The High Court sitting in Malindi is expected to issue a landmark judgment on Friday, March 25, on whether to allow abortion victims to receive post-abortion emergency care.
The judgment will be made by judge Reuben Nyakundi in a case where a 16-year-old minor and a clinical officer who provided post-abortion care to her are facing charges.
Justice Nyakundi, on Wednesday, March 23, temporarily halted criminal proceedings of the case and ordered for the two files to be placed before his Malindi High Court pending the hearing and determination of a constitutional review petition.
This is after Center Reproductive Health Network Kenya, listed as the petitioner, the minor and the clinical officer moved to the court to challenge the government's failure to interpret and apply the impugned sections of the penal code with the alterations, adaptations, qualifications, and exceptions necessary to align them with the constitution.
“The case confronts the government's inconsistent and noncommittal approach in updating statutes affecting women's reproductive healthcare. It concerns the arrest and prosecution of Salim Mohammed (a clinical officer and (a minor living in Kilifi County) for providing and receiving post-abortion care, that is recognized as a right under the Kenya constitution,” the petitioners' lawyer Martin Onyango said.
Attorney General, the Director of Public Prosecutions, the Inspector General of Police, and the Senior Principal Magistrate - Kilifi have been listed as the respondents in the matter
The petitioners have argued that the respondents, through their actions or omissions, caused the arrest and prosecution of Mohammed and the minor for providing and receiving post-abortion emergency care that is recognized as a right under the constitution.
“Since 1963, Kenyan women and girls of reproductive age have faced pervasive discrimination while seeking essential reproductive healthcare services. The discrimination has been in the form of wrongful arrests and prosecution for seeking health care, stigmatization, and a lack of health care providers willing to offer safe abortion care within the law and post-abortion care even in emergency situations. The enactment of a new constitution in 2010 marked a promising turning point”, Onyango said.
He told the court that the constitution recognized healthcare as a right and protected access to reproductive healthcare services, including abortion, from restrictions not backed by any law or policy consideration.
He further added that the constitution also guarantees access to emergency medical treatment. Additionally, it permits abortion when, in the opinion of a trained health professional, there is need for emergency treatment or the life or health of the pregnant woman is in danger, or when allowed by any other written law.
The Director of Public Prosecutions Noordin Haji had ordered the minor to be charged with the offence of procuring an abortion contrary to section 159 of the penal code.
The charges stated that PAK, intending to end her pregnancy, took drugs that led to her miscarriage. On the same date, Mohammed the clinical officer was charged with an attempt to provide abortion contrary to section 158 of the penal code.
He was further slapped with a second count of supplying drugs to procure abortion contrary to section 160 of the penal code.
Onyango however terms the act as a total disregard of the constitution, statutes, and unequivocal judicial decisions on the law of abortion in Kenya and the clear understanding that post-abortion care is emergency care protected under the Kenyan constitution.