Abortion in Kenya: Adequacy of the Kenya’s Legal Framework in Protecting the Unborn Child

Abstract

Abortion is recognised as an emotive, sensitive and even divisive issue. Following the decision in the US case of Roe v Wade, abortion has persistently remained a controversial issue in today‘s society. In Kenya, for instance, the prolife and prochoice are often fighting for what each side believes to be the correct position with regard to the abortion question. While the prochoice argue in favour of the pregnant woman‘s autonomy based in law, the pro-life work to disproof that fact in order to advocate for the protection of the unborn child as well as the long term psychological welfare of the woman. This controversy is exacerbated by the inconsistency that exists in Kenya‘s legal framework on abortion. For instance, Article 26 (4) of the Constitution prohibits abortion but provides for exceptions, such as ―emergency treatment,‖ ―if the life or health of the mother is in danger,‖ and ―if permitted by any other written law.‖ Section 240 of the Penal code only provides the ―health or life‖ exception but introduces an important threshold to check the opinion of the doctor contemplated under Article 26 (4) of the Constitution: ―good faith‖ and ―with reasonable care.‖ However, insofar as sections 158-160 of the Penal Code remain prohibitive, the enforcement of the constitutional exceptions is rhetoric. In addition, sections 211 and 240 of the Penal Code have not been harmonized to reflect the spirit of Article 26 (2) of the Constitution on when life begins. The inconsistency arising from these provisions imply that the unborn child is not adequately protected under the Kenya‘s law. Best practices from UK draw the argument that having severe penalties to contain clandestine abortions in Kenya cannot be the only solution; there is need for more thresholds, such as the provision of the opinion of two other registered medical practitioners and more importantly seeking alternative options such as adoption as is increasingly occurring in the USA.