In 2010, Kenya voted to adopt a new constitution that recognizes health as a fundamental right, which includes abortion, post-abortion care, and emergency medical treatment. The 2010 Constitution enshrined abortion rights in law, marking a promising turning point for reproductive rights in the country.
Although Kenya’s Constitution established the right to health care and access to reproductive health services more than a decade ago, abortion has remained inaccessible throughout the country. Contrary to the Constitution’s protections, Kenya’s 1963 Penal Code continues to criminalize all abortion care.
Criminal enforcement of the penal code has led Kenyan women and girls to face harassment, as well as wrongful arrest and prosecution, for seeking an abortion. Health care providers are also reluctant to provide safe care while the penal code remains in place, even in emergencies. Consequently, abortion care remains nearly unobtainable throughout the country.
The Center for Reproductive Rights has challenged the criminalization of reproductive health care in Kenya and sought to actualize the promise of the Kenyan Constitution. The Center has achieved critical victories advancing reproductive rights in the country, including two landmark rulings from the High Court of Kenya, and continues to fight for safe and legal abortion care for all Kenyans.
Victories at the High Court of Kenya
PAK and Salim Mohammed v. Attorney General et al. (2022)
In 2022, the High Court of Kenya in Malindi affirmed that abortion is a fundamental right under the Constitution of Kenya. The landmark ruling also held that arbitrarily arresting and prosecuting patients seeking abortion care or health care providers offering abortion services is illegal.
The Center and the Reproductive Health Network Kenya (RHNK) filed the case, PAK and Salim Mohammed v. Attorney General et al, in 2020. The lawsuit was brought on behalf of “PAK,” a minor who sought emergency care after experiencing pregnancy complications, and Salim Mohammed, a trained clinical officer who treated PAK after determining she had lost her pregnancy. Kenyan police arrested and detained both PAK and Mohammed, accusing PAK of attempting an abortion and Mohammed of providing a medication abortion.
Besides asking the High Court to drop the charges, the Center and RHNK sought to establish the right of a minor to receive reproductive care; the right of a clinician to treat her; and Kenya’s obligations under its 2010 Constitution, which protects abortion care as a fundamental right.
In its landmark ruling in PAK and Salim Mohammed v. Attorney General et al, the High Court established that using the penal code to criminalize abortion without regard for the Constitution’s statutory framework undermines women’s reproductive rights. The decision also notes that access to abortion impacts values vital to the Constitution of Kenya, including dignity, autonomy, equality, and bodily integrity.
IDA Kenya and Others v. Attorney General and Others (2019)
Another groundbreaking High Court decision in 2019 affirmed the constitutional right to access abortion when there is a risk to the pregnant woman or girl’s physical, mental, and social health, including when the pregnancy resulted from sexual violence.
The case, FIDA-Kenya and Others v. Attorney General and Others, challenged the Kenyan government’s 2013 withdrawal of the “Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya.” In its decision, the High Court of Kenya determined that the arbitrary withdrawal violated the rights of women and girls and affirmed that abortion is a fundamental right under the Kenyan Constitution. The ruling was the first in Africa to address abortion as a constitutional right.
The timeline below provides an overview of the Center’s work to advance abortion rights in Kenya since the adoption of its 2010 Constitution.
Timeline: Abortion in Kenya
2010 | Kenya votes to adopt a new constitution to replace the 1963 Independence Constitution. The 2010 Constitution recognizes health as a fundamental right and includes explicit protections for reproductive health care, including abortion, post-abortion care, and emergency medical treatment. |
2012 | In response to a request from the Center and the Federation of Women Lawyers-Kenya (FIDA Kenya), the Kenya National Commission on Human Rights launches a public inquiry into sexual and reproductive rights violations in the country. In May, the Commission publishes an in-depth report concluding that the Kenyan government failed to adequately respect, protect, and promote reproductive rights, and calling upon government and non-state actors to remedy this failure. Seeking to implement the new constitutional protections for abortion, Kenya’s Ministry of Medical Services publishes the “Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya” in September. The Standards and Guidelines provide health care professionals with guidance about when they are allowed to provide abortion services under the 2010 Constitution. |
2013
| The Director of Medical Services arbitrarily withdraws the Standards and Guidelines without explanation or consultation with the stakeholders who participated in its development. |
2014 | The Ministry of Health issues a memo that prohibits health care professionals from being trained on safe abortion services and medication abortion, threatening providers who do participate in training with dire legal and professional consequences. These actions stoke confusion among providers about the legality of abortion services in Kenya. Following the Ministry of Health’s memo, Jackson Tali—a licensed, registered nurse in Nairobi—is sentenced to death after a young woman experiencing pregnancy complications died in his care. |
2015 | The Center files a petition against Kenya’s Attorney General, Director of Medical Services, and the Ministry of Health after the death of JMM, an adolescent girl who was unable to access safe abortion care when she was raped at the age of 14 and became pregnant. After receiving an abortion from an unqualified provider and being denied post-abortion care, JMM died from complications. The Center’s petition in this case, FIDA-Kenya and others v. Attorney General and others, challenges the lack of clarity on abortion laws in Kenya, urging the Kenyan government to restore safe abortion trainings and reinstate the 2012 Standards and Guidelines. |
2016 | The United Nations Committee on the Rights of the Child releases recommendations calling for Kenya to “review its legislation with a view to ensure that girls have access to safe abortion and post-abortion care services and that their views are always heard and respected in abortion decisions.” The U.N. Special Rapporteur on Torture also releases a report highlighting one of the Center’s cases in Kenya, representing two women who were illegally detained and subjected to abuse for being unable to pay their hospital fees. |
2017 | The Center files a lawsuit challenging the conviction of Jackson Tali. The Court of Appeal of Kenya acquits Tali later that year. Kenya adopts the Health Act, 2017, which broadens the definition of “health” under the Kenyan Constitution to include physical, mental and social well-being, not just the absence of disease. |
2018 | The Center challenges the Kenya Medical Practitioners and Dentists Board’s decision to ban Marie Stopes, an international charity, from providing abortion and post-abortion care in Kenya. Following the Center’s petition to the High Court, the Kenyan government lifts the ban. |
2019 | The High Court of Kenya issues a groundbreaking decision in the Center’s 2015 case, FIDA-Kenya and others v. Attorney General and others, challenging the government’s withdrawal of its Standards and Guidelines. The landmark ruling upholds the constitutional right to abortion and finds that the Kenyan government violated the rights of women and girls by arbitrarily withdrawing the Standards and Guidelines. This case is the first in Kenya to recognize abortion as a fundamental human right, and the first in Africa to address abortion as a constitutional right. |
2020 | The Center and the RHNK file a lawsuit in the High Court of Kenya on behalf of a minor who was detained for receiving abortion care and a clinician who was detained for treating her. The case, PAK and Salim Mohammed v. Attorney General et al., challenges their detention and seeks to affirm Kenya’s obligation to ensure reproductive health care under its Constitution. |
2022 | The High Court of Kenya issues a landmark decision in PAK and Salim Mohammed v. Attorney General et al. The ruling affirms that the Constitution of Kenya protects abortion as a fundamental right and establishes that arbitrary arrests and prosecution of patients and providers seeking or offering abortion care is illegal. |
