Activists protest Court of Appeal ruling on abortion

Hundreds of youth activists and reproductive health advocates marched from Nairobi’s Central Business District to Afya House on Thursday to protest a Court of Appeal ruling in an abortion-related case, saying the decision could affect access to reproductive healthcare services.

Carrying placards demanding justice and protection for women and girls, the protesters expressed concern that the ruling could discourage patients from seeking emergency medical treatment for fear of arrest or prosecution.

The demonstrations followed a Court of Appeal decision overturning a 2022 High Court ruling that had stopped criminal proceedings against a teenage girl identified in court documents as PAK and a clinical officer in Kilifi.

The appellate court reinstated the criminal case and directed that the matter proceed to a full trial.

The case, which has been ongoing since 2020, involves charges under sections 158, 159 and 160 of the Penal Code relating to the alleged procurement of abortion and the supply of drugs to procure miscarriage.

According to court records, PAK was 16 years old when she became pregnant after allegedly being defiled and later lost the pregnancy. Reproductive health advocates said the teenager later sought emergency medical treatment after suffering complications and was subsequently arrested alongside the clinical officer who attended to her.

Speaking during the protests, Martin Onyango, Associate Director for Africa Legal Strategies at the Center for Reproductive Rights, described the case as an example of the legal and healthcare challenges faced by vulnerable girls and healthcare providers.

“PAK was a schoolgirl from a very poor background in Kilifi. She became pregnant and, unfortunately, lost the pregnancy. Instead of receiving care and protection, she was criminalised,” Onyango said.

According to Onyango, the girl was removed from hospital while still receiving treatment before recording a statement in connection with the case.

“The child was removed from the hospital bed. The clinical officer who was treating her was also arrested,” he said.

The case was first heard before a magistrate’s court in Kilifi, where the teenage girl and the clinical officer sought to stop the proceedings. Their lawyers argued that the girl had already lost the pregnancy before arriving at the hospital and required emergency post-abortion care, which they said is lawful under Kenyan law.

However, the magistrate’s court declined to terminate the proceedings, ruling that the issues raised required a full trial to establish the facts. The accused persons later moved to the High Court in Malindi, arguing that their arrest, detention and prosecution violated constitutional rights.

They claimed that patients seeking reproductive healthcare were being unlawfully targeted and that forced medical examinations and arrests conducted in hospital settings were unconstitutional.

In its 2022 ruling, the High Court partly agreed with the petitioners and found that aspects of the process leading to the charges violated constitutional rights.

The court quashed the criminal proceedings and restrained further prosecution, holding that the rights of the teenage girl and the healthcare worker to dignity, privacy, health and protection from cruel or degrading treatment had been violated.

The High Court also raised concerns over the handling of confidential medical information obtained from the hospital without a court order or proper authorisation.

In addition, the court stated that abortion is permitted in Kenya under limited circumstances outlined in Article 26(4) of the Constitution, particularly where a trained health professional determines that emergency treatment is necessary or where the life or health of the mother is at risk.

The court further directed Parliament to develop clearer legislation to guide healthcare providers on the scope of permitted reproductive healthcare services.

That ruling was later challenged at the Court of Appeal by anti-abortion groups alongside the Attorney General.

In its judgment, the Court of Appeal disagreed with the High Court’s decision to halt the criminal proceedings, stating that the trial court remained the appropriate forum to determine the evidence and facts presented by both sides.

“The criminal proceedings provide the requisite judicial platform on which the veracity of the charges stands to be tested,” the Court of Appeal ruled.

The appellate judges further stated that stopping the trial was premature and unjustified in law, adding that courts should exercise restraint when dealing with ongoing criminal prosecutions unless there is clear evidence of abuse of power by investigative or prosecutorial agencies.

The court found no evidence that the prosecution had acted in bad faith or outside its legal mandate.

On the constitutional question, the Court of Appeal stated that abortion is not an absolute right under the Constitution.

“Abortion is not a fundamental right guaranteed under the Constitution; on the contrary, it is expressly prohibited but with exceptions in limited circumstances under Article 26(4),” the court ruled.

The judges also stated that claims relating to unlawful arrest, forced medical examination and violation of privacy could still be raised during the criminal proceedings and that constitutional issues do not automatically invalidate a criminal trial.

The Court of Appeal subsequently set aside the High Court judgment in its entirety and reinstated the criminal cases in Kilifi for hearing and determination on their merits.

It further directed that each party bear its own legal costs, citing the public interest nature of the matter.

The ruling has since drawn reactions from reproductive health organisations and activists, who say it could affect how healthcare workers respond to emergency reproductive health cases.

Some activists also expressed concern that women and girls may avoid seeking medical treatment due to fear of legal consequences.

According to Onyango, the Court of Appeal shifted focus away from alleged rights violations and addressed broader constitutional questions relating to abortion law in Kenya.

“The Court of Appeal stated that abortion is not a fundamental right. In doing so, it rolled back gains made under the 2010 Constitution regarding reproductive healthcare rights,” Onyango said.