The Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya were published in 2012 but were later controversially withdrawn. In two subsequent court cases the high court ordered that the guidelines be reinstated, stating that the letter withdrawing them was unlawful and unconstitutional. The two cases were ruled on in 2019 and 2022 respectively, but the judgements were appealed and the appeals have not yet been concluded.
Abortion in Kenya is regulated by Article 26(IV) of the Constitution which states that “Abortion 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.”
In 2014 the guidelines were withdrawn due to allegations that they were being misused by members of the Kenya Obstetrical and Gynaecological Society to perform abortions on demand. After withdrawing the guidelines, the Ministry of Health also suspended health workers' training in safe abortion care and the use of Medabon for medical abortion.
“The directive was accompanied by a warning of severe legal and professional repercussions to health providers if they participated in any abortion-related training,” said Jane Muhia, an advocate of the high court of Kenya and program officer of Civic Space, Law and Policy at ARTICLE 19 Eastern Africa, one of the interested parties in the case.
Muhia commented that the decision to withdraw the standards and guidelines should have been more consultative and should have been presented to the stakeholders who contributed to its creation.
Interested groups took to the court to challenge the decision by the Ministry of Health and in 2019 the court upheld that the process and grounds for removing the guidelines were wrong and directed that they should be republished and upheld. "I am baffled that standards and guidelines have not been republished despite the High Court's judgement," said Muhia, noting that the lack of guidelines creates a knowledge gap for medical professionals, women and the general public who need access to this information.
“The opaqueness around when and how to give emergency care and care related to abortions is crippling, and hinders women and girls from having access to proper reproductive health care,” said Muhia. She highlighted that access to information on sexual reproductive health contributes significantly to improved health as access to information is an enabler of many fundamental human rights and should not be unduly limited.
“The criminal code appears to give the police an excuse to arrest victims of spontaneous abortions or medical emergencies on post-abortion care," commented Dorcas Gitonga, program officer at Kenya Legal & Ethical Issues Network (KELIN). She emphasised that the withdrawal of these guidelines contributes to the stigma associated with seeking this health service which is both needed and legal under the permitted grounds and can be a lifesaver for women and girls.
The resultant lack of adequate professional skills relating to abortion procedures and the withdrawal of the standards and guidelines have created significant risks for women and girls in Kenya.
Kenya’s Ministry of Health (KOMH) report titled “Incidence and Complications of Unsafe Abortion in Kenya” which was published in 2013 revealed that women under 25 years old represent 48% of those seeking post-abortion care, while 17% of those seeking post-abortion care were aged 10-19 years old. The report estimated that 464 690 induced abortions occurred in Kenya in 2012, with 119 912 women requiring care for complications, some of which resulted in death.
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