The African Commission on Human and Peoples’ Rights (the Commission), through the Special Rapporteur on the Rights of Women in Africa, the Special Rapporteur on Freedom of Expression and Access to Information in Africa, together with the country rapporteur for the Republic of Kenya, welcomes the judgement of the High Court of Kenya on 12 June 2019 on the Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya and the National Training Curriculum for the Management of Unintended, Risky and Unplanned Pregnancies.
The High Court declared as unconstitutional the withdrawal by the Director of Medical Services of the 2012 Standards and Guidelines. The Court similarly found as unconstitutional the withdrawal of the Training Curriculum.
The Court found these withdrawals were not justifiable, and that they were prejudicial to women, and violated the rights of women and adolescent girls of reproductive age to the highest attainable standard of health. The Court further found that the unjustifiable limitation amounted to the violation of the right of women and girls to non-discrimination, as well as the right to information, consumer rights, and right to benefit from scientific progress.
The Court, among others, issued a declaration that pregnancy resulting from rape and defilement, which in the opinion of a trained health professional poses a danger to the life or the health of the mother, may indeed be terminated under the exceptions provided under Article 26(4) of the Constitution of Kenya.
The Commission welcomes this decision, noting that it is in line with the Campaign for the Decriminalization of Abortion in Africa, which was launched by the Special Rapporteur on the Rights of Women in Africa in Addis Ababa, Ethiopia, on 18 January 2016.
Furthermore, this decision is in line with Article 14 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) which guarantees women’s right to health, including sexual and reproductive health, and specifically Article 14(2)(c)which requires State Parties to “protect the reproductive rights of women by authorizing medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother, or the life of the mother, or the foetus.” It is also in line with the Guidelines to Combat Sexual Violence and its Consequences in Africa, which urges State Parties to the Maputo Protocol to adopt necessary measures to create favourable conditions to enable and facilitate access to medical abortion for minors who are victims of sexual violence.
The Commission also notes that the right to access information, as guaranteed by Article 9 of the African Charter on Human and Peoples’ Rights, is a facilitative right as it enables exercise of other rights such as the right to sexual and reproductive health rights for women and girls. The right to information relating to sexual and reproductive rights is an essential element of the right to health, and countries have an obligation to ensure that information about sexual and reproductive health is available to all individuals and groups.
The Commission urges all State Parties to ensure that women and girls can access comprehensive and accurate sexual and reproductive health information in order to exercise their right to the highest attainable standard of health. Additionally, the Commission urges the Republic of Kenya to consider lifting its reservation of Article 14(2)(c) of the Maputo Protocol to ensure that women may have full exercise of the constitutional protection established in Article 26(4) of the Constitution and affirmed by the High Court last week.
Banjul, 20 June 2019
