On April 24, Kenya’s Court of Appeal overturned a 2022 high court ruling declaring that access to abortion is a “constitutional right” and that the arrest and prosecution of abortionists and women procuring abortions is unconstitutional.
Kenya’s Constitution explicitly protects unborn children as persons, stating in Section 26:
(1) Every person has the right to life.
(2) The life of a person begins at conception.
(3) A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.
(4) Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.
In 2019, however, a teenager sought medical care at a hospital after “severe complications from an abortion, including pain and bleeding,” receiving post-abortion treatment from the attending doctor, according to Africanews. Charges were brought against her and the doctor, and the judge not only acquitted them of these charges but decided to go much further and declare abortion a “constitutional right.”
The decision to declare that abortion is a “constitutional right” was successfully appealed by the Kenya Christian Professionals’ Forum, the attorney general of Kenya, and others.
“The court of appeal on Friday reiterated that abortion denies a child the right to life as guaranteed in the constitution and is prohibited except in circumstances such as when the life of the mother is at risk,” the Associated Press reported. Abortion, the destruction of an innocent child, is never actually medically necessary or justifiable.
The ruling stated that: “In effect, abortion is not a fundamental right guaranteed under the Constitution. On the contrary, the constitution expressly prohibits it but provides exceptions in limited circumstances where it may be permissible.”
In the decision, the three-judge Court of Appeal also emphasized that the constitution protects the right to life from conception and that abortion violates this right, while also affirming Penal Code provisions against abortion.
Charles Kanjama of the Kenya Christian Professionals’ Forum stated that the ruling “restored constitutional balance which had been distorted by the high court ruling” and noted that “if someone is accused of an offense under Sections 158, 159, or 160 of the penal code, as happened in this case, they have to provide evidence to show that they were not engaged in the crime of abortion on demand.”
“Kenya’s Court of Appeal rules that abortion violates the child’s right to life and overturns the decision of a rogue judge who had tried to legalise abortion!” Dr. Calum Miller, a pro-life ethicist and doctor, wrote on X. “This is a HUGE win in one of Africa’s biggest legal cases ever.”
“In 2022, following efforts by abortion orgs, a court ruling recognized abortion as a constitutional right in Kenya,” Nigerian human rights activist Obianuju Ekeocha concurred. “But now the Kenyan Court of Appeal has overturned that ruling stating that abortion is NOT a constitutional right. Deo gratias!”
