THE CHIMERA OF THE CONSTITUTIONALLY ENTRENCHED EXCEPTION ON THE CONUNDRUM OF ABORTION IN KENYA; GIVEN BY ONE HAND, SNATCHED BY THE OTHER

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By Okore Jack Jayalo* & Ikonge Lyra*

Abortion, except in rare circumstances, is illegal in Kenya and despite that fact, it remains as one of the major and leading causes of maternal mortality and morbidity, with poor and young women least able to access adequate care. According to a research and study conducted in Kenya, despite abortion being illegal, more than 300,000 abortions occur annually.

Abortion is recognized as an emotive, sensitive and even divisive issue all around the world and the case is no different in Kenya. This is after the landmark decision was delivered in the case of Jane Roe v Henry Wade where a single pregnant woman challenged the constitutionality of the Texas criminal abortion laws which prohibits attempts or abortion except on medical advice for the purpose of saving the mother’s life. The court held that the Texas law making it a crime to assist a woman get an abortion violated her due process rights.

Abortion is further said to be a process that challenges moral, religious, political, legal, medical and psychological spheres. Indeed, from the onset, the subject matter herein is a hot-potato issue and therefore this research is timely as it comes in handy to provide workable solutions to this legal dilemma.

A Highlight on the Legal Framework

Kenya has been said to adopt the pro-life approach. This is by virtue of a Synovate poll conducted during the last referendum period. The poll made a finding that Kenyan citizens are overwhelmingly pro-life since 69% were against abortion whereas only 9% were for it. To add on that, the Medical Practitioners and Dentists Board recently banned Marie Stopes a renown reproductive health clinic from conducting abortion services in Kenya since they are illegal.

The Constitution of Kenya further supports the approach by first providing for the right to life. The Constitution further goes ahead to provide that life of a person begins at conception. The Constitution does not permit abortion save for very few and unclear exceptions.

Whereas conceptions tailored around the pro-choice notion bring about arguments in favour of the woman’s autonomy specifically that a woman has a right to decide what happens in her body, the pro-life approach on the other hand advocates for respect of human life from conception and advocates for sanctions for anyone that hinders the development of human life.

The Penal Code can be construed to be the chief statute governing the prohibition of abortion this is because the Code provides for criminal sanctions for any person who attempts to procure an abortion. The relevant provisions are exposed and demystified hereunder.

To start with, Section 158 of the Penal Code provides that any person who attempts with intent to procure miscarriage of a woman through unlawful administration of a noxious thing is guilty of a felony and is liable to imprisonment for fourteen years. At this stage, it is pertinent to note the severity of the punishment.

Secondly, ‘any woman being with a child, with intent attempts to procure her own miscarriage, unlawfully administers to herself or permits any poison or other noxious thing to be administered to her is guilty of a felony and is liable to imprisonment for seven years.’

The Penal Code goes further to provide that, ‘any person who unlawfully supplies to or procures for any person anything knowing that it is intended to be unlawfully used to procure the miscarriage of a woman is guilty of a felony and is liable to imprisonment for three years.’

In addition to that, the Penal Code provides that any person who kills an unborn child by any act or omission preventing the child from being born alive is guilty of a felony and is liable to imprisonment by life.

By virtue of these provisions in the constitution and the Penal Code, it is easily argued and concluded that Kenya as a country does not sanction abortion. It is pellucid that the law in Kenya abhors and frowns on abortion in proportional measures.

Further, the courts in Kenya while taking a pro-life approach and interpreting the law stricto sensu, have espoused this position virtually hook, line and sinker leaving not even an iota of doubt on their interpretation and intent. For instance, in the case of R v John Nyamu and 2 others, the accused persons were charged with two counts of murder contrary to section 203 and 204 of the of the Penal Code. This was after a crackdown was done of clinics providing illegal abortions. The accused persons were held in remand for a year awaiting trial. The matter was dismissed from court due to lack of evidence. The case was also termed improper.

Further, in the case of R v Jackson Namunya Tali, the accused a nurse was tried, convicted and sentenced to death by the High Court in Nairobi for the offence of murder. It was alleged that the accused person murdered Christine by virtue of section 213 of the Penal Code who according to the accused had a botched abortion that led to her bleed to death. The accused appealed and the conviction was quashed. The matter is still pending in court.

Commentators have observed that in Kenya there exists a National Reproductive Health Strategy (2009-2015) which aims at eradicating all forms of discrimination against women and the girl child, enabling them to exercise their reproductive and sexual rights. However, this policy document does not mention abortion at any circumstances. This shows how Kenya is against abortion.

