In Summary
  • The judges ruled that the manner in which the disputed standard national guidelines on safe abortion were withdrawn was unlawful.

Exactly a year ago, an 18-year-old girl (whom, for legal and ethical reasons, we shall refer to as JMM) died.

While her death went unnoticed, her name and experiences will forever be etched in history as one of the petitioners who brought the discussion of unsafe abortions, whose complications claimed her life, to the corridors of justice.

The landmark ruling delivered on Wednesday in the High Court was the culmination of a campaign that began after Nation published JMM’s story on February 2015.

She was, by then, a 15-year-old Form Two student from Kisii who was undergoing dialysis at the Kenyatta National Hospital due to kidney failure as a result of abortion-related complications.

The abortion that cost Sh1,500 was procured by a chemist who used metal rods to try to terminate the pregnancy.

At the time, she told Nation: “I regret what happened, but I am angry because I know that there are other girls who will go to that same chemist and they might die.”

UNLAWFULDECISION

She was one of 88 women in ward 1D receiving post-abortion care, considered an emergency medical intervention.

An unsafe abortion is defined by the World Health Organisation as a procedure for terminating an unintended pregnancy carried out either by persons lacking the necessary skills or in an environment that does not conform to minimal medical standards, or both.

The five-judge bench ruled that while abortion remains illegal according to the law, anyone can walk into a health facility and procure the same on the basis that there are guidelines to support the process.

Judges Aggrey Muchelule, John Mativo, George Odunga, Lydia Achode and Mumbi Ngugi ruled that the manner in which the disputed standard national guidelines on safe abortion were withdrawn was unlawful.

DIALYSIS

They therefore quashed the decision by the Director of Medical Services to withdraw the guidelines on safe abortion on December 3, 2014.

The judges said that the arbitrary withdrawal amounted to a limitation of the right to health without any reasonable justification.

“The withdrawal of the national guidelines on safe abortion amounts to discrimination, [violated] right to life, violated the rights of women and adolescent girls, violated access to information, consumer rights as well as having access to scientific progress,” they ruled.

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