Abortion in Kenya is prohibited, with the exception of certain circumstances, including danger to the life and health of the expectant mother and cases of rape. Unsafe abortions pose a significant risk, leading to deaths and health complications among women in Kenya.
According to Voice of America’s report on abortion statistics in Kenya (2019), a debate has ignited regarding the issue of unsafe abortions in the country, shedding light on the magnitude of the problem.
Legislative policy and legal status The Constitution: Abortion in Kenya is regulated by Article 26(IV) of the Constitution of Kenya, which states that: “Abortion is not permitted unless, in the opinion of a trained health professional, there is a need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.”
The 2010 Kenyan constitutional referendum, which introduced Article 26, expanded access to abortion by allowing it for maternal health reasons. Prior to the 2010 referendum, abortion was widely criminalized, especially for abortion providers. In a notable court case in Kenya in 2004, three healthcare workers were charged with murder after performing an abortion in the Republic v. Nyamu and Others case. While Article 26 has broadened access, the lack of specificity in the language of the 2010 clause has resulted in ongoing debates about abortion in Kenya. Many healthcare providers are hesitant to offer abortions due to the uncertainty surrounding legal protection under the Constitution, even when providing safe abortion options.
Prior to the redraft of the 2010 constitution, many Kenyan anti-abortion advocates and religious leaders, with the support of U.S. pro-life organizations, opposed the 2010 version of the Constitution of Kenya due to the inclusion of the article concerning abortion. The National Council of Churches of Kenya, fearing that it would lead to the legalization of abortion, opposed the amendment. Anti-abortion proponents proposed seven amendments to Article 26 of the new draft constitution. However, due to the persistent efforts of the Kenyan Federation of Women Lawyers (FIDA) and other women’s choice organizations, these amendments were never implemented.
The Kenyan Penal Code: The 2012  revision of The Kenyan Penal Code Chapter 63 incorporates and prescribes punishments regarding abortion laws. Articles 158-160 directly address the act of aborting or miscarrying.
Article 158: Attempts to procure abortion: “Any person who, with the intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for fourteen years.”
Article 159: The same by a woman with child: “Any woman who, being with child, with intent to procure her own miscarriage, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a felony and is liable to imprisonment for seven years.”
Article 160: Supplying drugs or instruments to procure abortion: “Any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or is not with child, is guilty of a felony and is liable to imprisonment for three years.”
Additionally, Article 240 of Chapter 63 of the Kenyan Penal Code provides further clarification on the basis of surgical operations in relation to the mother’s health and unborn children.
Timeline: Abortion in Kenya
Kenya votes to adopt a new constitution to replace the 1963 Independence Constitution. The 2010 Constitution recognizes health as a fundamental right and includes explicit protections for reproductive health care, including abortion, post-abortion care, and emergency medical treatment.
In response to a request from the Center and the Federation of Women Lawyers-Kenya (FIDA Kenya), the Kenya National Commission on Human Rights launches a public inquiry into sexual and reproductive rights violations in the country. In May, the Commission publishes an in-depth report concluding that the Kenyan government failed to adequately respect, protect, and promote reproductive rights, and calling upon government and non-state actors to remedy this failure. Seeking to implement the new constitutional protections for abortion, Kenya’s Ministry of Medical Services publishes the “Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya” in September. The Standards and Guidelines provide health care professionals with guidance about when they are allowed to provide abortion services under the 2010 Constitution.
The Director of Medical Services arbitrarily withdraws the Standards and Guidelines without explanation or consultation with the stakeholders who participated in its development.
The Ministry of Health issues a memo that prohibits health care professionals from being trained on safe abortion services and medication abortion, threatening providers who do participate in training with dire legal and professional consequences. These actions stoke confusion among providers about the legality of abortion services in Kenya. Following the Ministry of Health’s memo, Jackson Tali—a licensed, registered nurse in Nairobi—is sentenced to death after a young woman experiencing pregnancy complications died in his care.
The Center files a petition against Kenya’s Attorney General, Director of Medical Services, and the Ministry of Health after the death of JMM, an adolescent girl who was unable to access safe abortion care when she was raped at the age of 14 and became pregnant. After receiving an abortion from an unqualified provider and being denied post-abortion care, JMM died from complications. The Center’s petition in this case, FIDA-Kenya and others v. Attorney General and others, challenges the lack of clarity on abortion laws in Kenya, urging the Kenyan government to restore safe abortion trainings and reinstate the 2012 Standards and Guidelines.
The United Nations Committee on the Rights of the Child releases recommendations calling for Kenya to “review its legislation with a view to ensure that girls have access to safe abortion and post-abortion care services and that their views are always heard and respected in abortion decisions.” The U.N. Special Rapporteur on Torture also releases a report highlighting one of the Center’s cases in Kenya, representing two women who were illegally detained and subjected to abuse for being unable to pay their hospital fees.
The Center files a lawsuit challenging the conviction of Jackson Tali. The Court of Appeal of Kenya acquits Tali later that year. Kenya adopts the Health Act, 2017, which broadens the definition of “health” under the Kenyan Constitution to include physical, mental and social well-being, not just the absence of disease.
The Center challenges the Kenya Medical Practitioners and Dentists Board’s decision to ban Marie Stopes, an international charity, from providing abortion and post-abortion care in Kenya. Following the Center’s petition to the High Court, the Kenyan government lifts the ban.
The High Court of Kenya issues a groundbreaking decision in the Center’s 2015 case, FIDA-Kenya and others v. Attorney General and others, challenging the government’s withdrawal of its Standards and Guidelines. The landmark ruling upholds the constitutional right to abortion and finds that the Kenyan government violated the rights of women and girls by arbitrarily withdrawing the Standards and Guidelines. This case is the first in Kenya to recognize abortion as a fundamental human right, and the first in Africa to address abortion as a constitutional right.
The Center and the RHNK file a lawsuit in the High Court of Kenya on behalf of a minor who was detained for receiving abortion care and a clinician who was detained for treating her. The case, PAK and Salim Mohammed v. Attorney General et al., challenges their detention and seeks to affirm Kenya’s obligation to ensure reproductive health care under its Constitution.
The High Court of Kenya issues a landmark decision in PAK and Salim Mohammed v. Attorney General et al. The ruling affirms that the Constitution of Kenya protects abortion as a fundamental right and establishes that arbitrary arrests and prosecution of patients and providers seeking or offering abortion care is illegal.