The Constitution sets the only valid grounds for determining when abortion is lawful, said Martin Onyango, a legal adviser at the Centre for Reproductive Rights.
He spoke at an event marking the close of the 16 Days of Activism campaign, where access to care for survivors of sexual violence took centre stage. In his remarks, Onyango outlined the legal bases that govern the issue. He said the Constitution permits abortion when a trained health professional determines there is an emergency, when a woman’s life is at risk, when her health is at risk, or when any other written law allows it. He also pointed to the Sexual Offences Act, which provides for the termination of pregnancy as a medical remedy for survivors of sexual violence.
“The Constitution allows abortion in the opinion of a trained health professional in emergencies, or when the life of a woman is in danger, or when the health of a woman is in danger,” averred the legal adviser, insisting health includes physical, mental and social well-being, as set out in the Health Act. He noted that the Sexual Offences Act requires health workers to inform survivors of the option of termination and to treat them with dignity and compassion if they choose it.
“The only other written law that allows for abortion is the Sexual Offences Act, which provides termination as a medical remedy for survivors of sexual violence,” added Martin.
He said many conflicts on the ground arise from confusion among health workers, who must align guidelines and policies with the Constitution. Onyango added that sexual violence remains largely unaddressed because its effects are less visible than physical violence.
Onyango linked the debate to a landmark case filed in 2015 by FIDA Kenya, Mumbi, Victoria and a survivor identified as JMM. The petition sought clarity on whether abortion is a constitutional right and whether survivors of sexual violence can access it under the Sexual Offences Act. In 2019, the High Court held that abortion is a fundamental right within the limits set by the Constitution and confirmed the rights of survivors to access care.
“The High Court agreed that abortion is a fundamental right in Kenya within the limits of the Constitution.” Onyango Said
The ruling also confirmed that nurses, midwives, clinical officers and doctors qualify as trained health professionals for the purpose of providing abortion services.
Onyango said the decision resolved years of uncertainty and gave a clear guide for health workers and state agencies.
