Kenya: Abortion Plan Advanced by High Court
Tuesday, July 30, 2019

Kenya’s High Court, established by the new constitution, issued a ruling that advances the strategy of global pro-abortion elites to broaden access to abortion in Kenya—a goal they have been after since the new constitution was enacted in 2010.  The Court ruled in favor of a case brought by the Center for Reproductive Rights, Ipas, and the Federation of Women Lawyers (FIDA) on behalf of the mother of a 14 year-old rape victim who died following an abortion. The Court issued two rulings.  First, it ruled that rape is a legal exception for abortion provided under Article 26(4) of the Constitution. Justice Aggrey Muchelule explained the broad interpretation of health used by the Court, "Pregnancy resulting from rape or defilement, if in the opinion of a trained medical profession poses a danger to life or the health - that is physical, mental and social well-being of the mother – may be terminated under ... sections of the constitution.”

Second, the Court found that the 2013 decision by the Director of Medical Services and the Ministry of Health to withdraw the 2012 Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya and the National Training Curriculum for the Management of Unintended, Risky and Unplanned Pregnancies—guides written with assistance from Ipas— “violated the rights of women and adolescent girls of reproductive age to the highest attainable standard of health. The Court further found that the unjustifiable limitation amounted to the violation of the right of women and girls to non-discrimination, as well as the right to information, consumer rights, and right to benefit from scientific progress.”  The Ministry of Health withdrew the Standards and Guidelines and stopped the abortion training program out of concern that they provided/enabled access to abortion beyond the constitutional limits.

Ipas had previously acknowledged that it was involved in passage of the Kenyan constitution reporteding in 2010, “Ipas acknowledges its role in securing passage of a new constitution” and stated “By adding a ‘health’ indication for abortion, the language in the constitution allows for greatly expanded access to safe [abortion] services." During the 2010 campaign for the constitution pro-life advocates, including religious leaders, were accused of lying when they correctly stated that the new constitution with the broad health definition would open the door to abortion on demand. 

Ipas also stated that it worked with Ministry of Health officials to "ensure that the new language is implemented, despite efforts by the anti-choice movement to have it removed." 

The Kenya Christian Professionals Forum and the Catholic Doctors Association filed briefs as interested parties which included seeking to define that “trained health professional” meant a “qualified medical doctor” but the Court decided that “the term was not borne out by the constitutional and statutory provisions, or by the reality on the ground” opening the way to abortion by non-physicians.

The African Commission on Human and Peoples’ Rights, a treaty monitoring body of the African Union, welcomed the judgment of the High Court through its Special Rapporteur on the Rights of Women in Africa, the Special Rapporteur on Freedom of Expression and Access to Information in Africa, and the country rapporteur for Kenya. It noted that the judgment was “in line with the Campaign for the Decriminalization of Abortion in Africa, which was launched by the Special Rapporteur on the Rights of Women in Africa in Addis Ababa, Ethiopia, on 18 January 2016.”

Its statement continued, “Furthermore, this decision is in line with Article 14 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) which guarantees women’s right to health, including sexual and reproductive health, and specifically Article 14(2)(c)which requires State Parties to ‘protect the reproductive rights of women by authorizing medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother, or the life of the mother, or the foetus’.”

The Commission urged that all State Parties “ensure that women and girls can access comprehensive and accurate sexual and reproductive health information in order to exercise their right to the highest attainable standard of health” and called on Kenya to lift its reservation to the abortion article of the Maputo Protocol “to ensure that women may have full exercise of the constitutional protection established in Article 26(4) of the Constitution and affirmed by the High Court last week.”

In response to the High Court’s ruling the Center for Reproductive Rights called for renewed training in abortion methods stating, “We ask the Ministry of Health to immediately reinstate training of all nurses, clinical officers, midwives and doctors on provision of safe and legal abortion services in accordance with the Constitution; and also to avail in all facilities trained health professionals, essential medicines and equipment for safe and legal abortion in accordance with the Constitution.”

During last summer’s Abortion & Reproductive Justice: The Unfinished Revolution conference in South Africa, funded by George Soros’ Open Society to pursue the overturning of laws against abortion around the world, pro-abortion elites lamented that the strategy for Kenya had not yet resulted in greater access to abortion and may have “gone backwards".  Activists also discussed the use of the Maputo Protocol as the means to advance abortion in Africa claiming that “few people actually know what exactly is in the Maputo Protocol” and that “perhaps it would be best to urge governments to implement it without specifying the details, but focus instead on what we think is best to promote.”

Pro-abortion NGOs celebrated the rulings. According to the legal advisor for the Center for Reproductive Rights, Martin Onyango, who argued the case, “This is a big and unprecedented win for this country.”

Center for Reproductive Rights‏ @ReproRights

WE ARE CELEBRATING!! We have been fighting at the Kenyan High Court for four years to reinstate the Standards and Guidelines for safe abortion care in Kenya. Today, we won BIG.