Blanket criminalisation of abortion continues 11 years after the current Constitution was enacted, medical doctors and advocates say.
They explain that while the Constitution allows abortion on wide grounds, the Penal Code has remained restrictive.
The Constitution permits abortion if, 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.
“It’s very clear that not only doctors but also nurses, clinical officers and midwives can recommend and conduct an abortion,” Evelyne Opondo, a lawyer and senior regional director for Africa at the Center for Reproductive Rights, said.
She said the police still use the “outdated” Penal Code to crack down on clinics and medics offering abortion services in Kenya.
“We have a Penal Code that only recognises that surgical termination of pregnancies. It only recognises one thing, only when the life of a woman is in danger,” Opondo told the Star in an interview.
“The police don’t draw the comparison, so they keep on harassing the providers. They use the Penal Code, which has not been amended to align with the Constitution. They harass providers even when they provide services within the Constitution,” she said.
Veteran reproductive health specialist and campaigner Prof Josephat Karanja said the Constitution also allows abortion for survivors of sexual violence, or in cases of incest.
“Survivors of sexual violence resulting in pregnancy experience indescribable pain including post-traumatic stress disorder, flashbacks, nightmares, severe anxiety, depression, bouts of sadness and hopelessness and even suicidal thoughts,” he said.
Prof Karanja said because of the current misalignment between the Penal Code and the Constitution, survivors of sexual violence continue to opt for unsafe abortion, a major contributor to maternal deaths.
In Kenya, 2,600 women and girls die annually from unsafe abortions, which translates to seven deaths daily.
A 2012 study by the Ministry of Health revealed that 465,000 unsafe abortions were performed, of which 158,000 patients received post-abortion care in public facilities at a cumulative cost of Sh432.7 million.
That year, in order to implement the constitutional provision on abortion, the ministry issued a standard and guidelines for preventing and managing unintended pregnancies and the provision of post-abortion.
However, in 2013, the director of medical services issued memos withdrawing this guideline and banning training of healthcare professionals on abortion services and the use of medication for abortions.
The Center for Reproductive Rights immediately filed a suit challenging the actions of the ministry.
In 2019, the High Court ruled that the government had violated the rights of women and girls by withdrawing the guidelines.
It also ruled that the government is obligated to ensure the availability of trained healthcare providers, essential medicines and equipment for the provision of abortion and post-abortion care in all public health facilities across the country.
Edited by A.N
