The Court of Appeal of Kenya has ruled that abortion is not a fundamental right under the Constitution, stating that it is only allowed under strictly limited circumstances defined by law.
In its judgment delivered on Friday, the appellate court emphasized that Article 26(1) and (2) of the Constitution protects the right to life from conception. The judges noted that, in general, procuring an abortion amounts to depriving an unborn child of this constitutional protection.
Limited Exceptions Under the Law
However, the court clarified that Article 26(3) and (4) provides specific exceptions where abortion may be legally permitted.
These include:
- When, in the opinion of a trained health professional, emergency treatment is required
- When the life or health of the mother is in danger
- When another written law expressly allows it
The judges underscored that these exceptions are narrow and must be interpreted within the framework of the Constitution.
Penal Code Provisions Upheld
The court further observed that this constitutional position aligns with existing provisions in the Penal Code of Kenya, particularly Sections 158, 159, and 160, which criminalize unlawful abortion practices.
“Abortion is not a fundamental right guaranteed under the Constitution. On the contrary, the Constitution expressly prohibits it but provides exceptions in limited circumstances,” the judges ruled.
Legal and Social Implications
The ruling is expected to have significant implications on ongoing debates around reproductive rights in Kenya, reinforcing the legal framework that restricts abortion while allowing limited medical exceptions.
Legal experts say the decision clarifies the interpretation of Article 26 and may influence future court cases, healthcare policies, and public discourse on reproductive health rights in the country.
