On December 15, proceedings will begin in Nairobi’s High Court concerning the legality of abortion in Kenya, an issue that has been mired in dispute since the introduction of the 2010 constitution. The decisive case will determine whether the nearly 465,000 women in Kenya that undergo abortions annually are committing criminal acts.
The new constitution introduced in 2010, which was heralded as progressive, was also met with resistance for its stance on abortion. Article 26(4) of the document stipulates that safe abortion services may be permitted only in cases in which “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, or if permitted by any other written law.” In 2015, the Federation of Women Lawyers (FIDA) Kenya and the U.S.-based Center for Reproductive Rights, along with other local human rights groups, filed a petition against the attorney general, the Ministry of Health and the Director of Medical Services.
In its petition, FIDA and the Center argue that the Director of Medical Services’ arbitrary revocation of its standards and guidelines for reducing complications from unsafe abortion and its prohibition of safe abortion trainings for health professionals constitute grave human rights violations. These actions, according to the organizations, have exposed women seeking abortions to severe medical risks, even death, especially in rural areas where access to medical trainings are largely unavailable and independent of those formerly provided by the Ministry of Health. Accordingly, FIDA and the Center want the Ministry of Health to clarify when legal abortion can be provided, particularly to ensure that survivors of sexual violence can exercise their right to safe and legal abortion, and to reinstitute trainings in safe abortion practices.
The issue of abortion in Kenya is one that is both urgent and contentious, engaging dozens of social, religious and legal groups in the debate. According to the Kenya Medical Association, more than half of the abortion procedures in Kenya each year are performed unsafely, with coat hangers, spoons, herbs, knitting needles, harmful pharmaceuticals and other unsanctioned practices. Unsafe abortions, however, often cost roughly a tenth of price of safe abortions in Kenyan clinics, yet they come at the greater expense of dangerous health complications. For example, in Kenya, nearly 266 deaths occur per 100,000 unsafe procedures, a relatively high case-fatality rate on the African continent. The incidence of unsafe abortion in Kenya and its implications of national women’s health underscore the urgency of the upcoming court case and the importance of clearly defining the status of abortion under the law.