On 24 March 2022, the Kenya High Court delivered a momentous ruling on the right to abortion. The decision sets a tempo in safeguarding women’s rights not only in Kenya but across the world. It is yet another great contribution from the Global South to global constitutional debate, reminding us that judges should be ready and willing to deploy their interpretive armory when protecting rights.
Moreover, I argue that it stands in sharp contrast to the recently leaked draft opinion of the United States (US) Supreme Court, overturning Roe v. Wade. Whereas the leaked draft opinion stands for an outdated, if not dangerous, type of judicial reasoning, the Kenya High Court exemplifies once again the transformative potential of constitutionalism.
Dynamic and Transformative: The Kenyan Case
In PAK, the petitioner, a form two student became pregnant after sexual intercourse with a fellow student. After experiencing complications with her pregnancy, she went to a clinic for treatment. The second petitioner administered emergency treatment to PAK (abbreviation for the first petitioner, a minor) and upon further examination, concluded that that she had suffered a spontaneous abortion. The second petitioner performed a successful manual vacuum evacuation, after which the petitioner was in fair general condition.
After some time, police officers stormed the Medical Clinic demanding the petitioner’s treatment records. The police proceeded to arrest the medical officer and other employees. The police also forced PAK to undergo medical examination at the County Hospital. The petitioners were later charged with the offence of procuring abortion contrary to section 159 of the Penal Code and with supplying drugs to procure abortion contrary to section 160 of the Penal Code.
Aggrieved with the actions of the State, the Petitioners moved to the High Court for the charges to be quashed. Additionally, the parties argued that the provisions of the penal code were unconstitutional for criminalizing abortion while there is no statutory scheme to operationalize Article 26 (4) of the Constitution.
Locating the Right to Abortion in the Constitution
The Constitution of Kenya, like other African constitutions, does not provide for the right to abortion. Article 26(4) provides for the right as an exception, stating ‘[a]bortion 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’.
The High Court, however, finds that in Kenya, there exists a right to access to safe abortion services. The judge, without stating it, employs the concept of indivisibility and interrelatedness of rights. Put simply, this is the idea that the effective implementation of a right can ‘contribute to the effective implementation of other categories of rights and vice versa’.
The judge, for instance, finds that forcing someone to carry ‘an unwanted pregnancy to term, or forcing them to seek out an unsafe abortion, is a violation of their human rights, including the rights to privacy and bodily autonomy’ and that the same amounts to a violation of the right to life.
The judge found that allowing women to resort to unsafe abortions puts the life of the mother in danger and this ‘ipso facto violates the right to life‘. The judge proceeded to hold that the lack of a statutory scheme violates the right to life.
Regarding the relationship between the rights to privacy and choice and the right to abortion, the judge finds that ‘there exists a direct link between a woman’s decision to terminate a pregnancy with the constitutional right to privacy since a matter concerning abortion should be left primarily to the woman‘. According to the judge, the only limitation to this right is that it must be exercised on the authorization of a trained medical provider.
Ultimately, the judge found the impugned provisions unconstitutional for criminalizing abortion under the Penal Code without a statutory and administrative framework on how the victims are to access therapeutic abortion as provided for in the exception under Article 26(4). The Court further found that the charges were unjustified and proceeded to quash the same.
Static and Rigid: Dobbs v. Jackson
In the leaked draft opinion of Dobbs, Justice Alito overturns the celebrated Roe v. Wade decision, which recognised the right to abortion in the US. Justice Alito overturns this decision mainly on two grounds: Firstly, the constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision. Secondly, for the right to be protected, it must have deep roots in the nation’s history.
Shockingly – and in a crude application of orignalist reasoning – the judge holds that the matter should be left to state legislatures. Unlike the Kenyan High Court, Justice Alito adopts a static and rigid interpretation of the Constitution, failing to safeguard women’s rights in any meaningful way.
The Alito opinion that the ‘Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision’ signals the potential end of the right to privacy in America. Although the US Constitution does not expressly provide for the right to privacy, the Supreme Court held in Grisworld v. Connecticut that there are various provisions in the Bill of Rights that implicitly safeguard the right to privacy.
Justice Alito further errs by creating a distinction between the right to abortion and the rights of members of the LGBTQI+ community. Unlike the Kenyan decision, Justice Alito misses the important concept of indivisibility and interrelatedness of rights. The rights to privacy and liberty form a basic foundation for the enjoyment of the right to abortion. The rights to choice and autonomy are key elements of the right to privacy and the distinction that Justice Alito draws is unjustified.
The finding is wrong in various further facets. Firstly, unlike the orginalist assumption that future generations are bound to (misguided) decisions of past generations, constitutions are a living thing which must be construed in light of the present day conditions. The Kenyan Supreme Court has spoken on this flaw by noting that once we accept that the framers might ‘fail to properly mine the aspirations of the people’ it is imperative to adapt constitutional interpretation to changing circumstances.
Secondly, courts have in the past enforced unenumerated rights through creative interpretations. For instance in India, courts have extended the right to life to encompass the right to livelihood hence protecting and expanding socio-economic rights. Thirdly, if taken to its logical conclusion, the result will be absurd. Justice Alito is suggesting that if a right has been historically excluded, then we cannot have that right today.
Whereas the Kenyan High Court cemented the right to abortion, Justice Alito’s leaked opinion is a threat to women’s rights, if it carries the day. Courts exist to shield unpopular (minority) rights from the excesses of majoritarian politics. Therefore, when interpreting the constitution, courts must be creative and proactive so that the bill of rights may have the deepest reach.
The Kenyan decision is a great contribution from the Global South on the right to abortion. It joins other progressive courts such as the Constitutional Court of Colombia that recently decriminalized abortion up to 24 weeks of gestation and Chile’s Parliament that recently proposed legalising abortion up to 14 weeks. In doing so, the Kenyan Court has struck a blow for the rights to privacy, choice and autonomy and has safeguarded women’s rights not only in Kenya, but across the world.
This post is also available on African Law Matters, our partner blog on issues of importance to the African continent.