RIGHT TO ABORTION: THE INDIGENOUS JURISPRUDENCE

Authored by: F. B Joseph

ABSTRACT

Blanket criminalization of abortion has been one of the major challenges to women and girls in Kenya as they seek reproductive health services. Such has therefore been an infringement of their rights and fundamental freedoms, inter alia, right to privacy and bodily autonomy and the right to highest attainable standard of health. There is also an implied right to abortion in the Constitution. This paper therefore addresses two main issues: first, existence of the right to abortion in Kenya and second, the extent of the limitations on the right.

INTRODUCTION

Notwithstanding the fact that the Constitution contains a vast and comprehensive list of rights and fundamental freedoms, there is need to recognize and appreciate that some rights may not have been explicitly included during the Constitution-making process. As the good Constitutional Law lecturer, one Dr. Githii Mweru once stated, there is an advantage and a disadvantage of the Constitution remaining silent on some issues. The Kenyan Judiciary has adopted a progressive stance by interpreting Constitutional provisions in a manner that promotes the Constitution’s purpose, values and principles, advances the rule of law, human rights and fundamental freedoms and permits the development of the law, this being a duty imposed on it under Article 259 of the 2010 Constitution. [1] In so doing, the courts have started recognizing the existence of implied rights within the Constitution. One such example of these rights is the right to abortion as explained in this paper.

The Right to Abortion

There exists a plethora of cases that have tackled the issue of abortion. The locus classicus on this matter would have been the United States’ Supreme Court decision in Roe v Wade, [2] which recognized the right to abortion. The off-cited precedent remained a leading authority from 1973 until it was overruled 49 years later in Dobbs v Jackson Women’s Health Organization. [3] Roe was overruled on two major grounds. First, that the right to abortion is not enshrined in the Constitution and there is no implicit reference to such right by any Constitutional provision. Second, that the right to abortion is not deeply rooted in the nation’s history and tradition.

In the Kenyan context, two major High Court decisions are of importance to this discussion. First, we look at the case of Federation of Women Lawyers (FIDA-Kenya) & 3 others v Attorney General & 2 others. [4] The five-judge Bench held that abortion is illegal save for the exceptions provided for under Article 26(4) of the Constitution which provides that abortion is permissible if, 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 and the same is prohibited under sections 158, 159 and 160 of the Penal Code. [5] Further, the Court held that in the case of pregnancy that is a result of sexual violence such as rape or defilement, the person can only get an abortion if the conditions under Article 26(4) are met; that it is not the cause of the danger that determines whether an abortion is necessary but the effect of the danger. [6]

It is however evident that this construction was technical and narrow. There are risks and challenges associated with pregnancy. Consider the case of pregnancy as a result of sexual offences. Is it logical that a woman or girl be forced to keep the pregnancy just because the opinion of the trained health professional is that the mother is not in danger? Should the victim of sexual assault live the whole of her life with a living remembrance of what happened to her? This is the point where I wish to differ from the view expressed by the Court. The mental anguish and torture are unimaginable. A decision to keep the pregnancy in such a situation should be left to the mother and not to a trained health professional.

The High Court of Kenya delivered an epoch-making judgment on 24th March 2022, thus setting a great jurisprudence on this constitutional debate, one that is contrary to the holding in Dobbs and gives a liberal, wider interpretation as opposed to the FIDA case. This was in PAK & another v Attorney General & 3 others. [7] The petitioners challenged the lawfulness of the abortion-related charges against them under the Constitution and the Sexual Offenses Act 2006. In its decision, the Court held that inaccessibility of quality and safe abortion care violates a range of the rights of women and girls including the right to life, right to the highest attainable standards of physical and mental health and bodily autonomy. In upholding the existence of the right to abortion, Nyakundi J stated:

”56. Access to safe abortion services is a human right. Under international human rights law, everyone has a right to life, a right to health, and a right to be free from violence, discrimination, and torture or cruel, inhuman and degrading treatment. 

57. Forcing someone to carry an unwanted pregnancy to term, or forcing them to seek out an unsafe abortion, is a violation of their human rights, including the rights to privacy and bodily autonomy.” [8](Emphasis- mine)

The Court went further to make a declaration founded on the right to life for Parliament to enact an abortion law and public policy framework in terms of Article 26(4) of the Constitution to provide for the exceptions as stipulated in the Constitution. Sections 158, 159 and 160 of the Penal Code were also held to be unconstitutional due to the fact that in criminalizing abortion, they fail to consider the exceptions under the Constitution. It is not in doubt that this decision of the court is a desideratum at this time and age. One thing to keep in mind is that this right to abortion is a qualified right.

CONCLUSION

Wrongful arrests and prosecution have always been the consequence suffered by Kenyan girls and women as they seek essential reproductive health care services, particularly safe abortion. This decision by the Court in PAK is a victory to the Kenyan girls and women. It addresses the fact that there is absence of a clear legislative and policy framework on access to abortion as allowed under the Constitution. This will now become history as a new path has been charted by the High Court in that most recent decision. We now raise our glasses and toast to PAK case for it forms our indigenous jurisprudence.

REFERENCES

1. See also Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & 10 Others [2015] eKLR at paragraph 91

2. 410 U.S. 113 (1973), hereinafter referred to as Roe

3. 597 U.S. 215 (2022), hereinafter referred to as Dobbs

4. [2019] eKLR. Hereinafter referred to as FIDA case

5. CAP 63, Laws of Kenya

6. FIDA case at paragraph 399

7. [2022] KEHC 262 (KLR)

8. Ibid 2