The High Court has declared unconstitutional a section of the National Reproductive Health Policy 2022–2032, in a case filed by KELIN, Rachael Mwikali, Esther Aoko, and the Ambassador for Youth and Adolescent Reproductive Health Programme (AYARHEP).
Justice E.C. Mwita struck out paragraph 12 of clause 3.4.1, which required health professionals to consider the “highest attainable standard of health of the unborn child” before terminating a pregnancy. The court found that this clause conflicted with Article 26(4) of the Constitution, which sets the grounds for abortion in Kenya.
The ruling followed a petition challenging the policy’s constitutionality, inclusivity, and effect on women and adolescents. The petitioners argued that the policy was adopted without meaningful public participation, introduced discriminatory provisions, and restricted access to reproductive health services for young people and women. They cited limitations such as cervical cancer screening only for women aged 25–49 and restrictions on access to reproductive health services for those under 21.
The court held that the policy was developed with adequate public participation and that most of its provisions were consistent with the Constitution. However, it ruled that the impugned clause on pregnancy termination unlawfully expanded considerations beyond what is provided in Article 26(4).
The decision means the policy largely remains intact, but the unconstitutional clause does not bind health providers. The petitioners welcomed the partial outcome but raised concern that the judgment left unresolved issues, including mandatory HIV testing for pregnant women and the barriers faced by adolescents in accessing reproductive health services.
Rachael Mwikali, the first petitioner, said the court failed to address exclusion and discrimination in the policy-making process.
“While we respect the Court’s ruling, we remain deeply concerned that it failed to fully acknowledge the unequal and discriminatory nature of public participation in the formulation of the NRH Policy. The process excluded and marginalised key groups most affected, myself included, and therefore cannot be considered meaningful or effective. As the 1st Petitioner, I am not satisfied with the judgment, particularly on this critical issue of participation, non-discrimination and equality. I intend to appeal to ensure that constitutional rights and inclusive, rights-based policymaking are upheld,” she said.
