The Court of Appeal of Kenya has overturned a landmark High Court decision that had recognized abortion as a constitutional right, dealing a significant blow to reproductive rights advocates and reshaping the legal framework governing abortion in the country.
In its ruling delivered on April 24, a three-judge bench found that abortion is not a fundamental right under the Constitution, reversing a 2022 judgment by the High Court of Kenya that had expanded access to abortion services. The appellate court held that the Constitution protects the right to life from conception and only permits abortion under strictly defined circumstances.
According to the judgment, termination of pregnancy is allowed only when, in the opinion of a trained health professional, the life or health of the mother is in danger, or in cases requiring emergency treatment. Outside these exceptions, abortion remains prohibited under Kenyan law.
Background of the case
The case stems from a 2022 ruling in Malindi, where the High Court declared that access to abortion services was protected under constitutional rights to dignity, health, and freedom from cruel treatment. The decision also found that arresting or prosecuting women and healthcare providers for abortion-related services violated constitutional protections.
The petition was linked to a case involving a minor who suffered complications after seeking abortion-related care. A medical practitioner who treated her was initially charged but later acquitted by the High Court, which used the case to clarify legal protections.
However, the ruling was challenged by the Attorney General alongside the Kenya Christian Professionals Forum, who argued that the High Court had misinterpreted the Constitution—particularly Article 26(4), which outlines limited grounds under which abortion may be permitted.
Legal implications
The appellate decision effectively restores a more restrictive interpretation of abortion laws in Kenya. Under existing provisions of the Penal Code, procuring or attempting to procure an abortion outside the constitutional exceptions remains a criminal offence, carrying severe penalties.
Legal analysts say the ruling reinforces that abortion in Kenya is regulated rather than guaranteed as a right, placing significant responsibility on medical professionals to determine when it is legally permissible.
