Why doctors, women in abortion cases cannot be prosecuted after landmark ruling

Court rules Sections 158, 159 & 160 of the Penal Code are not inconsistent with the Constitution and the right to abortion is a fundamental right but it cannot be said to be absolute. [Getty Images]

At 18 years, PAK’s story will go into Kenya’s history books after she won a landmark case guaranteeing women and doctors a major reprieve on abortion.

The government has to now go back to the drawing board to distinguish when a woman can and cannot abort.

Four years ago, PAK was charged with procuring an abortion. At the same time, Salim Mohammed, the clinician who saved her life by terminating a threatening pregnancy was placed on the dock with a similar charge.

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

However, the High Court has quashed the charges against the two in a landmark judgment that has an implication on all criminal cases against women, doctors accused of procuring an abortion.

Justice Reuben Nyakundi has declared Sections 158, 159 & 160 of the Penal Code are not inconsistent with Constitution.

Section 158 states that a person who, with intent to procure the 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 fourteen years.

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 to her, is guilty of a felony and is liable to imprisonment for seven years.

At the same time, 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.

Re-opened debate

The import of the judgment is that the government’s hands are tied as it cannot prefer charges on women and girls who will abort with the help of a medical doctor unless there are proper laws in place.

Justice Nyakundi has re-opened the 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.

He noted that although the Constitution has guaranteed women and girls the right to reproductive health, they are still guests of state for making a choice to secure their lives.

“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 fetus or imminent danger of the mother,” Nyakundi said.

He noted that Parliament 'slept' on the Reproductive Healthcare Bill, 2019, that will 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, girls and others who can become pregnant, and thus for achieving social and gender justice.

Justice Reuben Nyakundi has re-opened the debate on when life begins and what circumstances can lead a woman to terminate a pregnancy. [Kelvin Karani, Standard]

He continued: “ The World Health Organization 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.”

Rights violation

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 said it is also an infringement of the right to decide freely and responsibly on the number, spacing and timing 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, including the rights to privacy and bodily autonomy,” 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 teen was 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 to a 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.

Miscarriage is a synonym for 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.

Criminal charges

The police thereafter stormed the clinic and demanded to be given PAK’s treatment records.

PAK, Mohammed together with two female employees who worked at the clinic as cleaners were arrested and taken to Ganze Police Patrol Base.

The Police officer at Ganze Police Patrol Base made PAK sign a statement written by the inquiring Police officer.

On September 22, 2019, PAK was forced to undergo a medical examination at Kilifi County Hospital where a medical examination form was filled out.

The police then pressed charges against her and the doctor.

Concurrent with the criminal charges against PAK, the children’s officer in charge of Ganze Sub-County made an application to send PAK to a children's home from September 23, 2019, to October 23, 2019.

He then wrote to her school headteacher seeking to confirm her attendance at the school.

In the letter, he labelled her as one charged with procuring an abortion and subject to criminal proceedings.

Following the application, the magistrate's court ordered her parents to produce her in court.

The two sued Attorney General Kihara Kariuki, Director of Public Prosecution Noordin Haji, Inspector General of Police Hillary Mutyambai and the magistrate's court.

PAK and clinician Salim Mohammed sued Attorney General Kihara Kariuki, Director of Public Prosecution Noordin Haji arguing that arresting and prosecuting women seeking abortion care services from a trained health professional is unlawful and a violation of the Constitution. [Jonah Onyango]

They argued that arresting and prosecuting women seeking abortion care services from a trained health professional and arresting and prosecuting a trained health professional providing abortion care, as provided in the Constitution, the Health Act, 2017 and the Sexual Offences Act, 2006 is unlawful and a violation of the constitution.

The AG, IG and the magistrate's court urged the court to dismiss the case.

They argued that the intention of Article 26 (4) was to make abortion illegal save for instances when in the opinion of a qualified health practitioner, the life of the mother is in danger or that there is a need for emergency treatment or where permitted by any other written law.

According to them, human life begins at conception, and that abortion is prohibited under Article 26(4) and sections 158-160 of the Penal Code.

“They have failed to demonstrate that the process within which the Legislature used to enact the legislation was unconstitutional or was flawed,” the AG replied on behalf of IG and the lawyer court.

He continued:” No attempt whatsoever has been made to demonstrate that the parliament in enacting the Penal Code and specifically the Sections claimed to be unconstitutional failed to follow the due process.”

The DPP on the other hand argued that having perused the police file, he noted that an offense had been committed a crime.

He asserted PAK’s statement had not been procured using torture or undue influence.

“The statement does not amount to a confession and cannot be adduced as evidence by the petitioners. It simply informed the third respondent on what to further investigate,” he stated.

The judge has ordered Parliament to enact an abortion law.

Reinstatement of safe abortion guidelines

This is the second time that the court is settling a major controversy on abortion.

In 2019, a five-judge reinstated safe abortion guidelines but found that abortion is illegal in Kenya.

Although a five-judge bench composed of Justices Lydiah Achode, Mumbi Ngugi, Aggrey Muchelule, George Odunga and John Mativo declared that the Constitution outlawed abortion, they found that the withdrawal of the 2012 guidelines was illegal and unconstitutional.

In addition, the judges outlawed sections of the Penal Code that made it criminal to offer abortion, saying it offered a “blanket” limitation to women’s rights to health.

“The Penal Code and Sexual Offences Act prohibit abortion. These Acts predate the Constitution, hence the Constitution takes precedence. The apparent blanket prohibition of abortion in the penal code cannot stand while the Constitution gives the right to a woman to abort when their life and health are in danger,” the judges ruled.

The court made its finding in a case where a 14-year-old girl named JMM procured unsafe abortion in a backstreet facility for Sh1,500.

According to the court record, the girl realised she was pregnant two months after being defiled and ended up in a Kisii County hospital, which failed to offer her post-abortion care.

The court found that the hospital abdicated its duty of care to JMM and ordered that it should, alongside the Health ministry, pay her Sh3 million for pain and damages caused.

On February 24, 2014, the Director of Medical Services issued a memo banning all healthcare workers from participating in any training on safe abortion.

This meant that pregnancies resulting from rape, incest and defilement could not be legally terminated.

He also banned the use of an abortion drug - Medabon - which is a combination of two other drugs - Mifepristone and Misoprostol- also used in abortion.

Two civil society organisations then went to court seeking orders that the Government puts in place guidelines for safe abortion.

The case had split medical doctors and the Health ministry in the middle.

During the hearing, the late Joseph Karanja, an obstetrician and gynaecologist, testified that he did not believe that an unborn child was a human being.

Although the Constitution provides that life begins at conception, the doctor told the court it started the moment one was born.

“A person becomes a person when they are born. No woman is forced to undergo abortion,” Prof Karanja told the court.

Asked if he advocated saving lives, Karanja said: “We are pro-life but if one (life) has to be saved then the life of a woman is more important as the baby relies on the mother.”
While opposing the case, Ministry of Health’s Productive Health boss Joel Gondi said instead of women procuring abortions, they could give up the babies for adoption.