High Court to decide on landmark post-abortion care case
Prestige Health Points Medical Clinic, a family planning clinic in Nairobi. Detectives raided the clinic last year, and arrested five workers on suspicion of procuring illegal abortion.
What you need to know:
- In a case before Malindi Judge Rueben Nyakundi, the the High Court has been asked to compel the State to amend the penal code to declare that the prosecution women seeking post-abortion care is a violation of their rights.
- The Constitution guarantees access to emergency medical treatment and permits abortion when, in the opinion of health professional, there is need for emergency treatment, or the life of the pregnant woman is in danger.
The High Court is set to deliver a landmark decision seeking to stop the arrest and prosecution of healthcare providers and women of reproductive age, who seek post-abortion care.
In a case before Malindi Judge Rueben Nyakundi, the court has also been asked to compel the government to amend the penal code to align with the Constitution and declare that the arrest, detention, and prosecution women of reproductive age for seeking post-abortion care and forcing them to undergo medical examination is a violation of their rights.
In the matter, police arrested a girl then aged 16 years, in September 2019, after she sought assistance from a clinic after losing her pregnancy.
The girl identified as PAK, had experienced pregnancy complications, including severe lower abdominal pain, vaginal bleeding, and dizziness.
She sought medical attention at a clinic in Malindi and after examining her, Salim Mohammed determined that she had lost the pregnancy and proceeded to provide her with post-abortion care.
Abortion care
The two were arrested and taken to Ganze Patrol base before they were charged before a Kilifi magistrate.
Despite the existing legal provisions, PAK and Momammed were charged with the offence of abortion under sections 158 and 160 of the Penal Code , for seeking and providing abortion care.
The clinical officer was charged with an attempt to provide abortion contrary to section 158 of the penal code, with the prosecutor stating that Mr Mohammed, together with others, gave PAK drugs that led to her miscarriage. He was further charged with supplying drugs to procure abortion contrary to the law.
The two, however, moved to the High Court with the help of Centre for Reproductive Rights, a non-governmental organisation, challenging their prosecution. They argued that it was unlawful for the government to charge them for providing and receiving post-abortion emergency care, which is recognized as a right under the constitution.
“The Constitution recognised healthcare as a right and protected access to reproductive health care services, including abortion from restrictions not backed by any law or policy consideration,” the NGO argues.
Written law
The Constitution guarantees access to emergency medical treatment and also permits abortion when, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the pregnant woman is in danger, or when allowed by any other written law.
It is their argument that the government has been non-committal in approaching and updating statutes affecting women's reproductive healthcare.
Other than seeking to compel the government to amend the penal code to align with the Constitution, the group wants the court to issue a circular to relevant agencies to desist from illegally arresting, detaining, and prosecuting healthcare providers and women and girls for providing and accessing legal abortion care.
They also seek a permanent injunction barring the arrest, detention and prosecution of any patient seeking legal abortion care or any trained health professional providing abortion care permitted under the law.
“That the court should declare that the arrest, detention, and prosecution of PAK and other women of reproductive age for seeking post-abortion care and forcing them to undergo medical examination is a violation of their fundamental rights under the constitution,” the petition reads.
