“This is a major victory for women, girls and caregivers,” rejoices the Nairobi daily Nation.
On Friday, March 25, the High Court in Malindi, Kenya, declared illegal the arrests and prosecutions related to clandestine abortions. Charged with ruling on the case of a 16-year-old girl accused of having an illegal abortion, Judge Reuben Nyakundi estimated that “the right to terminate a pregnancy is a fundamental right, and the decision whether or not to terminate a pregnancy is a woman’s fundamental individual freedom”.
“There is, from my point of view, a direct link between a woman’s right to termination of pregnancy and the right to respect for private life as enshrined in the Constitution: indeed the decision of abortion must fall primarily to the woman who, in the cases described in article 26 (4) of the Constitution, bears the main responsibility, whether she chooses to carry a pregnancy to term or to terminate it .”
According to the Constitution, abortion is illegal in Kenya unless“a trained health professional believes that there is an urgent need for treatment or that the life or health of the mother is in danger”.
Conversely, the High Court decision enshrines the right to abortion in the name of the fundamental right to privacy and asks Parliament to pass a new law in accordance with this principle. According to the Center for Reproductive Rights, an international reproductive rights organization, 2,600 women and young women die from complications related to clandestine abortions each year in Kenya.