Hundreds of youth activists and reproductive health advocates marched from Nairobi’s Central Business District to Afya House on Thursday to protest a Court of Appeal ruling that reinstated criminal proceedings against a teenage girl and a clinical officer in an abortion-related case.
The protesters said the ruling could affect access to reproductive healthcare services, with some warning that women and girls may avoid seeking emergency treatment for fear of arrest or prosecution.
Carrying placards demanding justice and protection for women and girls, the demonstrators accused the justice system of criminalizing patients seeking medical care and targeting healthcare workers providing emergency treatment.
The ruling overturned a 2022 High Court decision that had stopped the prosecution of a teenage girl identified in court documents as PAK and a clinical officer in Kilifi. The Court of Appeal directed that the matter proceed to a full trial.
The case dates back to 2020 and involves charges under sections 158, 159, and 160 of the Penal Code relating to the alleged procurement of abortion and the supply of drugs to procure miscarriage.
According to court records, PAK was 16 when she became pregnant after allegedly being defiled and later lost the pregnancy. Reproductive health advocates say she sought emergency medical treatment after suffering complications before she and the clinical officer attending to her were arrested.
Speaking during the protests, Martin Onyango, associate director for Africa legal strategies at the Center for Reproductive Rights, said the case reflects the challenges faced by vulnerable girls seeking healthcare.
“PAK was a schoolgirl from a very poor background in Kilifi. She became pregnant and, unfortunately, lost the pregnancy. Instead of receiving care and protection, she was criminalized,” Onyango said.
He further claimed that the teenager was removed from the hospital while still receiving treatment before recording a statement linked to the case.
“The child was removed from the hospital bed. The clinical officer who was treating her was also arrested,” he said.
The matter was first heard before a magistrate’s court in Kilifi, where the accused sought to stop the proceedings. Their lawyers argued that the girl had already lost the pregnancy before arriving at the hospital and required emergency post-abortion care, which they maintained is lawful under Kenyan law.
The magistrate’s court declined to terminate the proceedings, ruling that the issues raised required a full trial. The accused later moved to the High Court in Malindi, arguing that their arrest, detention, and prosecution violated constitutional rights.
In its 2022 judgment, the High Court partly agreed with the petitioners and quashed the criminal proceedings, finding that the rights of the teenage girl and the healthcare worker to dignity, privacy, health, and protection from cruel or degrading treatment had been violated.
The High Court also raised concerns over the handling of confidential medical information obtained from the hospital without a court order or proper authorization.
The court further stated that abortion is permitted under limited circumstances outlined in Article 26(4) of the Constitution, including cases where emergency treatment is necessary or where the life or health of the mother is at risk. It also directed Parliament to develop clearer laws guiding reproductive healthcare services.
However, the ruling was challenged by anti-abortion groups alongside the attorney general.
In overturning the High Court judgment, the Court of Appeal ruled that the trial court remains the proper forum to determine the facts and evidence presented by both sides.
“The criminal proceedings provide the requisite judicial platform on which the veracity of the charges stands to be tested,” the appellate court ruled.
The judges added that halting the trial was premature and found no evidence that the prosecution had acted in bad faith or outside its legal mandate.
The court further held that abortion is not an absolute right under the Constitution.
“Abortion is not a fundamental right guaranteed under the Constitution; on the contrary, it is expressly prohibited but with exceptions in limited circumstances under Article 26(4),” the court ruled.
The appellate judges also stated that claims relating to unlawful arrest, forced medical examination, and violation of privacy can still be addressed during the criminal trial.
The Court of Appeal subsequently set aside the High Court judgment in its entirety and reinstated the criminal cases in Kilifi for hearing and determination on their merits, directing each party to bear its own legal costs due to the public interest nature of the matter.
The decision has since drawn criticism from reproductive health organizations and activists, who argue that it could affect how healthcare workers respond to emergency reproductive health cases.
According to Onyango, the appellate court shifted focus from alleged rights violations and instead addressed broader constitutional questions on abortion law in Kenya.
“The Court of Appeal stated that abortion is not a fundamental right. In doing so, it rolled back gains made under the 2010 Constitution regarding reproductive healthcare rights,” Onyango said.