Litigation on abortion in Kenya: Inside the legal battles redefining reproductive rights
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By Doris Kathia
Imagine being a 17-year-old girl, lying in a hospital bed, bleeding and in pain after losing a pregnancy. You expect treatment. Instead, the police arrive. They take your medical records, arrest you from your hospital bed, and later charge you with procuring an abortion.
This is not a hypothetical story, but a reality of what happened to PAK in Kilifi. The PAK and Salim Mohamed case has become one of the most important legal battles in Kenya's continuing struggle over abortion and reproductive rights. When a woman or girl seeks medical care after a pregnancy loss, does the health system see a patient in need of care or a potential criminal?
The answer should be obvious, right? But not in Kenya. Let me tell you why. In September 2019, PAK went to a health facility after experiencing severe abdominal pain, vaginal bleeding, and dizziness.
According to court records, the health provider who attended to her concluded that she had suffered an incomplete abortion and provided post-abortion care. Two days later, police arrested her from her hospital bed. She was taken to a police station, detained, and later charged with procuring an abortion. Salim Mohamed was separately charged with administering drugs that allegedly caused her miscarriage. Think about that for a moment.
A girl who had just experienced a pregnancy loss was not simply treated as a patient. Her medical experience became evidence in a criminal investigation. This makes the PAK case much bigger than one individual.
The case exposed one of the extreme contradictions in Kenya's reproductive health framework. Article 26(4) of the Constitution does not impose an absolute ban on abortion. It says abortion is not permitted unless, in the opinion of a trained health professional, there is a need for emergency treatment, the life or health of the mother is in danger, or abortion is permitted by another written law.
At the same time, sections 158, 159, and 160 of the Penal Code criminalise attempts to procure an abortion, a pregnant woman attempting to procure her own miscarriage, and the supply of drugs or instruments intended to cause an abortion. This creates a legal grey area that has real consequences in hospitals and communities.
In March 2022, the High Court held that abortion was a fundamental right, although not an absolute one, because Article 26(4) of the Constitution places limits on when abortion may be permitted. The court also recognised a gap between the Constitution and the criminal provisions dealing with abortion, and called on Parliament to develop a clearer legal and policy framework. However, instead of the judgment ending the battle, it opened a Pandora's box.
The case was appealed, and the matter eventually reached the Court of Appeal in Malindi, and the decision took a different position from the High Court. The Court of Appeal rejected the idea that abortion itself is a fundamental constitutional right, interpreting Article 26 as protecting the right to life while allowing abortion only within the limited circumstances provided for in Article 26(4) and other written law. In the court's words, abortion is not a fundamental right guaranteed by the Constitution. Rather, it is prohibited subject to specific exceptions.
The Court of Appeal also overturned the High Court's decision to stop the criminal proceedings against PAK and Salim Mohamed. It held that the criminal cases should proceed so that the allegations could be tested before the trial court.
This confusion determines how women and girls can be affected and create fear, and how healthcare providers understand the protection available to them and cause hesitation in providing care to those who need it. It also shapes how police investigate, how prosecutors charge, and how courts interpret abortion-related cases. And when the law is unclear, it is often the person with the least power who pays the highest price, in this case, a woman or a girl.
On the other hand, the Court of Appeal acknowledged that abortion can be permissible under the Constitution. It also recognised that the prosecution must establish the element of unlawfulness when prosecuting offences under sections 158, 159 and 160 of the Penal Code. It means the Constitution does not say that every abortion is a crime. The problem is that this section is still poorly understood by many people, including in the courts, healthcare providers, and many citizens of Kenya. These gaps can lead to delays, deaths due to complications and excessive bleeding, and even reluctance to provide post-abortion care. This, to me, is very concerning because, if a woman experiencing a miscarriage is afraid to seek medical attention because she fears arrest, then the law has moved beyond regulating abortion. It has begun to influence whether women feel safe seeking healthcare at all.
Under Article 43 of the Constitution, regardless of the criminal proceedings, every person remains entitled to healthcare, including reproductive healthcare. We cannot build a functioning health system where women have to first prove their innocence before receiving emergency care. We also cannot ignore the reality that unsafe abortion remains a public health concern.
Over the years, many women die from complications of unsafe abortion, including haemorrhage, sepsis and uterine perforation, placing additional pressure on already constrained public health facilities. Healthcare should not become a crime scene. Yet Kenya continues to operate with a framework in which constitutional exceptions, criminal sanctions, health policy and professional practice do not always speak clearly to one another.
I keep asking myself: Does Kenya's Constitution mean what it says about health, dignity, privacy and reproductive healthcare? Can our justice system protect rights without making vulnerable people more vulnerable? What happens when a woman walks into a hospital in pain; does one reach for a stethoscope, or for handcuffs? Does the health system see a patient first, or a potential criminal? Kenya needs clarity.
The Penal Code sections 158, 159, and 160 must be amended to remove the contradiction with what is provided in our constitution. Doing so will provide clear guidance for the police and prosecutors on when criminal law applies. And Parliament and the Ministry of Health must confront the gaps that have allowed constitutional rights and criminal provisions to pull in different directions.
PAK represents every young girl and woman in Kenya. Her case reminds us that behind every constitutional provision is a human being whose life can be profoundly affected by how the law is interpreted. It is time for the Kenyan society to decide whether reproductive healthcare will be governed by clarity and compassion or by fear and punishment.
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Ms Kathia is a Human Rights Defender and a communications expert
