1. An Overview of Abortion in Kenya;
Law, Policy and Guidelines
Laila Abdul Latif
Advocate, Rachier & Amollo Advocates
2. Why is this discussion important?
This discussion is important for us to understand
abortion in Kenya and its implications. It is also
important for us to understand:
1. What does the law say about abortion?
2. Whether there are any policies and guidelines in
place informing the practice of abortion in Kenya?
3. What does the law say about
abortion in Kenya
• Article 26 of the Constitution.
▫ Every person has the right to life and life begins at
conception.
▫ This right can only be taken away as authorised by the
Constitution or other written law
▫ The Constitution DOES NOT PERMIT abortion but
provides an EXCEPTION.
4. What is this EXCEPTION?
• The Constitution permits abortion where the
following criteria is satisfied:
▫ It is the opinion of a trained health
professional that there is a need for;
Emergency treatment; or
The life or health of the mother is in danger.
▫ There is a law that permits abortion. Is there? Yes,
the Penal Code.
5. Legal questions that arise from that
exception
• Who is a trained health professional? There is no
definition
• What is emergency treatment? There is no explanation
• What constitutes danger to the life or health of a
mother? There are no guidelines
• It is the OPINION of the trained health professional
that shall inform whether or nor abortion should be
carried out
6. Article 26 (2) of the Constitution versus
Section 214 of the Penal Code
• Art 26 (2): Life begins at conception
• Section 214: A child becomes a person capable of being killed
WHEN IT HAS COMPLETELY PROCEEDED IN A LIVING STATE
FROM THE BODY OF ITS MOTHER, whether it has breathed or not
and whether it has an independent circulation or not, and whether the
navel-string is severed or not
• Law lacks clarity.
7. Right to reproductive health care
• Article 43 (1) (a) of the Constitution provides:
(that) every person has the right to the highest attainable standard
of health, which includes the right to health care services, including
REPRODUCTIVE HEALTH CARE
8. Reproductive Health Care
• The International Conference for Population and
Development in 1994 elaborated that
reproductive health is a state of complete
physical, mental and social well-being and not
merely the absence of disease or infirmity in all
matters relating to the reproductive system and to
its functions and processes. Reproductive health
implies that people are able to have a satisfying and
safe sex life and that they have the capability to
reproduce and the freedom to decide if, when and
how often to do so.
9. Abortion is ONLY allowed
• Where there is a need for emergency treatment;
or
• Where the life or health of the mother is in
danger.
10. The Penal Code criminalizes abortion
• Section 158: uses the term miscarriage and unlawful administration
• Section 159: uses the term miscarriage and unlawful administration
• Section 160: uses the term unlawfully supplies
• The Penal Code is clear on the law on abortion.
UNLESS PERMITTED BY LAW, it is not
allowed. What is the law that permits abortion?
The Constitution (see Article 26 and our earlier
discussion)
11. Penal Code also permits abortion
• Section 240:
A PERSON is not criminally responsible for
performing in good faith and with reasonable care
and skill a surgical operation upon any person FOR
HIS BENEFIT, or upon an unborn child FOR
THE PRESERVATION OF THE MOTHER'S
LIFE, if the performance of the operation is
reasonable, having regard to the patient's state at
the time and to all the circumstances of the case.
12. Policy framework
• National Reproductive Health (RH) Policy 2007
being implemented through the National
Reproductive Health Strategy 2009-2015. The goal
of the RH Policy is to improve reproductive health
status of all people in Kenya by increasing equitable
access and improving quality, efficiency and
effectiveness of service delivery at all levels.
• Policy on safe abortion adopted by the Ministry of
Medical Services based on the 2012 WHO report on
“safe abortion: technical and policy guideline for
health systems”.
13. Guidelines on abortion
• Medical Practitioners and Dentists Board's Code of
Professional Conduct and Discipline: There is room, for
carrying out termination when in the opinion of the attending doctors it is
necessary in the interest of the health of the mother or baby. In these
circumstances, it is strongly advised that the practitioner consults with at
least two senior and experienced colleagues, obtains their opinion in writing
and performs the operation openly in hospital if he considers himself
competent to do so in the absence of a Gynecologist. In all cases of illegal
termination of pregnancies, the sentences shall be suspension or erasure.
• Ministry of Health, National Guidelines on the
Medical Management of Rape/Sexual Violence:
Termination of pregnancy as an option in case conception occurs as a result
of the rape should be discussed (this is allowed in Kenya under these
circumstances. It however requires psychiatric evaluation and
recommendation).
14. International law on abortion
• Covenant on Economic, Social and Cultural Rights
(1966);
• Convention on the Elimination of all forms of
Discrimination against Women (1979);
• The Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
(1984);
• Beijing Declaration and Platform for Action adopted
at the Fourth World Conference on Women (1995);
• United Nations Millennium Development Goals
(2000)
15. Regional law on abortion
• The Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa or the
“Maputo protocol (2003);
• The Maputo Plan of Action on Sexual and Reproductive
Health and Rights of operationalization of the
Continental Policy framework on Sexual and
Reproductive Health and Rights ( 2006);
• The African Health Strategy (2007-2015);
• Campaign on Accelerated Reduction of Maternal
Mortality in Africa (CARMMA) (2009);
• The African Union Summit on Maternal, Infant and
Child Health and Development (2010).
