Kenyan courts could become more liberal in handling abortion cases if judges start using a book put together by the International Commission of Jurists recently launched by Supreme Court judge Smokin Wanjala.
The Right to Health Bench Book: Select Decisions, Issues, and Themes by the Kenyan section of ICJ breaks down the abortion-related case laws and juxtaposes them with the legal framework, hence putting abortion as a health right, rather than a crime.
Currently, abortion is considered as a criminal issue. However, the book argues the subject should be viewed as a health right issue. Article 26( 4 ) of the Constitution provides that, “Abortion is not permitted unless, 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.”
Sexual and reproductive right activists believe that this provision of the constitution leaves the door open for agitation for general legalisation of abortion through Supreme Court opinion to breath life to it or through a piece of legislation.
“What the constitution seems to permit is medicalised abortion – termination of a pregnancy based on the danger posed to the health and life of the mother. The health of the mother does not only constitute the physical health, but also the mental health,” the book says.
The Centre for Reproductive Rights has developed Mental Health Indicators for Legal Abortion that judges relying on the ICJ resource can use to guide their determination.
The book decries that “the Kenyan legal system appears preoccupied with treating abortion as a criminal issue rather than as a sexual and reproductive health issue.”
It argues that when judges entertain prosecution or police harassment of medical health professionals who provide abortion care and procedures, especially in instances that turn unfortunately fatal, more lives get endangered.
It further notes that while most of the cases it has analysed relative to the subject are “not all directly related to the right to health, they demonstrate the approach that courts take towards abortion generally.”
“When healthcare professionals are prosecuted for saving the lives of girls and women who have suffered complications as a result of botched abortions, then many may shy away from offering these crucial health care services that have the potential to save lives.”
Data from Marie Stopes International estimates that about 49 per cent of all pregnancies in Kenya tend to be unintended and 41 per cent of them ended in an abortion.
The agency also estimates that 2,600 women die from unsafe abortions annually, an average seven deaths a day.
“The bench book could not have come at a better time,” Mwikali Nyaboke, a women rights activist and a lawyer, told the Star.
“The judges now have a rich resource, complete with lots of case
laws touching on the subject and if
they make use of it.”
