The hidden clause that complicated women’s right to safe abortion
In 2022, the National Reproductive Health Policy (2022-32) introduced a provision that was inconsistent with the Constitution’s guarantee of the right to life.
What you need to know:
- When Kenya’s Ministry of Health introduced the National Reproductive Health Policy (2022–32), a single line complicated access to legal abortion.
- The High Court has now struck down that clause, saying it unlawfully expanded healthcare provision and risked women’s lives.
- Justice E.C. Mwita reaffirmed women’s right to safe and legal abortion under Article 26(4).
Something happened in 2022 that completely changed one aspect of women’s access to abortion in Kenya. It complicated matters and made it almost impossible for women to imagine accessing the service, even under constitutionally permitted circumstances.
In July 2022, the Ministry of Health unveiled the National Reproductive Health Policy (2022–32). Within it, they introduced a provision that was inconsistent with the Kenyan Constitution’s guarantee of the right to life.
Article 26(4) of the Constitution allows abortion under four conditions: when, in the opinion of a trained health professional, it is necessary for emergency treatment; when the life or health of the mother is in danger; and if permitted by any other written law that explicitly allows abortion under specific circumstances.
The new policy included a section on reducing maternal, perinatal, and neonatal morbidity and mortality. In Section 3.4.1(12), it states: “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.”
With that single clause, the policy introduced a new consideration not recognised in the supreme law: the unborn child. This became a major bone of contention for sexual and reproductive health and rights advocates.
Four petitioners—Rachael Mwikali, Esther Aoko, the Ambassador for Youth and Adolescent Reproductive Health Progtramme, and the Kenya Legal and Ethical Issues Network on HIV/Aids—moved to the Constitutional and Human Rights Division of the High Court in Nairobi, asking the court to declare the provision unconstitutional and a violation of the right to reproductive health.
“Introducing the aspect of the child goes beyond what the Constitution says. It’s like a backdoor attempt to amend the Constitution,” explains Allan Maleche, the advocate for the petitioners.
Holding the policy in one hand and the Constitution in the other, health professionals were left in a dilemma—and in that confusion, a woman’s life could hang in the balance.
Allan illustrates: “For example, a 22-year-old woman is 10 weeks pregnant. She develops severe complications, say cardiac failure, and a doctor determines that continuing the pregnancy endangers her life. Under Article 26(4), the doctor may terminate the pregnancy to save her life. Under the policy, however, the doctor must take into account the health of both the mother and the unborn child.
“In practice, some health workers may delay or hesitate, fearing they must prove they considered foetal health. Others may refer the case for committee review or seek multiple opinions to ‘cover themselves’. In a hostile or conservative facility, this could easily be misused to deny or delay a lawful procedure.”
Thanks to the petitioners, that complication has now been resolved. In a judgment delivered on September 2, Justice E.C. Mwita agreed that by introducing the health of the unborn child, the policy contradicted the Constitution. He declared: “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.”
Justice Mwita reaffirmed: “The Constitution, having clearly provided for the permissible circumstances under which abortion is allowed, cannot be second-guessed by a policy that introduces new conditions or expands the grounds to include ensuring the highest standard of health of the mother and the unborn child, which falls afoul of the Constitution.”
