Kenya’s restrictive legal and social environment towards abortion endangers women’s lives
By Anthony Ajayi, Meggie Mwoka and Kenneth Juma
Under Kenya’s Constitution, a trained health care professional can legally perform an abortion, in cases of emergency treatment when the pregnancy would endanger the life or health of the woman or there is a risk that the foetus would suffer severe abnormality. However, the current restrictive social, policy, health and legal environment leads thousands of women to resort to deadly methods to terminate pregnancies, such as inserting catheters or sharp objects like knitting needles, hangers, sticks, pipes, coils, wires, and pens into their bodies; ingesting bleach, concentrated tea, detergent and herbs; overdosing on malaria pills, and inflicting bodily harm on themselves. (Center for Reproductive Rights, 2010, p. 13; Mutua, Manderson, Musenge, & Achia, 2018) Unsafe abortion leads to the death of at least 2 600 Kenyan women each year in Kenya (Center for Reproductive Rights, 2010, p. 9), and many more suffer moderate or severe medical complications (Susheela Singh et al., 2013, p. 22). In this article, we highlighted the impact of the restrictive abortion laws in Kenya using a case study and offered some recommendations to mitigate adverse outcomes.
JMM’s story is a case study that reflects the reality of hundreds of thousands of Kenyan women in need of abortion services each year. Her story was used in the litigation to restore the 2012 standards and guidelines for reducing morbidity & mortality from unsafe abortion in Kenya (“Petition 266 of 2015: Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others; East Africa Center for Law & Justice & 6 others (Interested Party) & Women’s Link Worldwide & 2 others (Amicus Curiae)  eKLR,” 2015). JMM is a 14-year-old daughter of a rural tea-picker who earns about US$1 a day. JMM was raped by an older man in 2014 and found out she was pregnant two months after the incident. Aware that victims of rape are often stigmatized, ostracised, and blamed, she desperately turned to the only person she could confide in – an older girl who lives in her neighborhood. The girl introduced her to a quack doctor who facilitated her botched abortion by first giving her injection and later inserting a cold metal instrument into her body. Later in the evening, she started vomiting and bleeding heavily because she had contracted an infection, which quickly developed into a severe complication.
JMM was rushed to the nearby dispensary in her rural home, which was not well-equipped and did not have qualified staff to treat her. After a few hours, she was transferred to the county referral hospital, located about 15.6 km from her home. She was admitted and treated for three days, but the hospital determined that she needed specialized treatment that it could not provide. She was referred to a mission hospital 50 km away. Here she was quickly admitted to the intensive care unit because she could no longer talk at this point. However, this hospital was also unable to provide the specialized treatment she required after admitting her for seven days, so she was transferred to the national hospital in the capital. Here she was treated and discharged after 68 days. Unfortunately, her condition further worsened when she developed chronic kidney disease related to her earlier complications that required a kidney transplant. She nevertheless did not receive a transplant and succumbed to the disease in 2018 because she had no money for her monthly dialysis. JMM’s story is just one of hundreds of thousands of similar cases in Kenya. Every year, healthcare providers attend to approximately 120 000 cases of botched abortions in the country(Susheela Singh et al., 2013, p. 15).
The status quo
Despite the adoption of the 2010 Constitution that provided for a wider framework for the provision of abortion, the penal code has yet to be revised to reflect the language of the Constitution(Hussain R, 2012). According to the Penal code, the penalty for performing an “unlawful” abortion for providers is up to 14 years in prison and seven-year prison sentence for the woman who procured the abortion (Kenya Law Report, 2010, p. 24). As a result, healthcare providers are scared and generally reluctant to offer abortion services. Those who perform abortions are either forced to pay bribes to the police or criminally prosecuted. They are stigmatised and discriminated against and face harassment from the police and the community (Center for Reproductive Rights, 2010, p. 80).
Lack of clarity about who qualifies for an abortion presents additional challenges and causes widespread confusion among healthcare providers. While the Kenyan Constitution allows abortion in cases where the woman’s health is at risk (a 2019 High Court ruling has interpreted this to include cases of rape), some healthcare providers and most Kenyan women lack information on when abortion is allowed, which leads to widespread confusion and misunderstanding.
There are reports of healthcare providers discouraging women from having abortions and failing to discuss it as an option when counseling women who qualify for legal abortions. Women also have limited avenues for redress if they are denied abortion care or mistreated for seeking an abortion. Further, international policies like the Mexico City policy (also known as the Global Gag Rule) contribute to limiting millions of women’s and girls’ access to safe abortion care when they need it(Mavodza, Goldman, & Cooper, 2019).
In 2017, President Trump reinstated and extended the Global Gag Rule to impede up to $9 billion of international health assistance intended for foreign non-governmental organizations involved in providing abortion services. Evidence shows that the Global Gag Rule has led to a decline in the reproductive health outcomes of women in resource-poor countries, leading to more unintended pregnancies and maternal deaths(IPPF, 2019).
Cost is another factor that impedes access to safe abortion in Kenya. While women with financial means often have access to safe abortions in private clinics, most poor women resort to unsafe abortions performed by quacks. Women who meet the legal requirements for abortion are rarely able to access a safe abortion in public healthcare facilities(Center for Reproductive Rights, 2010, p. 80). Women also have to navigate barriers other than cost and restrictive abortion laws. Kenya is a predominantly Christian country, and the church is the leading opposition to liberal abortion law.
