COUNTRY PROFILE 

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Last updated: 28/04/2017

Abortion status: Criminalised, permitted in certain circumstances by the 2010 Constitution which states “Abortion is not permitted unless, 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.” [1]

Annual number of abortions: ±465,000 (2012) [2]

Maternal Mortality Rate (average between 2007-2014): 362/10,000 [3]

Annual number of deaths from abortion: 266 deaths per 100,000 unsafe procedures [4]

Annual number of women receiving care due to complications of unsafe abortion: 120,000 (2012) [5]

KNOWN CASES (We encourage people to get in touch if they know of more cases.)

Name Dr John Nyamu
Date of Arrest 2004 along with two others.
Case Summary Case no. 81 2004. Dr. Nyamu’s clinic was raided and the remains of 15 stillborn babies initially described as aborted fetuses were "found" along a major road. The babies had been planted were. With them was paperwork that had been stolen from the clinic.
Charge Dr. Nyamu and two of his staff were charged with two counts of murder rather than any abortion-specific offences and they spent a year in remand awaiting trial.[6]
Sentence None. Case ruled improper and charges dropped
Current Status Dr Nyamu since sued the government for malicious prosecution and subsequent confinement for one year in remand prison. He was given a hearing date for this case in August 2015 however the case was not heard. Since then Dr Nyamu has been provided with a "mention date" of 25 May 2017 for the purpose of the court setting another hearing date which he thinks might be in September 2017.[7]
Name Jackson Namunya Tali [8][9]
Date of Arrest 07/2009
Case Summary Case no. 75 2009. Jackson Namunya Tali is a nurse who operated a medical clinic. In 2009 he received a client who thereafter passed away.Tali holds that the deceased came to his clinic “while bleeding in pregnancy” and sought medical help following a botched abortion elsewhere.
Charge Charged with murder with malice aforethought contrary to Section 203 and 204 of the Penal Code of Kenya
Sentence Sentenced to death.
Current Status Jackson Tali is still waiting for the appeal of his sentence to be heard. At the beginning of 2017 he was promised a date on priority.
Name Unknown[10]
Date of Arrest 2011
Case Summary A 40-year-old woman was held in Murang’a police station for allegedly having had an abortion. She was said to have terminated the pregnancy by swallowing some chemicals. She was locked in a cell in the police station and died there after developing complications.
Name DK & another[11]
Date of Arrest 2013
Case Summary Case no. 4469 of 2013. According to witness statements the police organised someone (who was not pregnant) to pose as a client wanting to procure an abortion. Whilst the check-up was taking place the police stormed into the clinic and arrested the accused persons.
Charge Charged in 2013 with attempting to procure an abortion contrary to Section 158 of the Penal Code
Current Status Case dismissed for want of prosecution under provisions of Section 202 of the Criminal Procedure Code. Legal Support Network (LSN) lawyers had attended court in May 2016 and objected to the laxity of the Prosecution who had neither the police file nor the witness.
Name JN[12]
Date of Arrest 08/12/2013
Case Summary Case no. 546 of 2013. JN is a doctor whose clinic was stormed by police on 8 December 2013 claiming that an illegal abortion was taking place. JN was treating a pregnant patient at the time however did not administer any abortion drugs or otherwise attempt to provide an abortion. The patient her mother and JN were arrested. The patient was discharged the following day (and thereafter procured an abortion on 12 December).
Charge Charged in Kilifi Magistrates Criminal Court on 11 December 2013 with “intent to procure an unlawful miscarriage through the use of Misoprostol contrary to Section 158 of the Penal Code.”
Current Status JN is being represented by a Legal Support Network (LSN) lawyer housed at KELIN and has attended hearings throughout 2016. JN’s case is still in court and is pending finalisation. JN’s case was scheduled to continue being heard in court on 6 February 2017 but was postponed until 28 February due to the lack of a witness in the case. On 28 February the case did not proceed yet again. The prosecution was given the last adjournment by court as they did not have their witnesses.
Name Edna Achilla[13]
Date of Arrest 2013
Case Summary Case no. 3651 of 2013. 21-year-old Edna Achilla (reported in the media as 17-years-old) was arrested by the police for attempting to have an abortion. Edna was frog marched to the nearby Chief camp with a crown that assaulted her and called her names. She was made to carry a basin full of blood with the fetus.
Charge Charged at Makadara law courts under the penal code for an attempt to have an abortion.
Current Status The court set her bail at Kshs 20000 (~$193) which was raised by FIDA Kenya. She was then released but bound to attend court. Edna’s case has since stalled since the main prosecution witness and the person accused of providing an abortion both passed away. She was discharged based on the lack of evidence resulting from these deaths.
Name EM[14]
Date of Arrest 01/12/2015
Case Summary Case no. 2020 of 2015. During the examination of a patient (who was in collaboration with the police) police stormed the clinic arrested EM and confiscated her licences and MVA kits.
Charge Charged with the offence of attempting to procure abortion contrary to Section 158 of the Penal Code.
Current Status Released on bail of Kshs 50000 case due to be heard in November 2016. EM is being represented by a Legal Support Network (LSN) lawyer housed at KELIN. The case did not proceed on various dates throughout 2016 as the Complainant was unable to attend court. The case was finally dismissed by the court under section 87A of the Criminal Procedure Code. EM has now applied for reimbursement of her bond of Kshs 50000 and all the professional equipment that was taken from her clinic during the raid

