Hundreds of youth activists and reproductive health advocates staged demonstrations in Nairobi on Thursday following a controversial ruling by the Court of Appeal of Kenya in an abortion-related case.
The protesters marched from the Central Business District to Afya House, carrying placards and demanding protection of reproductive healthcare rights for women and girls.
Demonstrators argued that the ruling could discourage patients from seeking emergency medical treatment out of fear of arrest or prosecution.
The protests were triggered by a Court of Appeal decision overturning a 2022 High Court judgment that had halted criminal proceedings against a teenage girl identified in court records as PAK and a clinical officer in Kilifi.
The appellate court reinstated the criminal case and directed that it proceed to a full trial.
The matter, which dates back to 2020, involves charges under Sections 158, 159 and 160 of the Penal Code concerning alleged procurement of abortion and supplying drugs intended to procure miscarriage.
According to court records, the girl was 16 years old when she allegedly became pregnant following defilement and later lost the pregnancy. Activists say she sought emergency medical care after developing complications before being arrested alongside the clinical officer who treated her.
Speaking during the protests, Martin Onyango, Associate Director for Africa Legal Strategies at the Center for Reproductive Rights, criticised the prosecution.
“PAK was a schoolgirl from a very poor background in Kilifi. She became pregnant and, unfortunately, lost the pregnancy. Instead of receiving care and protection, she was criminalised,” Onyango said.
According to Onyango, the teenager was allegedly removed from her hospital bed before recording a statement with investigators.
The case initially proceeded before a magistrate’s court in Kilifi, where the accused persons sought to terminate the proceedings, arguing the teenager had already lost the pregnancy before arriving at hospital and required lawful emergency post-abortion care.
The magistrate’s court declined to stop the trial, prompting the accused to file a constitutional petition before the High Court in Malindi.
In its 2022 ruling, the High Court partly agreed with the petitioners and found that aspects of the arrest and prosecution violated constitutional rights relating to dignity, privacy, health and protection from cruel or degrading treatment.
The court also held that abortion is permitted under limited circumstances outlined in Article 26(4) of the Constitution, particularly where emergency treatment is necessary or where the life or health of the mother is at risk.
However, anti-abortion groups together with the Attorney General challenged the ruling at the Court of Appeal.
In overturning the decision, the appellate judges ruled that the trial court remained the appropriate forum to test the evidence.
“The criminal proceedings provide the requisite judicial platform on which the veracity of the charges stands to be tested,” the Court of Appeal stated.
The judges further ruled that abortion is not an absolute constitutional right and that courts should avoid interfering prematurely with ongoing criminal proceedings unless there is clear evidence of abuse of power.
The ruling has sparked concern among reproductive health advocates, who fear it may affect access to emergency healthcare and create fear among healthcare workers handling reproductive health cases.
