A court of appeal in Kenya Friday overturned a ruling that affirmed the right to access abortion, setting up a legal clash that is likely to be appealed again to the Kenyan Supreme Court.
The appeal was based on the 2022 case of a teenager who went to the hospital with pregnancy complications. A doctor who examined her determined she had lost the pregnancy, and provided emergency post-abortion care. They were acquitted by the high court.
The high court in 2022 had ruled that access to abortion was a fundamental right under the constitution, declaring the arrest and prosecution of women and health care providers unconstitutional. The court of appeal on Friday reiterated that abortion denies a child the right to life as guaranteed in the constitution and is prohibited except in circumstances such as when the life of the mother is at risk. “In effect, abortion is not a fundamental right guaranteed under the Constitution. On the contrary, the constitution expressly prohibits it but provides exceptions in limited circumstances where it may be permissible,” the ruling read in part.
Kenya’s penal code criminalizes abortion, imposing a sentence of up to 14 years in prison for attempting or procuring an abortion. The Kenyan constitution, however, permits abortion if a trained health care worker recommends it as emergency treatment to save the life or health of the mother. A global human rights group, the Center for Reproductive Rights, on Friday termed the ruling a “setback” and said it would “move to the Supreme Court of Kenya to correct this anomaly.” A local faith-based organization, the Kenya Christian Professionals’ Forum, and the attorney general had appealed the 2022 high court decision that ruled that abortion was a fundamental right under the constitution.
The forum’s lawyer and former chairperson, Charles Kanjama, said the decision of the court of appeal had “restored constitutional balance which had been distorted by the high court ruling.” “That means if somebody is accused of an offense under Sections 158, 159, or 160 of the penal code, as happened in this case, they have to provide evidence to show that they were not engaged in the crime of abortion on demand,” Kanjama told The Associated Press.
Abortion is a leading cause of maternal deaths, and an estimated 792,000 induced abortions occurred in Kenya between April 2023 and May 2024, according to a report jointly published in 2025 by the Ministry of Health, the African Population and Health Research Center, and the Guttmacher Institute.
