The nature and wording of Kenyan abortion laws which prevent women from receiving safe abortions have recently come into question. As of 2010, Kenya’s constitution was revised to allow for abortions when the life of the mother is in danger or when the pregnancy was a result of rape and/or incest. However, legal avenues to receive an abortion continue to be restricted. Arbitrary enforcement of the pre-2010 constitution’s anti-abortion rhetoric, which not only banned abortions but also sought to punish those who performed them, causes confusion as to the procedure’s legality. Thus, doctors refrain from offering abortion procedures – forcing women, especially the impoverished and those living outside the capital, to resort to backstreet methods to receive the abortions they need. This discrepancy between what the law theoretically allows and the measures that are feasibly possible for someone in need to take has promoted a culture of precarity and fear for women and their advocates.
The laws’ ambiguous wording makes both those seeking abortions and their doctors targets for arbitrary arrest, and the lack of access to safe abortions, reproductive healthcare, and family planning has pushed many to undergo unsafe and cost prohibitive procedures – even at risk to their health. As it stands today, the Center for Reproductive Rights reports that seven Kenyan women and girls die every day due to unsafe abortion techniques.
“It is about time for the country to recognize the emotional burden of not having access to family planning,” Nairobi City County Women Representative Esther Passaris told the B.B.C.
Until the early 2000s, abortion was not legal in Kenya under any circumstances. After Dr. John Nyamu and two nurses were arrested in 2004 for the murder of two fetuses via an abortion procedure, a crime which could have resulted in the death penalty, media and public outcry forced societal change. (Nyamu and the nurses were all found not guilty.) The case led to the formation of the Reproductive Health and Rights Alliance which precipitated the 2010 constitutional amendment provisioning the right to abortion for at-risk pregnancies. This was followed up in 2012 by the government’s release of guidelines for healthcare professionals regarding the specifics of legal abortions.
While the country has been willing to amend its former conservative stance, much work still needs to be done to protect Kenyan women. The 2012 guidelines and training, for example, were repealed only a year later, after an anti-abortion trend (heavily backed by anti-abortion groups in the United States) swept the country.
As of 2022, Kenya’s high court affirmed the fundamental right to abortion throughout the country and established the illegality of arbitrarily arresting and prosecuting patients and those doctors who performed an abortion. The court further established that criminalizing abortion undermines women’s reproductive rights under the Constitution. But women and their doctors are still facing undue prosecution, especially those coming from the poorer communities which experience higher rates of maternal mortality.
Kenya cannot let this status quo prevail. The Kenyan government must take a hard stance in clarifying and promoting that abortion under certain circumstances is legal – and this must be communicated in the nation’s rural areas, as well as its cities. This will give doctors the freedom to perform necessary abortion procedures without fear of prosecution, allowing women to gain autonomy over their own bodies.
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