In Kenya, abortion on demand is illegal. It is specified in Article 26 of the Constitution 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.” A Supreme Court ruling from 2019 allows for abortion if the pregnancy is the result of rape.
As Tess C tells us, abortion is stigmatized and veiled in misconceptions, and they are still carried out. This is not specific to Kenya but is a broader issue that concerns women in many parts of the world. Stigmatization surrounding abortion goes for both abortion seekers and providers, and comes from lack of sexual education and knowledge, which again makes abortion a taboo subject. Women fear being exposed and shunned by their society for having an abortion, regardless of if it is a legal one or not.
Seeing as it is difficult to access safe abortion procedures due to the illegality, many women turn to unsafe abortions and risking their lives in finding an abortion provider, not knowing if the procedure will be executed in a safe manner. The numbers of clandestine abortions are high, as is the rate of maternal mortality. 1 in 5 cases of maternal mortality are in connection to unsafe abortions; seven Kenyan women die every day due to complications from unsafe abortions. The abovementioned stigmatization of abortion seekers manifests itself in post-abortion care (PAC) too, as many do not seek appropriate care after a botched abortion in fear of stigmatization.
The 1970 Penal Code Act criminalized abortion and was the reigning abortion law until a new Constitution was adopted in 2010. The Penal Code Act was highly restrictive, only permitting abortion in order to save the pregnant woman’s life. Articles 158-160 of this law outline how abortion is criminalized.
158. Attempts to procure abortion.
Any person who, with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for fourteen years.
159. The like by woman with child.
Any woman who, being with child, with intent to procure her own miscarriage, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a felony and is liable to imprisonment for seven years.
160. Supplying drugs or instruments to procure abortion.
Any person who unlawfully supplies to or procures for any person any thing whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman whether she is or is not with child, is guilty of a felony and is liable to imprisonment for three years.
The 2010 Constitution upholds everyone’s right to life, and that all lives begin at conception. With Article 26 of the 2010 Constitution, abortion within certain parameters is permitted, whilst it is still punishable according to the 1970 Penal Code Act. Article 26 reads: “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.” With this new abortion law, the clause “health of the mother is in danger” has been a source of conflict, with some criticizing that it opens up for abortion on demand. Legislation that has come into effect since 2010 does not clarify the exact parameters of what the clause entails, neither for abortion seeking women nor health care providers.
In 2012, the Ministry of Health issued the comprehensive Standards and Guidelines on Reducing Maternal Mortality and Morbidity from Unsafe Abortion on how to implement the new abortion law, setting the standard for abortion access and PAC, as well as training for abortion providers. In 2014, the guidelines were withdrawn by the Ministry, banning training of abortion providers, use of abortion services and medication. As a result, the legality of abortion is again up in the air, with women and providers again fearing prosecution if terminating a pregnancy.
In 2019, the Kenyan Supreme Court ruled that abortion would remain illegal in Kenya, unless the health of the pregnant woman is at risk, and by health meaning “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. The justices nullified the withdrawal of the Standards and Guidelines in 2014. Moreover, they clarified the abortion law in one regard: if the pregnancy is the result of a sexual assault, the abortion can legally be carried out by an expert. This ruling was historical in an African context, as it is the first ruling on the continent addressing abortion access as a constitutional right.
Abortion is still a difficult issue in Kenyan society. The legal limbo of abortion access, coupled with stigmatization and fear of prosecution, are amongst the reasons for the high maternal mortality rate in Kenya. Health care providers are reluctant to provide the service as they have no legal backing. That does not mean the debate about abortion access and care has died down. There have been attempts by liberal members of parliament to alter the abortion law and allow for abortion on demand, backed by organizations and activist groups based in Kenya. However, the liberal politicians are met with backlashes and threats by conservative lobbies, in a country where the majority of the population identifies as Christian. The proposed Reproductive Healthcare bill of 2019, which was wrongfully tagged as the “abortion bill”, as it mentioned abortion in five of 39 articles but was more focused on new reproductive technologies, was canceled by the Christian lobby before it reached the floor.
Written by: Tilla Solli for The Women's Museum of Norway
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