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.”