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RIGHT TO LIFE

Court declines to declare abortion totally illegal

In Summary

• Abortion is permitted in the opinion of a trained health professional.

• Maputo Protocol allows abortion for girls and women who get pregnant as a result of sexual violence.

A maternity bloc at the Mbagathi Hospital.
A maternity bloc at the Mbagathi Hospital.
Image: FILE

A five-judge bench has declined to give a blanket ruling making abortion legal in Kenya.

Judges Aggrey Muchelule, John Mativo, Lydia Achode, George Odunga and Mumbi Ngugi asserted that the Constitution allows a window for abortion.

Article 26 (4) of the Constitution states that, ‘abortion is permitted 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’.

 
 
 
 

Odunga said the Maputo Protocol which Kenya is a signatory, allows abortion for girls and women who get pregnant as a result of sexual violence.

He ruled that the director of medical services violated the law by withdrawing the 2012 Standards and guidelines and training curriculum for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya.

“The guidelines were public policy documents that were passed through a process that involves public participation. The withdrawal should have followed the same procedure,” Ngugi.

She added; "It’s not the cause of pregnancy but effect of it that determines whether abortion is permitted. If a trained health practitioner finds that a pregnancy from rape or incest interferes with the mental, social or physical well-being of woman, abortion is allowed."

The judges have also ordered that JMM’s mother is entitled to comprehensive reparation due to inefficiencies of the hospitals where she was treated.

JMM’s case is the ground on which the petition was built.

She got pregnant after sexual violence and tried to procure an abortion from a quack doctor.

The process went wrong and she bled excessively damaging her kidneys.

She was taken to three different government hospitals seeking post-abortion care before she died.

Her compensation of Sh3 million is to be paid by the state.


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