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The complicated legalities of safe abortion in Kenya

The Kenyan High Court has ruled that rape survivors have the right to an abortion and ordered authorities to pay almost US$30 000 in damages to the mother of a teenage victim who died after a botched abortion. This was as a result of a directive by the Ministry of Health to withdraw national standard guidelines for the procedure.

Abortion is illegal in Kenya – unless a woman’s life or health is in danger and emergency treatment is required. The government had been clamping down on health facilities such as Marie Stopes International, which offers safe reproductive health services, before it was agreed that the ban endangered the lives of thousands of women.

According to a Kenyan government health survey conducted in 2014, 18% of women aged between 15 and 19 were mothers or pregnant with their first child.

This latest ruling by the Kenyan High Court to allow abortion in rape cases was initiated by a petition filed in 2015. A 15-year-old girl known only by her initials JMM, to protect her identity, became pregnant after she was raped in 2014. Due to injuries from a backstreet abortion that later led to her death, her mother, along with the Federation of Women Lawyers, filed the petition, claiming that authorities failed to provide the girl with proper post-abortion care, and called on the government to implement measures for access to safe abortions.

This week, High Court judges Aggrey Muchelule, John Mativo, George Odunga, Lydia Achode and Mumbi Ngugi ruled that rape survivors now have the right to an abortion and awarded JMM’s mother damages of 3 million Kenyan shillings.

“If in the opinion of a trained medical professional pregnancy resulting from rape or defilement poses a danger to the life or health of the mother – that is, her physical, mental and social well-being– it may be terminated under … sections of the constitution,” said Justice Muchelule.

JMM’s mother said in a statement that she hoped thousands of lives would be saved through the implementation of the order. “I know this is what my daughter, JMM, would have wanted to see – that justice is served, and that Kenyan women and girls in need of emergency health services, including abortion, regardless of their socio-economic status, are able to access safe and legal abortion services.”

Read: Kenya bans Marie Stopes from offering safe reproductive health services

Withdrawal of guidelines

The standard guidelines for reducing mortality and morbidity from unsafe abortions were developed in 2012 to reduce maternal mortality in the country. They addressed issues that would help prevent abortion in the first place, methods of procuring safe abortions and post-abortion care. However, the Kenyan Ministry of Health withdrew the contentious guidelines and health workers were directed to stop attending training on safe abortion.

According to Reuters, campaigners say that Kenyan authorities, influenced by powerful Christian groups, have in recent years made it harder for women to access safe abortions by withdrawing guidelines on conducting abortions and banning health workers from training.

In their ruling the High Court said the Ministry of Health’s actions had violated the constitution, which guarantees the right to health, life and dignity of women, ordering authorities to reinstate the guidelines and provide health professionals with training.

“JMM’s case is a window into the plight of many other women and girls who have no place to turn and no access to information or reproductive health services,” said Evelyne Opondo, the senior regional director for Africa at the Centre for Reproductive Rights.

The ruling means that despite abortion remaining illegal as a whole, health providers can now not only attend training but can also offer abortion and post-abortion care services without the fear of being prosecuted – in specific cases.

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