In a judgment already welcomed by many, but likely to prove hugely controversial, the high court in Kenya has decided a constitutional petition centred on the question of whether – and under what circumstances – abortion is lawful in that country. The case involved a teenage girl who presented herself to a health centre because she was experiencing pregnancy ‘complications’. Diagnosing a partial abortion, the clinical officer completed the abortion, but both the patient and the clinic officer were subsequently arrested and charged. They later brought a wide-ranging petition to the high court contesting the lawfulness of the action taken against them. In his decision, Judge Reuben Nyakundi said that it was a woman’s right to access a safe abortion and that legal action taken against the girl and the clinical officer was ‘marked with irregularities from the outset’. However, the case once again illustrates a problem, stressed a few years ago in another high court constitutional petition on abortion: the constitution’s provision on abortion is ambiguous, and no guidelines or legislation are in place to clarify under what conditions an abortion would be legal. As a result, both the women who might seek an abortion, and the doctors or clinical officers who could offer the procedure, are unsure about what is allowed. The situation is so uncertain that a woman could be arrested and charged even if the abortion was spontaneous rather than procured, while a doctor or clinical officer could also be charged even if they are merely attending to the aftermath of an abortion.
The first thing that strikes anyone reading this judgment is what happened to the two people in whose name the application was brought.
PAK was a teenage student, in form two at a secondary school. She became pregnant, but at some point experienced complications including severe pain and bleeding. She reported to a medical clinic for help and was seen by a registered clinical officer, the second petitioner. He concluded that she had ‘suffered a spontaneous abortion’ and carried out a manual vacuum evacuation, the normal procedure for an incomplete spontaneous abortion.
Afterwards, PAK was returned to the ward to recuperate.
Later, a number of plain-clothed police officers ‘stormed’ the clinic. They demanded PAK’s treatment records and confiscated them from the clinical officer.
PAK and the clinical officer, as well as two female employees from the clinic, were then arrested and taken to the police station. The next day PAK was forced to undergo a medical examination at a hospital, and the day afterwards she was charged with procuring an abortion. The clinical officer was similarly charged.
On top of that, the local children’s officer applied for an order to send PAK to a children’s home. Further, the children’s officer wrote to the head teacher of PAK’s school, informing him of the girl’s encounter with the criminal justice system, that she had procured an abortion and that she was the subject of criminal proceedings.
The children’s officer also became involved in getting the girl to attend court, with her parents.
In the wake of those events, the two petitioners brought a constitutional challenge in the high court, claiming that a number of their rights were infringed. Among others, they argued that the constitution allows abortion under certain circumstances and that the constitutional rights of both had been infringed.
The precise wording of the crucial constitution section is that ‘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 any other written law.’ As academics and judges have pointed out, the wording is ambiguous and represents a compromise between different views expressed at the drafting stage.
The petitioners challenged a wide range of decisions and alleged infringements of rights associated with their arrest and prosecution. For example, they claim that the arrest and prosecution of the two was an abuse of process, and that forcing the girl to undergo a medical examination violated her right to dignity and her right to privacy as well as her fair trial rights for being contrary to the rule against self-incrimination.
They said that the constitution provided that abortion was allowed in certain situations and quoted an earlier case in which blanket criminalisation of abortion was found to be unconstitutional.
Among the long list of orders that they wanted the court to make was one that would compel the attorney general, within 90 days, to forward a Bill to the national assembly for amending the penal code so that it was in line with the constitution on questions of abortion.
In response, the attorney general and others said that the petitioners wanted to the court to interfere with the independence of the courts and the office of the public prosecutor. They also claimed that there had been ‘no emergency’ at the time the clinical officer performed the procedure and so he was not allowed to have carried it out.
The judge said he had to decide whether there was a lacuna in the current statutory scheme; whether several challenged sections of the penal code were unconstitutional; whether the constitutional rights of the two petitioners were violated; whether the criminal proceedings should be set aside and whether the AG should be compelled to introduce a Bill amending the penal code. Further, he had to decide whether all police officers and prosecutors should be advised not to arrest and harass trained health professionals providing lawful abortion services.
The judge began by noting that where formal legal channels to abortion were lacking, women resorted to other means to end unwanted pregnancies. He also noted the lack of guidelines for abortion when it complied with the constitution.
Abortion was illegal in Kenya but the country’s constitution and various international instruments provided a legal framework that reaffirmed the reproductive rights of women.
Access to safe abortion services was a human right, said the judge, and forcing someone to carry an unwanted pregnancy to term, or forcing them to resort to an unsafe abortion was ‘a violation of their human rights’.
Mental health risks
In many cases, those women who were forced to resort to unsafe abortion also risked prosecution, punishment, imprisonment and could be excluded from ‘vital post-abortion health care’. As this put the woman’s life in danger, it violated her right to life.
