- CRR said courts do not explicitly apply Article 26(4) to its full extent during proceedings or determinations of abortion cases.
- Article 26(4) provides for right to abortion where, in opinion of a trained health professional, there is a need for emergency treatment.
The number of women and girls seeking unsafe abortion from quacks is on the rise, according to a report released this week by a Nairobi-based safe abortion lobby.
The report by Center for Reproductive Rights reveals that despite being protected by Article 26(4) of the Constitution, the opinion of a trained health professional in regards to safe abortion is not only disregarded but also suppressed by the current legal mechanisms.
CRR said courts do not explicitly apply Article 26(4) to its full extent during proceedings or determinations of abortion cases.
It also said the provisions of that article are sidelined when accused women and girls are ‘publicly lynched’ and branded criminals without investigations into the circumstances surrounding termination of their pregnancies.
The report is titled, A Decade of Existence: Tracking Implementation of Article 26(4) of the Constitution.
“The persisting stigma and false narratives about abortion in the public domain and criminal justice system have put the lives of more Kenyan women and girls on the line,” said Evelyne Opondo, senior regional director for Africa at CRR.
“They are afraid of seeking safe and legal abortion for fear of prosecution even in situations where terminated pregnancy is the result of rape," she added.
Article 26(4) provides for right to abortion where, in opinion of a trained health professional, there is a need for emergency treatment, or the life or health of the pregnant woman or girl is in danger.
Nurses, clinical officers, midwives, doctors and obstetricians/gynaecologists are trained health professionals, but there has been discussion on whose opinion should be considered valid.
Unsafe abortion is responsible for the deaths of nearly 2,600 women and girls in Kenya every year, which translates to seven deaths every day, CRR said.
The launch of the report coincides with the marking of 10th anniversary of promulgation of the Constitution.
“Safeguarding access to safe abortion and abortion-related care within the context of all relevant Kenyan laws requires commitment by state agencies,” said Atieno Odhiambo, technical lead for Africa at CRR.
“Women and girls of Kenya expect more from the Director of Public Prosecutions, Chief Justice, Inspector General of Police, Members of Parliament and the Ministry of Health.”
CRR said to enhance legal protection for access to safe abortion there is a need to train police and prosecutors on interpretation and application of the constitutional provisions on abortion.
They also called for repeal of sections 158 – 160 of the Penal Code "to ensure legal clarity and seal the legal loopholes that fuel intimidation, harassment and extortion of women, girls and reproductive health providers."
CRR also called for reinstatement of the standards and guidelines on reducing maternal mortality and morbidity from unsafe abortion.
Edited by Henry Makori