Also, community perceptions of abortion, abortionists, and women who procure abortions are mostly negative, with some believing that abortion leads to infertility. Women who seek abortions do not only risk being arrested and prosecuted; they also risk being stigmatized and condemned. The discrimination against women who procure abortions prevent some women from seeking post-abortion care and lead others to carry unwanted pregnancies to term.
The legality of abortion in Kenya
Article 43(2) of the Constitution stipulates that no one may be denied emergency medical treatment, including post-abortion care. A report by the Kenya Legal and Ethical Issues Network (KELIN) states that, according to the constitution, the Health Act of 2017 and the National Guidelines on the Management of Sexual Violence 2014, a woman qualifies to access safe abortion services in the case of emergency treatment, if the pregnancy poses a danger to her life, if the pregnancy resulted from rape, incest, sexual assault, and violation, or if her health is in danger(Griffith Tabith Saoyo, 2018, p. 2).
Different counties within Kenya seem to have different approaches to abortion. In 2017, Makueni County enacted a Maternal Newborn Child Health Act. Section 6 of the Act allows for termination under a wide range of circumstances, including rape, fetal abnormality, and mental incapacity to comprehend the pregnancy. Kilifi County also passed a Maternal Newborn Child Health Act, which provides that the safe termination of pregnancies can be performed in the circumstances outside of emergencies. The Kakamega Maternal Child Health and Family Planning Act of 2017 does not include any provisions that regulate the termination of pregnancy. In the absence of this, the national law remains the guiding principle(Griffith Tabith Saoyo, 2018, p. 6).
In 2019, the Kenyan High Court ruled that withdrawal of the 2012 Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya in 2013 had violated both the right to comprehensive and accurate health information and the right to the highest attainable standard of health for women and girls. (“Petition 266 of 2015: Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others; East Africa Center for Law & Justice & 6 others (Interested Party) & Women’s Link Worldwide & 2 others (Amicus Curiae)  eKLR,” 2015).
This ruling is a big win for women and girls in Kenya. The Court found that the withdrawal of the Standards and Guidelines, the ban on the training of health professionals in performing safe abortions and the use of Medabon, as well as the threat of penal sanctions against health professionals by the director of medical services were unlawful, illegal, arbitrary and unconstitutional. The Court ruled the Standards and Guidelines, and the training curriculum should continue to exist as if they had never been withdrawn. The Court further ruled that abortion is permitted in Kenya if a pregnancy results from rape and if a trained health professional believes it endangers the physical, mental, and social well-being of a woman or girl. This ruling provides the much-needed clarity on who qualifies for abortion in Kenya, but more work needs to be done to increase women’s awareness of the Court’s interpretation.
The way forward
The death toll from unsafe abortions in Kenya is unacceptably high. The families and children who are left behind by the deceased also suffer dire health and socio-economic consequences. Children whose mothers die from unsafe abortion complications are more likely to be abandoned by their fathers, suffer from undernourishment, and drop out of school (Molla, Mitiku, Worku, & Yamin, 2015).
Given the dire consequences of unsafe abortions on the health and well-being of women and girls, there is a compelling need to decriminalize abortion in Kenya. This can be done by amending the country’s Penal Code to reflect the language in the current Constitution and expanding access to quality post-abortion care, including training healthcare providers and providing supplies and reproductive health commodities in public health facilities where the majority suffering from unsafe abortion-related complications are admitted. Finally, community awareness of the abortion law must be improved, and the need for contraceptives and family planning services across the country must be met. This is in line with the Kenyan government’s regional and international commitments to protect the human rights of women and girls.
Center for Reproductive Rights. (2010). In harm’s way: the impact of Kenya’s restrictive abortion law. Retrieved from New York, United States: https://www.reproductiverights.org/sites/default/files/documents/InHarmsWay_2010.pdf
Griffith Tabith Saoyo. (2018). Legal Framework on Provision of Safe Abortion in Kenya. Retrieved from https://www.kelinkenya.org/wp-content/uploads/2018/11/UPDATED-LEGAL-FRAMEWORK-ON-ABORTION.pdf
Hussain R. (2012). Abortion and unintended pregnancy in Kenya. Retrieved from https://www.guttmacher.org/sites/default/files/pdfs/pubs/2008/11/18/IB_UnsafeAbortionKenya.pdf
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Mutua, M. M., Manderson, L., Musenge, E., & Achia, T. N. O. (2018). Policy, law and post-abortion care services in Kenya. PloS one, 13(9), e0204240.
Petition 266 of 2015: Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others; East Africa Center for Law & Justice & 6 others (Interested Party) & Women’s Link Worldwide & 2 others (Amicus Curiae)  eKLR (Kenya Law 2015).
Susheela Singh, Akinrinola Bankole, Ann M. Moore, Michael M. Mutua, Chimaraoke Izugbara, Elizabeth Kimani, . . . Levandowski, B. A. (2013). Incidence and complications of unsafe abortion in Kenya: Key Findings of a National Study. Retrieved from Nairobi Kenya: https://www.guttmacher.org/sites/default/files/report_pdf/abortion-in-kenya.pdf