Kenya’s Supreme Court Eviscerates Protections for the Unborn

By | June 21, 2019

NEW YORK, June 21 (C-Fam)  Kenya’s Supreme Court opened the door to a liberal abortion regime in a ruling last week citing the non-binding opinions of UN agencies and UN committees. Abortion groups are celebrating the move.

“This is a landmark ruling and victory for Kenyan women and girls,” said Evelyne Opondo, Senior Regional Director for Africa for the Center for Reproductive Rights in a press release. The Center for Reproductive Rights brought the litigation to the Kenyan Supreme Court.

“With the implementation of this court order, health providers will be able to offer abortion and post-abortion care services without the fear of being prosecuted,” she added.

Kenya’s laws are highly protective of children in the womb. The Kenyan Constitution protects children from the moment of conception and explicitly recognizes the right to life of the unborn. The only exception in which abortion is allowed is in cases where “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.”

Last week’s ruling from Kenya’s Supreme Court ordered the government to compensate the family of a girl who died last year from illnesses she developed after a protracted period of hospitalizations following complications from an illegal abortion she underwent five years ago. The girl was 14 when she was raped and was procured an illegal abortion.

The Court also declared unconstitutional a memorandum of the Kenyan government. The memo sought to prevent abuses of Kenya’s abortion laws by warning abortion providers and revoked previous policies that were being used by abortion groups to train Kenyan doctors to skirt Kenyan laws. The Court ruled that the memo had resulted in curtailing the abortion rights of Kenyan women and adolescent girls.

The court did not challenge Kenya’s abortion laws directly. Rather, in a sweeping decision it expands the circumstances when abortion must be available by re-interpreting the Kenyan Constitution in light of the non-binding opinions of UN experts and UN agencies, stating also that Kenyas’ Constitution is a “living instrument.”

Most notably, the Court interpreted the meaning of “health” in Kenya’s Constitution in light of the World Health Organization’s definition of health as “a state of complete physical, mental and social well-being, and is not only the absence of disease or infirmity.”

The court surmised that the Kenyan Constitution allows abortion in cases where the woman is subject psychological distress, as in cases of rape, and not just in cases when her physical health is threatened. This is a known tactic of the abortion industry to make abortion available on demand.

It remains to be seen if there will be political repercussions against the court for this ruling. The press in Kenya has so far focused on the Supreme Court upholding the country’s abortion laws, without being able to describe the eviscerating effect of the ruling on the implementation of those laws.

Kenya’s population is overwhelmingly pro-life, with over 82% of the population stating that abortion is immoral, according to Pew polls. Accordingly, Kenyan legislators have never legislated to make abortion legal on a broader set of circumstances than those foreseen in the Constitution.

This is in spite of the fact that the Constitution of Kenya includes the catchall phrase that abortion may be “permitted by any other written law” in the Kenyan Constitution, added under the influence of the Obama administration in 2010.