion care, and the stigma associated with abortion, poses risks to women’s physical and mental well-being throughout the life-course.”

The judge was of the view that failure to get quality abortion care risks violating a range of human rights of women and girls, including the right to life; the right to the highest attainable standard of physical and mental health; the right to benefit from scientific progress and its realization.

He also said it is also an infringement of the right to decide freely and responsibly on the number and spacing of children; and the right to be free from torture, cruel, inhuman and degrading treatment and punishment.

“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.

Justice Nyakundi also found that it is unfair to drag a doctor in court for using his or her training and discretion to save a life by ending another.

According to him, the criminal case preferred against the doctor was questioning the doctor’s professional decision, which is not a crime.

He continued: “As a profession he/she has the right to practice according to the norms valid for that profession as stipulated in the various statutes. That in emergency cases he has the freedom to perform or not perform an abortion and to choose the way in which to perform it.”

“In the premise of this petition, whether abortion was carried out other than by the decisive element of good reason by the trained health professional is moot.”

The then teen from Ganze Location in Kilifi County became pregnant after sexual intercourse with a fellow student.

The court heard that upon experiencing complications with her pregnancy, she went for treatment on September 19, 2019.

She was in severe pain and bleeding. At the Clinic PAK received emergency care from Mohammed who, upon examining her concluded that she had suffered a spontaneous abortion.

Justice Nyakundi heard that Mohammed performed a successful manual vacuum evacuation, after which PAK was in fair general condition.

With mild lower abdominal pain, PAK was then allowed to return to the female ward to recuperate.

According to court documents, Mohammed is a registered Clinical Officer with the Clinical Officers’ Council. He holds a Diploma in Clinical Medicine and Surgery from the Kenya Medical Training College.