Kenyan Appeals Court Overturns Ruling on Abortion as Fundamental Right

A Kenyan appeals court on Friday overturned a 2022 High Court ruling that declared access to abortion a fundamental right under the country's constitution. The appeals court stated that the constitution prohibits abortion except in limited circumstances, such as when the life or health of the mother is in danger.

The judges ruled that the right to life begins at conception and that investigations into potential violations are permissible.

The case originated in September 2019 in Kilifi, where a 16-year-old girl was arrested in a hospital after seeking care for complications from an abortion. The clinician, Salim Mohammed, provided post-abortion care and was charged with offering abortion services.

Mohammed was held in custody for a week, while the girl was detained in a juvenile prison for over a month due to inability to pay bail. Their lawyers stated that Mohammed determined the girl had lost the baby and needed care for pain and bleeding. In March 2022, the High Court quashed the charges and affirmed abortion access as a constitutional right, protecting patients from practices like forced medical examinations for prosecution.

The appeals court on Friday reversed this, stating that lower courts can investigate whether a person's health was in danger before seeking an abortion. The judges added that constitutional rights do not prevent proper investigation, charging, or prosecution of alleged offenses.

“Abortion is not a fundamental right guaranteed under the Constitution. On the contrary, the Constitution expressly prohibits it but provides exceptions in limited circumstances when it may be permissible.”

The Center for Reproductive Rights stated the decision raises concerns about access to reproductive health services in Kenya. The organization announced it would appeal to the Supreme Court.

2010 constitution permits abortions if the mother's life or health is at risk, but the penal code has not been updated to reflect this. Rights groups report that legal uncertainty leads to police harassment and extortion of patients and doctors. A study by the African Population and Health Research Center, the Ministry of Health, and the Guttmacher Institute estimated over 790,000 induced abortions in Kenya in 2023.

It found that more than 300,000 people received post-abortion care in health facilities, mainly for complications from unsafe procedures. The Center for Reproductive Rights reported that seven women die daily in Kenya from unsafe abortions. The organization highlighted that such cases involve criminal sanctions despite constitutional protections for dignity, health, and freedom from cruel treatment.