KENYA – Kenya’s High Court in Malindi has declared that abortion related arrests and prosecution is illegal in the country in an effort to protect the health of women and girls.

The court’s decision aims to protect patients seeking abortion services as well as healthcare providers offering safe abortion services in the fight to protect women’s reproductive rights.

High Court Judge Reuben Nyambati Nyakundi pronounced the verdict in a case where a 16-year-old minor and a clinical officer who provided post-abortion care to her were charged in November 2020.

Currently, the unresolved state of abortion law in Kenya results to limited access to safe abortion since the 1970 Penal Code criminalizes it while the 2010 Constitution makes exceptions to this criminalization.

The Constitution permits abortions only if in the opinion of a trained health professional, there is need for emergency treatment or the life or health of the mother is in danger.

The court case in question involved a minor from Kilifi County who after experiencing pregnancy related complications sought medical care at a nearby clinic.

The clinical officer determined that she had lost a pregnancy upon examining her and proceeded to provide her with the needed care, an incident that prompted police officers to storm the clinic.

The officers went ahead arresting the girl along with the clinical officer alleging offence of abortion for that reason the clinical officer was detained for one week.

Subsequently, the girl was remanded to a juvenile remand for more than a month as she sought to secure the cash bail for her release.

The High Court’s landmark ruling seeks to address the issues of imprisonment for abortion in order to offer health and quality of life benefits to thousands upon thousands of girls, teenagers and women.

During the monumental verdict, Justice Reuben Nyakundi highlighted that abortion care is a fundamental right under the Constitution of Kenya and protecting access to abortion impacts vital constitutional values including dignity, autonomy, equality and bodily integrity.

“It also ruled that criminalizing abortion under Penal Code without Constitutional statutory framework is an impairment to the enjoyment of women’s reproductive right,” emphasized Justice Reuben.

Justice Reuben Nyakundi maintained that arbitrary arrests and prosecution of patients and healthcare providers for seeking or offering such services is illegal.

The High Court has further directed Parliament to enact an abortion law and public policy framework that aligns with the Constitution.

Clear clarity and transparency with regard to the circumstances in which abortion is legal will greatly contributes to reducing Kenya’s high maternal mortality ratio from complications of unsafe abortion.

Meanwhile, the World Health Organization (WHO) recently released new guidelines on abortion in a bid to prevent more than 25 million unsafe terminations that happen each year.

The body recommends that women and girls should access abortion and family planning services when they need the services since nearly every death resulting from unsafe abortion is entirely preventable.

Along with clinical and service delivery recommendations, the guidelines advocate for the removal of medically unnecessary policy barriers to safe abortion such as criminalization.

Barriers can cause critical delays in accessing treatment, putting women and girls at risk of unsafe abortions, stigma and health complications as well as disrupting education and their ability to work.

Moreover, evidence shows that restricting access to abortions does not reduce the number of abortions that take place instead the restrictions are more likely to drive women and girls towards unsafe procedures.

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