Laws that validate abortion

Flipping the coin to the other side however, the same Constitution of Kenya that prohibits abortion creates a loop-hole that could be argued to validate abortion. It provides what this research terms as a ‘legal creep in on abortion’.

This is encapsulated under Article 26(4) of the Constitution which provides that, ‘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.’

Moreover, the Constitution provides that; every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care. Safe abortion has been argued by commentators to be part of international definition of reproductive health care.

The Constitution can further be said to sanction abortion by virtue of the right to privacy which is constitutionally recognised. The right to privacy herein receives a broad construction encapsulating the privacy as regards whatsoever decisions one would wish to take in their life, including and not limited to procuring abortion.

The right to privacy was encapsulated in the landmark case of Estelle Griswold and another v. Connecticut which involved a law that prohibited any person from using any drug, medical instrument for the purpose of preventing conception. The court in reaching a decision held that the statute was unconstitutional and that it violated the right to privacy which means that an individual, married or single, has a right to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

In relation to abortion, the court in Doe V Bolton ruled that the right to privacy extended to a woman’s decision to have an abortion.

In addition to the right to privacy, the Constitution in its Bill of Rights provides that, ‘every person has inherent dignity and the right to have the dignity respected and protected.’

The Penal Code also sanctions abortion by providing that,

A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.

Moreover, the Penal Code provides that, ‘a child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has independent circulation or not, and whether the navel string severed or not.’ This provision was used by the defence counsel in Dr Nyamu’s case and the learned judge also emphasised on the same provision in determining the case.

The Constitution of Kenya encapsulates that the general rules of international law shall form part of the laws of Kenya and that any treaty ratified by Kenya shall form part of the law of Kenya. By virtue of this provision, abortion in Kenya could be argued to be approved as a result of Kenya being a signatory to the Maputo Protocol.

The Protocol guarantees comprehensive rights to women including the improved autonomy in their reproductive health decisions. The Protocol stipulates that;

state parties shall take all appropriate measures to protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where continued pregnancy endangers the mental and physical health of the mother, or the life of the mother or the foetus.

Despite the fact that abortion is not permitted, it can be concluded that the Constitution sanctions abortion to some extent.

Many questions however arise from the exceptions provided on abortion since the position of abortion is unclear in Kenya. This is because we have no clarity on who a trained health professional is, what amounts to emergency treatment and what constitutes danger to the life or health of a mother.

Limitation of Rights

The architect and design of the Constitution of Kenya is that it provides for rights then thereafter presents the general limitation clause in Article 24. With such a limitation clause, abortion can be concluded to have been sanctioned by the Constitution. Abortion has been regarded killing of a foetus therefore taking its right to life.

As earlier discussed, the Constitution of Kenya prohibits abortion except in some few circumstances. As such, it can be argued that the right to life as provided by Article 26 has been limited.

The Constitution requires that for a right to be limited, a three-tier test has to be met. First, the right shall not be limited except by law. Secondly, the limitation should be to an extent that is reasonable and justifiable in an open and democratic society and finally whether the limitation meets the proportionality test.

Apart from the constitutional provision, the courts have espoused the position of the criteria for justifying limitations with absolute certainty. This approach, in consonance with the Constitution, was relied on in the separate opinion of Justice Kathurima M’Inoti in Mtana Lewa vs Kahindi Ngala Mwagandi and the judge affirmed the position thus;

Among those requirements is that the limitation should be set by a clear and specific law evincing intention to limit a right, and that the limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Other factors to be borne in mind in determining whether the limitation passes the constitutional muster includes the nature of the right to be limited, the purpose of the limitation, the nature and extent of the limitation, whether enjoyment of the right prejudices the rights of others and whether there are other less restrictive means of achieving the purpose of the limitation. Lastly no derogation is allowed whose effect is to derogate from the core or essential content of the guaranteed right…The requirement of an inquiry into whether the law supplying the limitation is reasonable is and is meant to ascertain that the limitation is proportional to the end sought and is necessary in the circumstances.

Authorisation by law

This tenet provides that a limitation must basically be authorised by law. This test has been met since abortion has been authorised by law when in the opinion of a trained health professional, there is need for emergency treatment, or the life of the mother is in danger, or if permitted by any other written law.

Reasonableness and justifiability in an open and democratic society based on human dignity, equality and freedom.

This part of the limitation test requires a law that restricts a fundamental right to do so for reasons that are acceptable to an open and democratic society based on human dignity, equality and freedom.

