Kenyan Court of Appeal Reverses Previous Abortion Rights Ruling
In a significant legal development, Kenya’s Court of Appeal has reversed a prior decision that recognized abortion as a constitutional right. This decision, announced on Friday, is expected to prompt further legal challenges, potentially escalating to the Supreme Court of Kenya.
The appeal centered around a 2022 case involving a teenager who had complications during pregnancy. After medical examination, it was determined that she had suffered a miscarriage, and she received necessary post-abortion care. Both she and her doctor were acquitted by the high court at the time.
Previously, the high court had ruled in favor of abortion access as a constitutional right, deeming any legal action against women and healthcare providers as unconstitutional. However, the recent ruling from the Court of Appeal emphasizes the constitution’s protection of a child’s right to life, allowing abortion only under specific conditions, such as when the mother’s life is in danger.
The court stated, “In effect, abortion is not a fundamental right guaranteed under the Constitution. On the contrary, the constitution expressly prohibits it but provides exceptions in limited circumstances where it may be permissible.”
According to Kenya’s penal code, attempting or procuring an abortion is illegal and can result in up to 14 years of imprisonment. Nevertheless, the constitution permits abortion if deemed necessary by a trained health professional to protect the mother’s life or health.
The Center for Reproductive Rights, a global human rights organization, expressed concern over the ruling, labeling it a “setback” and indicating plans to appeal to the Supreme Court of Kenya to address this legal issue.
The appeal was originally filed by the Kenya Christian Professionals’ Forum, a faith-based group, and the attorney general, against the 2022 high court decision. Charles Kanjama, representing the forum, stated that the appeal court’s decision has “restored constitutional balance which had been distorted by the high court ruling.”
Kanjama further explained, “That means if somebody is accused of an offense under Sections 158, 159, or 160 of the penal code, as happened in this case, they have to provide evidence to show that they were not engaged in the crime of abortion on demand.”
Abortion remains a significant public health issue in Kenya, contributing to high maternal mortality rates. A report anticipated for 2025 by the Ministry of Health, the African Population and Health Research Center, and the Guttmacher Institute, estimated 792,000 induced abortions occurred in Kenya from April 2023 to May 2024.
