The Appeals court is set to deliver a landmark judgment that could redefine reproductive rights.
The case follows consolidated appeals challenging a 2022 High Court decision that held that abortion was a constitutional right, though not absolute, and consequently directed the government to develop a legal and policy framework to guide access to safe abortion services.
The appeals were filed by a group of petitioners, including faith-based organisations, activists and the State law office, who argued that the court misinterpreted the constitution by expanding abortion access to a fundamental right.
Part of the submissions by the petitioners was a 2019 decision by a five-judge bench that declared abortion illegal, safe for situations described in the constitution.
EMERGENCY TREATMENT
At the heart of the dispute is the interpretation of Article 26 (4) of the Constitution that permits abortion only if, a trained health professional, finds it necessary for emergency treatment or if the life or health of the mother is in danger.
The High Court decision, now under appeal, had found the abortion laws having violated women’s right to health, privacy, dignity and freedom from cruel treatment, consequently ruling that access to safe abortion services, within constitutional limits, was a protected right.
The ruling that faulted the State over failure to provide clear guidelines was celebrated by reproductive rights crusaders but sparked resistance from religious and lobby groups.
DEFINED INSTANCES
The petitioners argue that recognising abortion as a fundamental right undermines the constitutional protection of life and contradicts earlier court decisions that affirmed the practice illegal, unless under the defined instances.
They have warned that broader interpretation of the constitution clause could open the door to unrestricted abortion in Kenya.
But lobby groups and reproductive health advocates including Centre for Reproductive Rights criminalization had driven thousands of women and girls to unsafe abortions, contributing to maternal deaths.
They argue that constitutional rights should balance protection of life with women’s rights to health and dignity.
FAR-REACHING IMPLICATIONS
The decision by Justices Kibaya Laibuta, Grace Ngenye and Gatembu Kairu is expected to have far-reaching implications especially on healthcare policies and reproductive health services in the country.
If the High Court ruling is upheld, the government will be compelled to enact comprehensive legislation and guidelines on abortion care, helping expand access to the services, within the constitutional guidelines.
