Bernice Mbugua @BerniceMuhindi
A bid to legalise abortion in Kenya flopped yesterday after the High Court affirmed the practice is only permissible when the life of the mother is at risk.
The court said only a certified medical practitioner can conduct any safe abortion if the pregnancy was a risk to life to the mother or child.
Justices Aggrey Muchelule, John Mativo, Lydia Achode, George Odunga and Mumbi Ngugi also spelt out guidelines to be used in determining qualified medical practitioners allowed to perform an abortion.
“In the question of who is a trained medical professional as per the abortion provision, we rely on the Health Act which describes a trained medical professional as a midwife, clinical officer, nurse and any other trained medical worker,” the five-judge bench ruled.
“In regard to what should be termed as the health of mother, we rely on medical descriptions that state it is the social, mental and physical state. Therefore, abortion is permitted where the health of a mother is at risk as determined by a trained medical professional,” they said.
But in what appeared to be a reprieve to the pro-abortion activists, the judges reinstated safe abortion standards and guidelines, which had been abolished by the government.
The judges declared unlawful a February 2014 Health ministry memo, which terminated the training of health workers on safe abortion care or the use of the drug Medabon for medical abortion.
They faulted a ministry directive, saying it did not follow the right process, as there was no public participation before they were issued.
The judges said Kenya was part of the Maputo Protocol that allows women to seek abortion services in cases where they get pregnant through sexual violence. They affirmed the illegality of abortion save for protection of life as provided for in the Constitution.
“Pregnancy resulting from rape, if in the opinion of a health provider possess a threat to life or health that is physical, mental and social wellbeing of the mother, may be terminated under the exceptions provided in the Constitution,” ruled Justice Muchelule.
The judges, who were delivering a verdict on a compensation petition — the basis on which Federation of Women Lawyers (Fida) anchored its bid to legalise abortion — awarded Sh3 million to JMM’s mother whose child died after procuring an unsafe abortion. “We order a compensation of Sh3 million, being the sum for physical, physiological, emotional and mental anguish the patient suffered,” added Muchelule.
JMM got pregnant after sexual violence and tried to procure an abortion from a quack doctor but bled excessively, thus damaging her kidneys. She did not survive despite being taken to three government hospitals for post-abortion care.
Fida filed the case on behalf of JMM’s mother and two other petitioners against the Director of Medical Services and Health ministry.
The petitioners argued that the directive by the Director of Medical Services created an environment where survivors of sexual violence could not access safe services.
The Ministry of Health and Catholic doctors, who were interested parties in the suit, however, maintained that abortion was illegal and urged the court to dismiss the suit.