 

COUNTRY SUMMARY

Under the 2010 Constitution of Kenya, abortion is permitted in certain circumstances. Article 26(4) states: “Abortion is not permitted unless, 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.”[15]

Under the Kenyan Penal Code, abortion is criminalised under articles 158-60 These laws make it a fourteen-year prison offence for performing an abortion, a seven-year prison offence for having an abortion, and a three-year prison offence for assisting with an abortion.[16] Section 158 states: “Any person who, with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for fourteen years.” 

Despite the partial legality of abortion in Kenya, a combination of a lack of legal transparency and lack of implementation of the law has meant that there is confusion among both healthcare providers and people seeking abortions as to what is legal. Furthermore in 2013 Kenya suspended its “Standards and Guidelines on Reducing Maternal Mortality and Morbidity from Unsafe Abortion”. This was the only existing document for health professionals addressing the conditions needed in order to procure a safe abortion.

Thank you to all groups and individuals in Kenya who helped with the research and writing of this webpage and the below report.

Read our full length report on the law, trials and imprisonment for abortion in Kenya:

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REFERENCES

[1] National Council for Law Reporting with the Authority of the Attorney General. The Constitution of Kenya, Laws of Kenya, Article 26(4). 2010. p.23. http://www.icla.up.ac.za/images/constitutions/kenya_constitution.pdf.

[2] Mohamed SF, Izugbara C, Moore AM, et al. The estimated incidence of induced abortion in Kenya: a cross-sectional study. BMC Pregnancy & Childbirth 2015;15(185). DOI: 10.1186/s12884-015-0621-1.

[3] Kenya National Bureau of Statistics, 2014, “Kenya Demographic and Health Survey 2014”. Available online at: https://dhsprogram.com/pubs/pdf/FR308/FR308.pdf, p. 327

[4] For a summary of the findings, see Women’s Lives Matter: Key Findings of a National Study: Incidence and Complications of Unsafe Abortion in Kenya. African Population and Health Research Center, Ministry of Health, Kenya, Ipas, and Guttmacher Institute; 2013. https://www.guttmacher.org/sites/default/files/pdfs/pubs/FB-abortion-in-Kenya-2013.pdf.

[5] ibid

[6] Bassett L, Naughton J. Africa: Instruments of Oppression. Washington, DC: Pulitzer Center on Crisis Reporting; 3 December 2015. http://pulitzercenter.org/reporting/africa-instruments-oppression.

[7] Personal communication with Dr. Nyamu, 17 March 2017.

[8] http://kenyalaw.org/caselaw/cases/view/101799/

[9] http://www.law.utoronto.ca/utfl_file/count/documents/reprohealth/lg-05-tali-abortion-kenya.pdf

[10] Realising Sexual and Reproductive Health Rights in Kenya: A myth or reality? Nairobi: Kenya National Commission on Human Rights; 2012. http://www.knchr.org/Portals/0/Reports/Reproductive_health_report.pdf.

[11] This information was provided to me by KELIN in Kenya. This case is being handled by the Legal Support Network a structure of pro-bono lawyers that are housed at KELIN with funding from Reproductive Health and Rights Alliance.

[12] ibid

[13] Mudiwa L. Slum girls of Kenya take a stand. Irish Medical Times, 10 January 2014.  http://www.imt.ie/features-opinion/slum-girls-of-kenya-take-a-stand-10-01-2014/ and Personal communication with KELIN, 22 March 2017 and with FIDA Kenya, 10 April 2017

[14] This information was provided to me by KELIN in Kenya. This case is being handled by the Legal Support Network a structure of pro-bono lawyers that are housed at KELIN with funding from Reproductive Health and Rights Alliance.

[15] National Council for Law Reporting with the Authority of the Attourney General, 2010, The Constitution of Kenya, Laws of Kenya, Article 26 (1-4).

[16] Kenya Law. Kenyan Penal Code, Articles 158-60. 2012 (revised edition). http://www.kenyalaw.org/lex//actview.xql?actid=CAP.%2063.