Why court quashed government efforts to tighten restrictions on abortions
Restricting access to abortions and contraceptive services could have dire consequences for women’s health.
What you need to know:
The High Court has nullified a clause in the National Reproductive Health Policy that required consideration of the unborn child’s health during pregnancy termination.This deals a setback to the government's effort to extend protection of the right to life for a fetus beyond the constitutionally granted measures.
The voided clause in the National Reproductive Health Policy 2022-2032 required the health of the unborn child to be considered when a mother is terminating pregnancy, and its right to life to be taken into account.
It also emphasised that the termination process should ensure the highest attainable standard of healthcare for both the mother and the unborn child.
High Court Judge Chacha Mwita at the Milimani Law Court on January 26, 2024.
However, Justice Chacha Mwita found the contested clause violated Article 26(4) of Kenya's Constitution, which states: "abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by another written law".Read: Contraception: African girls have the right to protection and choices, not stigma and silence!
This effectively reinstates the previous position where the health of the mother was the main consideration over that of the foetus, and pregnancy termination could be performed to save her life.
"The Constitution having provided clearly for the permissible circumstances under which abortion would be allowed, the policy cannot second-guess the Constitution by introducing new conditions or expanding the permissible grounds to include ensuring the highest standard of health of the mother and the unborn child, which falls afoul the Constitution," said Justice Mwita.
He noted the nullified clause improperly expanded permissible grounds for termination to include fetal health considerations.
The decision came in response to a 2022 petition filed by activists Rachael Mwikali and Esther Aoko, alongside civil society groups Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN) and Ambassador For Youth & Adolescent Reproductive Health Programme (AYARHEP).
They challenged both the specific provision and the policy's development process, citing inadequate public participation.
The nullified clause required consideration of fetal health and the right to life. It required termination procedures ensuring the "highest attainable healthcare standard" for both mother and fetus."Termination of pregnancy shall be performed in an environment meeting the minimum medical standards and guided by the opinion of a trained health professional with the proficiency to ensure both the mother and her unborn child receive the highest attainable standard of healthcare," it stated.
Justice Mwita emphasised that Kenyan law permits termination only when a medical professional determines that the mother's life or health is endangered. The procedure must be performed safely by qualified practitioners.
"I agree with the petitioners that by introducing the health of the unborn child, the policy contradicts the Constitution and therefore paragraph 12 of clause 3.4.1 of the policy is inconsistent with the Constitution to the extent that it introduces the highest attainable standard of health of the unborn child during the abortion permitted by the Constitution," said the judge.
Under the Kenyan law, termination of pregnancy or abortion means ending the pregnancy if, in the opinion of a trained health professional, the mother requires emergency treatment or the mother’s health or life is in danger.
It comes after the health professional has examined the mother and made a decision to terminate the pregnancy to save her life.
The process should be performed by a trained health professional through a safe procedure that stops the growth of the pregnancy, thereby saving the life or health of the mother.
Read: Ministry to introduce maternity uniforms for pregnant police officers, chiefs and commissioners
The petitioners filed the petition in 2022 after the Ministry of Health launched the policy following a conclusion of a review process initiated in 2016.
Acting Director General for Health Dr. Patrick Amoth.
Dr Patrick Amoth, the Director-General of Health, stated that the Reproductive Health Policy developed in 2007 needed to be reviewed to align it with the changed legal framework and the Constitution, 2010.
They sued the Cabinet Secretary, the Ministry of Health and the Attorney General.
While striking down the fetal health provision, the court upheld other contested elements, such as Family Planning Language. The court found use of the word "couple" does not exclude unmarried women
The petitioners had claimed that the policy was unconstitutional for using exclusionary language that denies critical reproductive healthcare interventions to the majority of women and girls.
They had also argued that the policy demonstrates bias towards families to the detriment of the rest of the population of reproductive age.
"I do not find any contradiction and the fact that the paragraphs use the word 'couple' does not exclude unmarried women," said Justice Mwita upon examining the submissions.
The petitioners also faulted the policy on the basis that it imposes parental or guardian consent as a condition precedent for a child to access reproductive health care services even in cases of emergency.
They argued that this violates children’s right of access to reproductive health care services. They said the requirement of parental consent had placed an unreasonable hindrance in cases of emergency where a parent, guardian or children officer is not available.
However, the court upheld requirements aligning with the Children Act provisions. It said the petitioners failed to appreciate the fact that parental consent before providing reproductive health care services to children is a legal rather than a policy requirement.
"Requiring parental consent before a child can access reproductive health care services is in the best interest of the child," said Justice Mwita.
The petitioners had also attacked the policy on the grounds that it makes HIV/AIDS testing compulsory for pregnant women.
The contested part says the testing is to “ensure all pregnant women and their families are tested for HIV and those HIV infected access quality HIV care and treatment including ARVs.”
The Attorney General and the Ministry argued that the policy does not contradict the law or other policies, and explained that the policy deals with the need for reduction of HIV & AIDS burden and accelerating reversal of mother-to-child transmission of HIV.
The court maintained compulsory testing to prevent mother-child transmission, adding that without testing, there would be little success in preventing mother-to-child HIV/AIDS transmission or even providing treatment to those already infected.
Also rejected were petitioners' concerns that the policy engenders discrimination against young women below 21 years with regard to reproductive healthcare interventions.
They argued that the policy impedes access to information by young people by precluding those between 18 and 21 years old.
"There is no specific clause in the policy that prohibits women above 18 but below 21 years from accessing reproductive health care services or information," said Justice Mwita, stating there was no fault in the policy.
In regard to claims that there was inadequate public participation, the court noted there were multiple stakeholder invitations issued, public document availability and petitioners' selective participation.
"The policy formulation process is a national exercise," Justice Mwita stated, adding that non-participation by some groups does not invalidate the outcome.
The court found that based on evidence, there was sufficient, meaningful and effective public involvement participation over the policy.
The court said the petitioners also received invitations and attended some meetings, but chose not to attend others.
"It is also important to state here that it cannot be the position in law that if a particular person or group of persons, including the petitioners, did not participate in the policy development and or eventual validation, would invalidate the policy," said Justice Mwita.
Medical and civil rights groups, including the Kenya Obstetrical Gynaecology Society and Katiba Institute, supported petitioners' arguments regarding reproductive rights. They argued that the policy violates freedom of expression, including academic freedom and freedom of scientific research.
Conversely, the Kenya Christian Professionals Forum defended traditional family values in their submissions.
It took the position that the term sexual reproductive health right is contentious and highly divisive since it is not used in the Constitution.
"It is also inconsistent with the law and moral values, especially the right to life, the family as the primary unit of society and parental rights over their children," argued the group.
The judgment clarifies Kenya's legal framework on reproductive health, reinforcing Constitutional primacy in health policy formulation, strict limitations on abortion provisions and balancing of maternal health rights with public health considerations.
The ruling maintains Kenya's position amid ongoing regional debates about reproductive rights and constitutional interpretation.
