NAIROBI, Kenya (AP) – A court of appeal in Kenya has recently overturned a previous ruling that affirmed the right to access abortion, setting the stage for a further legal battle that is likely to escalate to the Kenyan Supreme Court. The decision stems from a 2022 case involving a teenager who sought medical help due to pregnancy complications. Following an examination, a doctor concluded that the teenager had experienced a miscarriage and subsequently provided emergency post-abortion care, leading to their acquittal by the high court.
The high court in 2022 deemed access to abortion a fundamental right as outlined in the Kenyan Constitution. It declared that the arrest and prosecution of women and healthcare providers associated with abortion were unconstitutional. The recent ruling from the court of appeal, however, challenges this interpretation, asserting that abortion infringes on a child's right to life, which is guaranteed by the Constitution. The court emphasized that abortion is prohibited, except under specific conditions where the mother's life is at risk.
The court of appeal's ruling stated, “In effect, abortion is not a fundamental right guaranteed under the Constitution. On the contrary, the Constitution expressly prohibits it but provides exceptions in limited circumstances where it may be permissible." This ruling significantly alters the legal landscape regarding abortion rights in Kenya, where the penal code criminalizes the act, imposing potential prison sentences of up to 14 years for those attempting or procuring an abortion. While the Constitution permits abortion under certain medical circumstances, the recent court decision indicates a more restrictive interpretation of these allowances.
The reaction to the court's decision has been swift, with global human rights organization, the Center for Reproductive Rights, labeling the ruling a "setback" for reproductive rights in Kenya. They have expressed intentions to escalate the matter to the Supreme Court of Kenya to address what they view as a significant legal anomaly. Meanwhile, the ruling has been welcomed by local faith-based groups, such as the Kenya Christian Professionals' Forum, which, alongside the attorney general, initially appealed the high court's 2022 judgment. Charles Kanjama, the forum's lawyer and former chairperson, praised the court of appeal’s ruling, asserting that it has restored constitutional balance which he believes was skewed by the high court’s decision.
Kanjama added that the decision mandates that anyone accused under Sections 158, 159, or 160 of the penal code must provide evidence proving they were not involved in the crime of "abortion on demand." This emphasizes a new burden of proof on individuals involved in similar legal matters moving forward.
The issue of abortion remains a contentious and critical public health concern in Kenya, where it is a leading cause of maternal deaths. According to a 2025 report produced by the Ministry of Health in collaboration with the African Population and Health Research Center and the Guttmacher Institute, an estimated 792,000 induced abortions were recorded in Kenya between April 2023 and May 2024. This alarming statistic underscores the urgency for a clear legal framework addressing abortion rights and reproductive health services in the country.
