Two Years On From A “Landmark” Abortion Decision in Kenya

Two years ago, the Kenyan High Court in Malindi decided PAK and Salim Mohammed v. Attorney General et al., affirming that the constitutional right to abortion is “fundamental.”

Approximately 2,600 people lose their lives to unsafe abortion in Kenya each year, with an additional 21,000 people requiring hospitalization. While the Kenyan Constitution, adopted in 2010, allows for abortion when the pregnant person’s life or health is at risk under Article 26(4), the Kenyan Penal Code still criminalizes it—a legal grey area creating “ambiguity, confusion, and stigma.

This article will describe the PAK decision and analyze it in line with trends in transnational abortion law.

PAK and Salim Mohammed v. Attorney General et al.

This case began in Magistrate Court, before being heard in the High Court (the lowest level of superior courts in the Kenyan judiciary). A 17-year-old student, PAK went to a clinic in September 2019 after experiencing complications in her pregnancy, including severe pain and bleeding. There, she received care from Salim Mohammed, a registered Clinical Officer. Mohammed found that PAK had experienced a spontaneous abortion and performed an emergency manual vacuum evacuation. Two days later, while PAK was recuperating, police officers stormed the clinic, confiscated her medical records, and arrested both PAK and Mohammed. PAK was “made to sign a written statement” by the police officer and forced to undergo a medical examination at the county hospital. Further, her Children’s Officer applied to send her to a children’s home.

PAK was charged with procuring abortion contrary to section 159 of the Penal Code, while Mohammed was charged with procuring abortion contrary to section 158 of the Penal Code and supplying drugs to procure abortion contrary to section 160 of the Penal Code.

The Court divided PAK and Mohammed’s claims into five issues for determination. It started by locating a “lacuna” in Kenya’s statutory scheme, preventing the operationalization of Article 26(4). It discussed impairments of the constitutional rights to life, health, privacy, dignity, security, conscience, and freedom of choice, citing international, foreign, regional, and domestic law.

While acknowledging that life begins at conception under the text of Article 26(1), the Court determined that “restrictive abortion laws, coupled with lack of effective laws giving effect to Article 26(4) of the Constitution, expose[] women and girls to mental and physical health risks that are often associated with unsafe abortion and stigmatizes women and girls who seek abortion thereby violating their right to life and the right to highest attainable standards of health.” Thus, the Court instructed Parliament to enact legislation to actualize Article 26(4).

Next, the Court found that even though the Penal Code did not provide for the Article 26(4) exceptions, it “ought to be read in consonance” with the Constitution.

Third, the Court determined that the Magistrate Court proceedings against PAK and Mohammed should be quashed, holding that there was “no prima facie evidence that the abortion was conducted outside the threshold of Article 26(4).”

Fourth, the Court found gross violations of PAK and Mohammed’s constitutional rights, including a lack of reproductive healthcare (Article 43(1)), degrading and inhuman treatment (Article 25), lack of respect for dignity (Article 28), and lack of a fair hearing (Article 50).

Lastly, the Court considered PAK and Mohammed’s request for orders of mandamus, but declined to issue them. These writs would have compelled the Attorney General, the Inspector General of Police, and the Director of Public Prosecutions to act within 90 days. The Court also denied PAK and Mohammed’s requests for injunctive and monetary relief.


An Example of the Procedural Turn?

PAK is considered a landmark abortion decision in Kenya, following a series of strategic litigation (including FIDA-Kenya and others v. Attorney General and others). When I read PAK, I was struck by its remedy, made up largely of demands that the government take steps to operationalize Article 26(4).

The Court called on the government to “fast track” legislation and held that a new act was “imperative,” hoping to “send[] a signal” to the legislature with its opinion. The Court also directed the legislature to “further draft” a law implementing Article 26(4). It similarly decried the lack of “legislative scheme,” “legislative/policy framework,” and “statutory and administrative framework,” highlighting the “lacuna” in the current statutory scheme.

These references reminded me of a phenomenon in comparative constitutional law scholarship on abortion, termed the “procedural turn” by Joanna Erdman. Erdman describes the procedural turn as a “favoring of procedural over substantive human rights limitations on the criminalization of abortion.”

Erdman highlights the procedural turn in decisions from the European Court of Human Rights. In Tysiac v. Poland, a woman denied an abortion based on risks to her health was entitled to “procedure [to guarantee] at least a possibility to be heard in person and to have her views considered.” Similarly in A, B, and C v. Ireland, plaintiffs A and B were not entitled to abortions for health or well-being reasons in Ireland, but plaintiff C (undergoing cancer treatment that made pregnancy a risk to her life) was entitled to “effective and accessible procedures to establish” her right to abortion on the basis of the risk to her life.

In both of these cases, the European Court of Human Rights avoided ruling on the substantive merits of Poland or Ireland’s restrictive abortion laws. Instead, under the procedural turn, the Court can only insist that “once the state recognizes a substantive right, it is obligated to ensure its effective protection.” Tysiac and A, B, and C were criticized by scholars on both sides of the abortion debate, for going too far and not far enough on abortion rights. Erdman suggests that while these rulings can be problematic in legitimizing restrictive abortion laws, they can also dismantle them in the long-term by forcing a government to try (and fail) to “make work” unworkable laws.

While PAK is currently under appeal, it is an important win in activists’ toolbox, with the potential to actualize existing abortion rights and create grounds for further decriminalization.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.