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How judges reinstated safe abortion guidelines in 2019

In 2019, a five-judge bench reinstated safe abortion guidelines, but found that abortion is illegal in Kenya. [File, Standard]

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

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

Although 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 “blanket” limitation to women’s rights to health.

“The Penal Code and Sexual Offences Act prohibits 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,” they 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 hospital, which failed to offer her post-abortion care.

Civil society organisations went to court seeking orders that the government puts in place guidelines for safe abortion. [iStock]

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 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.

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.

Dr Wahome Ngari, a witness for Kenya Christian Professional Forum, opposed the reinstatement of the safe abortion guidelines.

He argued that there were other ways of managing unwanted pregnancies, including adoption.