Mwikali & 3 others v Cabinet Secretary Ministry of Health & another; Kenya Obstetrical Gynaecology Society & 2 others (Interested Parties) [2025] KEHC 13908 (KLR)
Factual Background
On 5th July 2022, the Ministry of Health launched the National Reproductive Health Policy 2022-2032. Clause 3.4.1 paragraph 12 of the policy required termination of pregnancy to be performed in an environment meeting the minimum medical standards and guided by the opinion of a trained health professional with the proficiency to ensure that both the mother and the child get the highest attainable standard of healthcare.
The petitioners challenged this clause, arguing it was unconstitutional as it introduces the requirement of consideration of the life of the child before termination of pregnancy. According to the Petitioners, the Constitution only requires consideration of the life and health of the mother as a condition precedent to terminating pregnancy (abortion). The respondents, on the other hand, argued that an unborn child also has the right to the highest attainable standard of health and the right to life, which should also be taken into account.
Court’s determination
The court found the impugned clause of the national reproductive health policy to be unconstitutional, as it introduces a condition not contemplated by Article 26 of the Constitution. According to the court, the Constitution having provided a right to abortion where in the opinion of a trained health professional, there is need for emergency treatment, or the health or life of the mother is in danger, the requirement in the policy to ensure both the mother and her unborn child receive the highest attainable standard of healthcare negates the requirement in the Constitution. Introducing a new condition to be considered during termination of pregnancy, not contained in the constitution, is, according to the court, tantamount to second-guessing the constitution.
Permissible grounds for termination of pregnancy in Kenya
To bring this judgement into context, it is imperative to understand the circumstances under which abortion (termination of pregnancy is allowed in Kenya. The Constitution of Kenya expressly outlaws abortion except in the circumstances permitted by the Constitution itself. Article 26 of the Constitution, which safeguards the right to life, recognizes the beginning of life at conception. This makes Kenya a prolife nation. Abortion, if not done in accordance with the law, is an offense that attracts up to 14 years’ imprisonment.
Article 26(4) of the Constitution, however, allows abortion if, in the opinion of a trained health professional, the mother requires emergency treatment or if the health or life of the mother is in danger, and in cases where a written law allows termination of pregnancy. Simply put, abortion is only allowed in Kenya if, in the opinion of a trained medical practitioner:
- There is a need for emergency treatment of the mother.
- The life of the mother is in danger
- Where any other written law allows for termination of pregnancy.
Conclusion
The topic of abortion has been and remains a very contentious topic in Kenya. This judgement settles, at least, part of the abortion debate in Kenya. It is the health of the mother that is to be of paramount consideration during pregnancy termination procedures. It is important to note, however, that the judgment effectively makes abortion absolutely lawful in Kenya. Termination of pregnancy should only be done if, in the opinion of a trained health professional, it is necessary, for either emergency treatment of the mother or protection of the life of the mother.