A Kenyan appeals court has overturned a landmark 2022 High Court judgment that had affirmed abortion access as a constitutional right in certain circumstances, a decision rights advocates say could deepen fear, confusion and unsafe practices in a country already struggling with high levels of abortion-related complications. The ruling has drawn strong criticism from the Centre for Reproductive Rights, which said legal uncertainty continues to expose women and healthcare providers to police harassment, extortion and criminal prosecution.
At the centre of the case is a 16-year-old girl who was arrested in September 2019 in her hospital bed in Kilifi after seeking treatment for severe pain and bleeding following an abortion-related complication. Salim Mohammed, the clinician who treated her and later provided post-abortion care, was also arrested and charged. Mohammed was detained for a week, while the girl, unable to afford bail, spent more than a month in juvenile detention. Their lawyers argued that she had already lost the pregnancy before treatment was administered.
In March 2022, the High Court quashed the charges and held that access to abortion was protected under Kenya’s constitution, while also condemning practices such as forced medical examinations used in criminal investigations. But the Court of Appeal reversed that finding on Friday, ruling that abortion is not a fundamental constitutional right and is only permissible in limited circumstances, including where a trained health professional determines that the life or health of the mother is in danger. The judges said constitutional rights do not prevent the state from investigating and prosecuting alleged abortion offences.
The decision has renewed attention on Kenya’s overlapping legal framework. The 2010 constitution allows abortion under specific exceptions, but colonial-era penal code provisions still criminalise the procedure more broadly, a contradiction that campaigners say has fostered fear and abuse. The Centre for Reproductive Rights described the appellate ruling as “deeply disappointing” and said it would challenge it at the Supreme Court.
The wider public health implications are significant. A recent study by the African Population and Health Research Center, Kenya’s Ministry of Health and the Guttmacher Institute estimated that Kenya recorded about 792,694 induced abortions in 2023, while more than 300,000 women received post-abortion care in health facilities, largely because of complications from unsafe procedures.
