Kenya's High Court Reinstates Abortion Guidelines in Landmark Ruling

A landmark ruling by Kenya’s High Court on 12th June 2019 has clarified the legal position on abortion in the country. The case, brought by the Federation of Women Lawyers (Fida-Kenya) and three others against the Attorney General, centred on the withdrawal of the 2012 Standards and Guidelines and National Training Curriculum for reducing unsafe abortions. The court found that this withdrawal violated constitutional rights and ordered compensation for a victim of the policy change.

The petitioners argued that removing the 2012 guidelines blocked access to legal abortion services, particularly for survivors of rape or defilement. They claimed this denial caused severe harm to women and girls in need of urgent medical care. The respondents, however, defended the withdrawal, stating it aligned with ethical standards and existing laws.

The court ruled that the decision to withdraw the guidelines breached Articles 10 and 47 of the Constitution, as well as the Fair Administrative Action Act. It also declared the letters issued by the respondents unlawful and invalid from the outset. Under Article 26(4) of the Constitution, the judgment reaffirmed that abortion remains illegal in Kenya except when a trained medical professional determines that a woman’s life or health is at risk. In a significant move, the court awarded PKM Ksh. 3,000,000 in compensation. This sum addressed the physical, psychological, and emotional suffering endured by JMM, a victim of the policy’s consequences. The ruling also established that monetary compensation could serve as a remedy in public law cases where fundamental rights are violated.

The judgment reinforces the limited circumstances under which abortion is legally permissible in Kenya. It also sets a precedent for compensation in cases where constitutional rights are infringed by state actions. The decision now requires the respondents to comply with the court’s orders and pay the awarded damages.