Court of Appeal declares abortion is not a fundamental right

The Court of Appeal has ruled that abortion is not a fundamental right under Kenya’s Constitution, emphasizing that it is only permissible under strictly limited circumstances provided by law.

In its judgment on Friday, the appellate court noted that Article 26(1) and (2) of the Constitution protects the right to life from conception, meaning that procuring an abortion ordinarily amounts to depriving an unborn child of that constitutional protection.

However, the judges clarified that Article 26(3) and (4) creates narrow exceptions where abortion may be lawfully carried out.

These include situations where, in the opinion of a trained health professional, there is need for emergency treatment, where the life or health of the mother is in danger, or where another written law expressly permits it.

The court observed that this constitutional framework explains the existence of punitive provisions under Sections 158, 159, and 160 of the Penal Code, which criminalize unlawful abortion practices.

“Abortion is not a fundamental right guaranteed under the Constitution. On the contrary, the Constitution expressly prohibits it but provides exceptions in limited circumstances,” the judges held.