A Malindi High Court Judge made a ruling on abortion rights in Kenya that saw two accused persons exempted from charges.
The accused, PAK, a minor who had gone to procure abortion care and Salim Mohammed, the trained clinician who conducted the care treatment, were arrested by Police in November 2020.
The Center for Reproductive Rights and the Reproductive Health Network Kenya (RHNK) took the case to the High Court after a Magistrate’s Court refused to drop charges against them.
While abortion is illegal in Kenya, it is considered legal under special circumstances such as if a trained healthcare provider finds it necessary, the mother's life is at risk and pregnancy is a result of sexual violence.
The lobbies argued that the Constitution guarantees comprehensive access to medical care for everyone.
Justice Reuben Nyakundi directed Parliament on March 25 to enact an abortion law and public policy framework that aligns with the Constitution.
"PAK was recovering from a medical procedure and police did not have the medical qualifications to determine whether she was in a condition to leave the clinic regardless of her admission status at the said clinic," he said.
Additionally, the court found that PAK’s arrest was inhumane and degrading, and being a minor, she ought not to have been interrogated without legal representation. The court directed parliament to enact an abortion law and public policy framework that aligns with the Constitution.
Also, he ruled that PAK had not consented to her private information between her and her healthcare provider be disclosed, violating her rights.
Lobby groups have rejoiced over what they term a landmark decision by a Malindi High Court on abortion rights.
The 16-year-old minor from Kilifi County sought medical care at a clinic where a trained clinical officer attended to her.
“Upon examining her, the clinical officer determined that she had lost a pregnancy and proceeded to provide her with the needed care,” said the network.
It was while still receiving treatment at the facility that police officers stormed the clinic, confiscated PAK’s treatment records, and arrested her, along with the clinical officer.
“The two were taken to Ganze Police Base where PAK couldn’t access further medical care for two days and was forced to sign a statement which was contrary to what had happened"
"The police also forced PAK to undergo another medical examination at Kilifi County Hospital to obtain evidence to prove an alleged offence of abortion,” they added.
Mohammed was detained for one week while PAK was remanded to a juvenile remand for more than a month as she sought to secure cash bail for her release.
It is not uncommon for healthcare providers to be arrested for providing crucial post-abortion care services, as Nelly Munyasia, Executive Director of RHNK revealed.
“Many qualified reproductive healthcare practitioners continue to be arrested, detained, and prosecuted for providing legal medical care," she said.
The court’s decision, she added, confirmed that prosecution against health providers cannot hold where the prosecution has not established that the professional in question was unqualified to conduct the procedure, the life of the woman was not in danger or the woman was not in need of emergency treatment.
This ruling comes weeks after the WHO issued new abortion guidelines and asked that Kenya adopt them.
The guidelines include recommendations on many simple primary care level interventions that improve the quality of abortion care provided to women and girls.
“These include task sharing by a wider range of health workers, ensuring access to medical abortion pills, which means more women can obtain safe abortion services, and making sure that accurate information on care is available to all those who need it,” reports an article by the Star.
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