COURT GAVEL
The Court of Appeal will rule on March 27 whether abortion is a fundamental human right.
The three-judge bench — comprised of Justices Gatembu Kairu, Grace Ngenye and Kibaya Laibuta — heard two consolidated appeals on October 6 this year.
The cases were filed by a group of petitioners, including activist Ann Kioko, the Kenya Christian Professionals Forum, the State Law Office and the Office of the Director of Public Prosecutions.
They challenged a 2022 High Court decision that held abortion to be a fundamental right, but not an absolute one. The judges said it must be balanced with the provisions of the Constitution.
The judges said the constitution permits the procedure only under specific circumstances and directed Parliament to enact a law and policy framework to guide how those provisions should be applied.
The directive to Parliament and the court’s conclusion that access to abortion falls under broader constitutional protections triggered the appeals now before the Court of Appeal.
The appellants said the High Court had gone beyond the constitution by elevating abortion to the level of a fundamental right.
They cited a 2019 decision by a five-judge bench, which concluded abortion is illegal except in the situations described in the constitution, particularly when a trained health professional determines that a pregnancy endangers a woman’s life or health.
They argued that the constitution is explicit that life begins at conception and said the High Court erred by interpreting the provision on abortion in a way that appeared to expand its scope.
According to them, the previous court gave too much weight to the right to privacy while overlooking the rights of the unborn child.
They also faulted the High Court’s reference to international and foreign court decisions, including the US Supreme Court’s Roe v Wade ruling, affirming a constitutional right to abortion. It has since been overturned by a conservative court.
The respondents, represented by the Centre for Reproductive Rights, defended the 2022 judgment.
They said the trial judges correctly read the constitution as allowing abortion in specific situations and acknowledged that the right can be linked to other constitutional guarantees, such as dignity, privacy and access to health.
They argued that blanket criminalisation creates fear, stigma and uncertainty in the health system, which in turn pushes women and girls into unsafe termination procedures.
They said the lack of clear legal guidance has led to avoidable harm and prevents health workers from acting in situations where the constitution already provides for exceptions.
Several organisations joined the appeal as friends of the court. KELIN (the Kenya Legal & Ethical Issues Network on HIV and AIDS), Women’s Link Worldwide and FIDA-Kenya made joint submissions highlighting the health risks associated with unsafe abortions and the implications for women’s and girls’ rights.
They also raised concerns about discrimination and the state’s responsibility to ensure access to essential reproductive health services. The Law Society of Kenya and the International Federation of Gynaecology and Obstetrics also participated, each offering perspectives meant to assist the court.
With the hearings concluded, the Court of Appeal will deliver its ruling on March 27. Its decision is expected to clarify how the constitutional provision on abortion should be understood and how it aligns with criminal law.
The ruling is anticipated to influence future policy and legislative action on reproductive health.
