Nairobi — Kenya’s Court of Appeal has overturned a landmark 2022 High Court decision that had recognised access to abortion as a constitutional right, in a ruling that has reignited debate over reproductive health laws in the country.
The appellate court ruled that abortion is not a fundamental right under the Constitution, setting aside the earlier judgment and reaffirming stricter legal limits on the procedure.
In its decision, the court emphasised that Kenya’s Constitution protects the right to life from conception and only permits abortion under narrowly defined circumstances—such as when the life or health of the mother is in danger, or in cases requiring emergency medical treatment.
Background to the case
The ruling stems from a 2019 case involving a teenage girl who sought treatment at a hospital after pregnancy complications. A doctor provided post-abortion care after determining that the pregnancy had already been lost. Both were later cleared by the High Court, which went further to affirm broader reproductive rights protections.
That 2022 High Court judgment had been widely viewed as a major step toward expanding access to safe abortion services and shielding patients and healthcare providers from prosecution.
Appeal court reverses course
However, the Court of Appeal found that the lower court had misinterpreted constitutional provisions, ruling instead that abortion remains largely prohibited and regulated under existing penal laws.
Judges noted that while limited exceptions exist, termination of pregnancy generally falls outside constitutional protection and must be assessed within the framework of criminal law.
Mixed reactions
The decision has drawn sharp reactions from different quarters. Human rights organisations, including the Center for Reproductive Rights, described the ruling as a setback and indicated plans to challenge it at the Supreme Court.
On the other hand, some religious and legal groups welcomed the judgment, saying it reinforces constitutional safeguards on the right to life.
Broader implications
The ruling is expected to have far-reaching consequences for access to reproductive healthcare in Kenya, where unsafe abortions remain a significant public health concern. Estimates indicate hundreds of thousands of induced abortions occur annually, often in unsafe conditions.
Legal analysts say the case is likely headed for the Supreme Court, setting the stage for a prolonged constitutional battle over reproductive rights in one of East Africa’s most closely watched legal systems.
