Arresting and Prosecuting Women who Have Aborted is Unlawful~Court Says

In a landmark ruling delivered on Friday, the High Court of Malindi stated unequivocally that abortion care is a fundamental right guaranteed by Kenya’s Constitution and that arbitrary arrests and prosecutions of patients and healthcare providers for seeking or providing such services are unlawful.

PAK, a 16-year-old girl from Kilifi County, was the subject of the court case, which was filed in November 2020, after she had pregnancy complications and sought medical help at a nearby clinic, where she was treated by a trained clinical officer.

The clinical officer determined that she had lost a pregnancy after examining her and proceeded to give her the care she required.

While PAK was still receiving treatment at the clinic, police stormed the facility, confiscated her treatment records, and arrested her along with the clinical officer.

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The two were taken to Ganze Police Patrol Base, where PAK was denied further medical care for two days and was forced to sign a statement that contradicted her account of what had happened.

PAK was also forced to undergo a second medical examination at Kilifi County Hospital in order to obtain evidence to prove an alleged abortion offense.

The clinical officer was held for a week, while PAK was remanded in a juvenile detention center for more than a month as she attempted to secure cash bail for her release.

The court determined in its decision that PAK was recovering from a medical procedure and that police lacked the medical qualifications to determine whether she was fit to leave the clinic regardless of her admission status at the time.

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Furthermore, the court determined that PAK’s arrest was inhumane and degrading, and that as a minor, she should not have been interrogated without legal representation.

Evelyne Opondo, Senior Regional Director for Africa at Center for Reproductive Rights said, “Today’s victory is for all women, girls, and healthcare providers who have been treated as criminals for seeking and providing abortion care,”

“The court has vindicated our position by affirming that forcing a woman to carry an unwanted pregnancy to term or to seek out an unsafe abortion is a gross violation of her rights to privacy and bodily autonomy. Further, the continued restrictive abortion laws inhibit quality improvement possible to protect women with unintended pregnancies.”

The court’s decision was welcomed by Nelly Munyasia, Executive Director of Reproductive Health Network Kenya (RHNK), a network of reproductive health providers whose member was the second petitioner in this case.

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“Many qualified reproductive healthcare practitioners continue to be arrested, detained, and prosecuted for providing legal medical care.

“The court’s decision confirms that prosecution against health providers cannot hold where the prosecution has not established that; the health professional in question was unqualified to conduct the procedure; the life or health of the woman was not in danger or the woman was not in need of emergency treatment,” Ms. Munyasia said.

Martin Onyango, Head of Legal Strategies for Africa, and Prudence Mutiso, Legal Advisor for Africa, of the Center for Reproductive Rights, represented the petitioners.

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