A Review of Kenya's Abortion Laws
Author Sheila Ekinoum
In today’s world, there are but a few issues as contentious and polarizing as abortion. It is an issue rife with controversies and highly politicized necessitating states worldwide to legislate on whether a woman should have the right to choose whether to terminate a pregnancy and if so, the content of such a right. Naturally, it comes as no surprise that Mexico recently hit the headlines after the highest court of the land decriminalized abortion.
On September 7th, Mexico’s Supreme Court unanimously voted away the federal criminal penalties for abortion. The ten judges dubbed the law unconstitutional and equally extended the ruling to shield medical practitioners who performed the procedure. The Chief Justice, Arturo Zaldívar, stated verbatim, “Here ends the unjust criminalization of women.”
This decision comes a year after The United States Supreme Court undermined over fifty years’ worth of precedence when it overturned Roe v Wade. Looking closer home, Kenya is no alien to the abortion debate. The drafting of the fairly new constitution is a testament to the sensitivity of the issue as the committee of experts highlighted the life clause as being at the fore of the contentious issues.
Article 26(4) of the Constitution represents the compromise that was reached. The provision iterates that, “abortion is not permitted unless, in the opinion of a trained health professional, there is a need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.” Noteworthy, in Kenya permissibility of abortion is the exception that proves the rule as it is undoubtedly an offense to attempt to procure, procure, or supply drugs and instruments to aid in procuring an abortion.
The law prescribes a jail term of fourteen years, seven years, and three years respectively as supported by the Penal Code. However, these two laws seem to be pitted against each other, with the Constitution providing albeit a slight leeway while the Penal Code intimates a blanket ban on abortion, despite the circumstances.
Therefore, this raises a barrage of questions; is it time we amended our abortion laws? Back in 2019, the Reproductive Health Bill was tabled in Parliament with certain provisos touching on termination of pregnancy. Expectedly, it was met with backlash which was uncalled for.
The Bill did not suggest legalizing abortion, in no uncertain terms. It merely sought to broaden the scope of Article 26(4) with the most significant addition being, making fetal abnormalities an allowable ground for abortion. Had it been objectively considered, this piece of legislation would have gone a long way to shine a light on the often relegated issues of reproductive health including the highly contested surrogacy.
Perhaps, this may be a rallying call to legislators, policymakers, and trendsetters to go back to the drawing board and mule over the abortion question without so much focusing on the predominantly twofold discourse on abortion. This is because it only serves to undercut women from the discussion and weaponizes their experiences in endless political wars. In reality, they are the true victims of lost opportunities, fatalities, and the moral dilemma that accompanies the decision to keep or not to keep a pregnancy.
In conclusion, if Mexico’s, a largely catholic State, Supreme Court ruling is anything to go by, there is hope yet for countries like Kenya to embrace the changing mores of society and ride this green wave* by enacting progressive laws rooted in objectivity, facts, and evidence instead of unfounded fears and hunches. As reiterated by Mexico’s Supreme Court, the capacity to procreate should not impose motherhood as a compulsory destiny.
