1. Sexual and Reproductive Health Rights

Kenya’s constitution of 2010 provides for the right to life and specifically states that the life of a person begins at conception. It specifically does not permit abortions unless, in the opinion of a trained professional, there is a need for emergency treatment or to save a mother’s life or if permitted by any other written law. The constitution however guarantees every person the right to health care services including reproductive health care. This right to health care is extended specifically to children, minorities, and marginalized groups.

The Health Act aims to protect, promote and fulfil every person’s right to the highest attainable standard of health including the right to reproductive health care services. The Health Act provides that every person has the right to reproductive health care and places a duty on the National health system to put in place measures to provide for a comprehensive programme to advance reproductive health.

The Children Act in providing for children’s right to healthcare ensures that children shall have the right to the highest attainable standard of reproductive healthcare services subject to the express consent of the child’s parent or guardian. The Children Act also states that every child shall have the right to access to age-appropriate information on reproductive health amongst other aspects of health.

Section 35(3) of the Sexual Offences Act provides for the Minister responsible for health to prescribe circumstances for survivors of sexual offences to access safe abortion from public hospitals or institutions.

2. Restrictions to Sexual and Reproductive Health Rights

Kenya’s Penal Code criminalizes attempts to procure abortions, any intent by a woman to procure her own abortion, and supplying drugs or instruments to procure abortions. The penal code however allows for surgical operations to save a mother’s life if the operation is reasonable having regard to the patient’s state and the circumstances of the case. The Pharmacy and Poisons Act prohibits advertisements relating to abortion including advertisements that may lead to the use of the advertised drugs, appliances, or articles for the procuring of miscarriages of women. In the case of NM v. The Republic, the appellant, who was found guilty of supplying drugs to procure the abortion of a young girl, filed an appeal on a number of grounds, including the fact that the trial magistrate erred in law and fact by failing to find that the entirety of the prosecution’s evidence was founded on no evidence and that the elements of the offense were not sufficiently established to support a conviction. The High Court sided with the appellant, finding that the primary witnesses only indicated that the victim was given medications and that she miscarried the next day without elaborating on the precise drugs, dosage, or method used to end the pregnancy. This is a clear demonstration of the burden of proof that lies with the prosecution in proving such types of cases.

The Prohibition of Female Genital Mutilation Act, aims to safeguard women and girls from being violated in terms of their physical or mental integrity. The petitioner in Kamau v Attorney General & 2 others; Equality Now & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae) – Constitutional Petition 244 of 2019 [2021] KEHC 450 (KLR) challenged the provisions of the act, arguing that they violated women’s freedom of choice and their right to respect and uphold their culture, religion, ethnic identity, and beliefs. The petitioner further argued that the statute was discriminatory and that it limited women’s access to the best healthcare and health standards possible. The court in dismissing the case provided that the Constitution values freedom, but it has reasonable limitations and does not inscribe self-harm in its exercise. The Penal Code prohibits offenses like attempted suicide and abortion. The court further ordered the Attorney General to send proposals for the amendment of the said act with a view to prohibiting all harmful practices of FGM that were set out in the judgment.

3. Policies

Kenya has many Sexual and Reproductive Health and Rights policies for both women and adolescents. The National Reproductive Health Policy (2022-2032) reflects the Kenyan government’s commitment to ensuring all persons have access to the highest standards of reproductive services. The policy is complementary to existing policies and is the main reference policy on matters concerning reproductive Health in the country. While the reproductive health policy speaks more on post-abortion care and minimizing preventable causes of abortion the National Guidelines on Management of Sexual Violence in Kenya provides that as a survivor of sexual violence, one has the right to access termination of pregnancy and post-abortion care in the event of pregnancy from rape.

Other policies that supplement these main policies in Kenya include The Adolescent Reproductive Health and Development Policy Plan Of Action (2005–2015), Integrating the Management of STIs/RTIs into Reproductive Health Services, Pocket Handbook For Health Providers, Adolescent Reproductive Health Development Policy, Community Health Volunteers (CHVS) Family Planning Facilitators Guide, The National Curriculum on Sexuality and Sexual Health Training for Health Service Providers, National Family Planning Guidelines for Service Providers, National Family Planning Guidelines for Service Providers, Reproductive Health Communication Strategy Implementation Guide for Family Planning, Adolescent and Youth Sexuality and Reproductive Health Rights, and Maternal, Neonatal, and Child Health, National Guidelines for Reproductive Tract Infection Services and National Reproductive Health Research Guidelines.

4. Progression of SRHR Case Law in Kenya

In the case of Millicent Awuor Omuya and another V The Attorney General and others -Petition No. 562 of 2012, the court criticized Kenya’s detention of indigent patients for inability to pay hospital charges at Pumwani Maternity Hospital which is one of the largest referral hospitals in East Africa. The petitioners were treated with cruelty, and inadequate food, and detained for lengthy periods for failure to pay their medical bills in the maternity hospital. The court found that healthcare institutions must respect patients’ dignity, provide quality care, and ensure the right to health as it is essential for human rights. The court ordered the respondents to develop guidelines and implement administrative, legislative, and policy measures to eradicate patient detention.

From that time, there has been a progression in cases in Kenya challenging policies and laws that are discriminatory and limit access to reproductive health such as the case of FIDA and others v. The Attorney General -Petition 266 of 2015 which sought clarity on the situations under which, from the exceptions to the general rule, abortion is permissible in the country; what health means under the constitution of Kenya; and whether the exception includes victims of sexual violence. In that case, the court was of the opinion that women and girls in Kenya who find themselves pregnant as a result of sexual violence have a right, under Kenyan law, to have an abortion performed by a trained health professional if that health professional forms the opinion that the life or health of the mother is in danger.

With regards to the PAK & another v Attorney General & 3 others – Constitutional Petition E009 of 2020 [2022] KEHC 262 (KLR), the court addressed several issues including whether the lack of access to safe abortion services was a violation of the right to privacy, the right to life, the right to the highest attainable standard of physical and mental health and freedom from torture, inhuman and degrading treatment and punishment. The court held that the right to abortion was a fundamental right but it could not be said to be absolute in light of Article 26(4) of the constitution and a declaration was made, founded on the right to life, for Parliament to enact an abortion law and public policy framework in terms of Article 26(4) of the constitution to provide for the exceptions as stipulated in the Supreme Law.

Another important case with regards to informed consent when accessing reproductive healthcare services was the case of L A W & 2 others v Marura Maternity & Nursing Home & 3 others; International Community of Women Living with HIV (ICW) (Interested Party); Secretariat of the Joint United Nations Programme on HIV/AIDS & 2 others (Amicus Curiae) – Constitutional Petition 606 of 2014 [2022] KEHC 17132 (KLR) where the court reaffirmed the reproductive rights of people living with HIV and that medical institutions must obtain informed consent from patients for purposes of undertaking any medical operations except in cases of emergency.