Constitution @15: Kenya still fails women on reproductive rights and bodily autonomy
Unsafe abortion remains a leading cause of deaths and injuries related to pregnancy in Kenya.
What you need to know:
- The Constitution enshrined reproductive rights, yet women and girls continue to face denial of services, unsafe abortions, and systemic barriers that undermine their dignity and autonomy.
- Despite landmark court decisions affirming access to abortion, freedom from forced sterilisation, and reproductive autonomy, outdated laws and poor implementation continue to frustrate women’s rights.
Fifteen years ago, Kenyans celebrated the recognition and inclusion of reproductive rights in the Constitution. For the first time in the country’s history, the right to the highest attainable standard of reproductive healthcare was guaranteed under Article 43(1)(a), and the right to access abortion in certain circumstances was provided for under Article 26(4). It was a milestone worth celebrating.
The Constitution also enshrined guarantees of equality and freedom from discrimination on the basis of sex, health status, and socioeconomic status, further bolstering the promotion, respect, and protection of women’s sexual and reproductive health. The full implementation of these provisions would mean that women enjoy complete reproductive autonomy, enabling them to live with dignity.
Reproductive autonomy goes beyond access to healthcare services. It encompasses the right to make informed choices about sexual health, childbearing, and contraception; access to safe and legal abortion; respectful maternity care; and protection from harmful practices. At its core, it is about bodily autonomy, access to information, and privacy—the very issues that led advocates to push for their inclusion in the Constitution. Yet, these rights continue to be the basis for persistent violations of women’s and girls’ rights.
Since 2015, there has been a wave of litigation aimed at breathing life into these constitutional guarantees. Lawyers and reproductive rights activists have challenged the injustices faced by women and girls, pressing courts to affirm their rights.
For example, in the cases SWK & Others v MSF France & Others, Petition 605 of 2015, and LAW & Others v Marura Nursing Home & Others, Petition 606 of 2015, the courts condemned the forced sterilisation of women living with HIV, affirming that every woman—regardless of health status—has the right to decide if and when to bear children, supported by accurate and comprehensive information.
In other landmark rulings, such as FIDA-Kenya and Others v Attorney General and Others, Petition 266 of 2015, and PAK & Another v Attorney General & 3 Others, Petition E009 of 2020, the courts affirmed that women and girls have a constitutional right to access abortion in specific circumstances, and that blanket criminalisation of abortion violates their rights—particularly those of survivors of sexual violence.
The courts rightly observed that blanket criminalisation deters providers from offering safe services, intimidates those who need them, and ultimately fuels unsafe abortions. This aligns with 2020 research by the Guttmacher Institute, which found that up to 77 per cent of abortions in Sub-Saharan Africa were unsafe in countries where abortion was highly restricted.
These decisions made it clear that at the heart of reproductive rights lies the freedom to choose when, and when not, to give birth. They also emphasise the need for comprehensive information on sexual and reproductive options and ensure services are available to those who need them most.
However, court victories alone have not translated into real change for women. Many are still denied access to information that would allow them to make informed reproductive choices. This is evident in the failure to provide comprehensive and age-appropriate sexuality education, particularly for adolescent girls, and in the legal and administrative barriers that criminalise those seeking services.
Such failures amount to blatant violations of constitutional guarantees, perpetuating human rights abuses and contributing to high rates of maternal mortality and morbidity. This must end.
As we mark 15 years of Katiba, we cannot afford to let constitutional promises remain lofty but elusive. First, we must implement progressive court decisions so that constitutional rights are not confined to paper but bring meaningful change to women’s lives. Secondly, we must reform outdated colonial-era laws and policies that criminalise access to fundamental reproductive health services and perpetuate stigma. These laws strip women and girls of their rights and undermine their autonomy and decision-making.
Finally, we must invest in strong health systems that guarantee access to accurate information and essential commodities to support women in making reproductive decisions. Our experience at the Centre for Reproductive Rights, particularly in strategic litigation, shows that the marginalisation of women—driven by discriminatory practices and socioeconomic inequalities—continues to undermine their well-being.
This disproportionately affects adolescent girls, who are often denied access to the information they need to make informed choices. Their voices must remain central in legal, policy, and advocacy interventions, through an intersectional approach that recognises their lived realities and diversity.
The Constitution promised women dignity, equality, and autonomy over their reproductive choices. Yet, the gap between the law and lived reality remains wide, leaving the promise unfulfilled. Fifteen years on, as we celebrate International Safe Abortion Day under the theme “Safe Abortion is Life-Saving Healthcare” and commemorate our transformative Constitution, we must recommit to defending it, implementing its guarantees, and ensuring it reflects the realities of those it was designed to protect.
The writer is the Legal Advocacy Adviser for Africa at the Centre for Reproductive Rights.