The test was expounded and developed in the case of R. v. Oakes when it sought to interpret the limitations clause in Section 1 of the Canadian Charter of Rights and Freedoms that allows reasonable limitations on rights and freedoms through legislation if it can be demonstrably justified in a free and democratic society. The Court observed that;

The values that underpin a ‘free and democratic society’ and which should be used as the ‘ultimate standard’ for interpretation of the limitation clause are values such as respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

The conditions set for granting abortion as stated in the Constitution are reasonable and justifiable since for instance when the life of a mother is in danger and abortion is a way to save it, when the mother is a rape victim then it is legal and justifiable to do so. The second test therefore receives a nod.

Proportionality

This test calls for a balance between a right to life on one hand and the limitation on the other which is abortion in this case. The Constitution further reinforces the importance of the proportionality test by providing that any legislation that limits a right or fundamental freedom should not be such as to derogate from the core or essential content of the right.

The High Court of Kenya also grappled with and intensively evaluated the question of proportionality in Kenya National Commission on Human Rights & Another v Attorney General & 3 Others where Justice Mativo observed that, ‘a key aspect of whether a limitation on a right can be justified is whether the limitation is proportionate to the objective being sought.’ The principle of proportionality was explained in the leading case of Roe v Wade where the court held that the right to privacy extended to a woman’s decision to have abortion, but it must be balanced against the state’s interests in regulating abortions that is protecting women’s health and protecting the potentiality of human life. As such in passing this test, it can be safely concluded that the right to abortion is a justifiable limitation of the right to life. However, this research advocates for a broad construction of the reasons that should warrant the same including proper construction of the strictures of the right to reproductive health care.

Personal Morality and Abortion

It has been argued that morality informs the formulation of the law governing abortion in Kenya. With such strict laws on abortion in Kenya, they reflect society’s need to regulate morality since women who seek abortion tend to be deemed immoral and criminal.

The right of a woman to procure an abortion seems to be at the centre of cultural wars. As such, whenever an issue is brought up on abortion, the question that often arises is whether there is a relationship between law and morality and to what extent should the law regulate the lives of citizens in order to sustain the integrity of the society while preserving individual liberty. This is because abortion is viewed by many people as immoral and as result, a woman who procures abortion with the knowledge of the society often faces stigmatisation.

Some commentators on this matter opine that abortion is ‘one of the most contested social issues of our time, one firmly straddling the problematic intersection of public policy and private life.’

The pro-life approach advocates have often argued that elective abortion of a foetus is a serious moral wrong since it robs such a being its future. Defenders of abortion-rights however, do not see the status of the unborn as the decisive factor in whether or not abortion is morally justified. They argue that the pregnant woman’s removal of an unborn entity from her body, even though it will probably result in its death, it is not immoral since despite the unborn have a full right to life, it cannot use the body of another against her will.

This notions can be traced back to the debate that sparkled years after the Wolfenden Report which basically recommended that the laws role was to protect the public and not to interfere in private lives.

On one hand, Lord Devlin was opposed to the recommendations and was of the view that the law should always intervene in acts concerning morality even when conducted in private. John Stuart Mill and Herbart Hart on the other hand were of the opinion that the law should not intervene and immorality as such should not be a crime.

John Stuart Mill in his ‘harm principle’ approach vouches for the freedom of choice and further that a law should only intervene in cases where a person does an act hurtful to others. John further argues that the government is ill-placed to do certain things such as policing morals.

Scholars have argued and this research adopts the proposition that in any matters of morals, the law should be slow and that as far as possible privacy should be respected.

In Kenya, matters concerning abortion largely bears on the religious perspective. The anti-abortion debate in Kenya dates back to the Roman Catholic Church’s circular letter which condemned both abortion and sterilisation. Indeed, certainty needs to be sought in this issue. There should be a clear-cut line of demarcation between religion and the law since the constitution itself provides that there shall be no state religion.

Conclusion

From the research, it is concluded that the Constitution sanctions a woman’s right to procure an abortion. Despite the fact that abortion is sanctioned, it is a leading cause of maternal mortality and morbidity. This means that something is wrong somewhere and something should be done.

It is our opinion that a woman’s right to procure an abortion should be fully sanctioned because in Kenya where violence amongst women and girls is rife, the risk of unwanted pregnancies that leads to unsafe dimension increases.

A woman should be able to decide what happens to her body and the government in my opinion should not interfere with that right. Hence abortion should be fully sanctioned.

The Penal Code should be amended so that it can conform to the new Constitution on matters abortion. Doctors are afraid to engage in abortion services for fear of the sanctions since the provisions on abortion are not clear and with that it is easy for them to be reprehended.

*OKORE JACK JAYALO LLB (Hons) Moi; Legal trainee Dentons, HH&M, can be reached at jokore42@gmail.com

*IKONGE LYRA LLB(Hons) Moi; can be reached at lyraikonge201@gmail.com