He quoted a number of international bodies, including the World Health Organisation, and then commented, ‘It is my finding that restrictive abortions laws, coupled with lack of effective laws giving effect to [the constitutional provision on abortion], expose women and girls to mental and physical health risks’ often associated with unsafe abortion. It also stigmatises those who sought abortion and thus violated their right to life and to the ‘highest attainable standards of health’.
He said he fully associated himself with the view that protecting access to abortion allowed vital constitutional values to become effective. These included dignity, equality and bodily integrity.
Quoting Roe v Wade, the landmark 1973 US judgment now, ironically, under reconsideration in the US by a conservative supreme court, Judge Nyakundi said he agreed that the right to terminate a pregnancy was fundamental and the decision whether to do so was fundamental to a woman’s ‘personal liberty’.
Faced with the constitutional statement that life begins at conception, he suggested that in a democratic state ‘its citizens are the owners of the constitution’.
He said that parliament should ‘fast track legislation’ that would provide for ‘access to safe abortion for women in Kenya’ and to make the provisions of the constitution real.
He was aware that the ‘timely’ Reproductive Healthcare Bill 2019 was before parliament. According to the mover of the bill, it was meant to ‘actualise’ the constitutional guarantee that every person had the right to the highest attainable standard of health, ‘including the right to reproductive health’.
It was imperative that a new law be enacted stipulating the conditions that would make procuring an abortion an offence.
Did the current penal code provisions on abortion infringe the right to life, dignity and freedom and security of the person? A literal interpretation of these provisions showed them in violation of the constitution, he concluded.
He took the view that criminalising abortion through the penal code, when there was no statutory or administrative framework setting out how women were to access therapeutic abortion in circumstances provided for in the constitution, impaired women’s reproductive rights. Related to this, the clinical officer in this case had provided proof of his qualifications as a health professional and yet he had been arrested.
Should the criminal proceedings in the magistrates court be quashed?
The first petitioner was a child at the time of the alleged offence. For the charges to stand, ‘there had to be prima facie evidence that the alleged abortion was conducted outside [the relevant article] of the constitution.’
But the prosecution failed to meet these criteria. ‘They did not establish that the health professional was unqualified to conduct the procedure or that the life of the mother was not in danger and in need of emergency treatment that would prevent the worsening of her medical condition.’
Because there were no laws and policies on access to safe abortion, there was disagreement about what constituted a threat to a woman’s life. Under these conditions, ‘I find that the charges and proceedings were unfounded and should be quashed as there was no prima facie evidence that the abortion was conducted outside’ the constitution’s stipulations.
What about the alleged violation of the girl’s rights? The respondents had not shown that they provided her with health care after they took her from the clinic under arrest. This was a ‘gross violation’ of her right to health care. ‘I further find that her arrest was degrading and inhumane. … It is crystal clear that her rights … were grossly violated.’
Further, she was ‘seized from the hospital bed by arresting officers’ without legal representation. How would an unrepresented minor have managed police interrogation, the judge asked. The statements she signed without legal representation were of ‘questionable evidentiary value’ and the situation offended her constitutional right to refuse to give self-incriminating evidence.
What should the court do about the petition that it should issue orders against the police, the prosecution and the attorney general?
The judge said these orders would have been granted if it had been shown that the actions sought were actions that the respondents were legally bound to perform. But they were ‘at the discretion of the respondents’ and so the court couldn’t compel them to act.
The police had exercised their wide powers against the two petitioners ‘in complete disregard to … the right to privacy, security, dignity’. But this did not mean that it was a suitable case in which to award damages for these constitutional infringements.
In the end the court held that it would declare that parliament should enact an abortion law and public policy framework to provide for the exceptions envisaged in the constitution.
It declared that the criminal proceedings against the two petitioners were ‘marked with irregularities from the outset’; that the forced medical examination to which PAK was subjected violated a number of her constitutional rights and that a trained health professional, licensed to practice in Kenya, would not be guilty of an offence in procuring an abortion where this was done in good faith.
Further, that the right to private communication between patient and medical officer was protected by the constitution. Thus, the police and prosecution were prohibited from criminalising such communications ‘unless compelled by the due process of the court.’
He also ordered that the parties were to bear their own costs.
A 2015 journal article quotes Kenya's 2010 constitution which permits abortion ‘if the life or health of the woman is in danger’. But, says the article, there is ambiguity about the meaning of the constitutional provision that abortion is allowed ‘to protect the woman’s health’.
As a result, medical providers ‘are unsure of whether they would be protected by the constitution if they were to provide abortions under the health clause’. No new legislation has yet been passed that would clarify the situation; and women who might want abortions ‘are often not aware of conditions under which abortion may now be deemed legal in Kenya.’
It is exactly this uncertainty that can be plainly seen in the latest judgment on the subject and in the facts that led to the litigation.