[Rights of Freedom] Case on the Crime of Abortion Apr 11, 2019 / Case NO. : 2017Hun-Ba127, KCCR : , View : 458 Case on the Crime of Abortion [2017Hun-Ba127, April 11, 2019] *

          First Draft In this case, the Court held that (1) Article 269 Section 1 of the Criminal Act which penalizes a pregnant woman who procures her own miscarriage and (2) the part concerning “doctor” of Article 270 Section 1 of the Criminal Act which penalizes a doctor who procures the miscarriage of a woman upon her request or her consent did not conform to the Constitution, and ordered temporary application of these provisions until the legislature amends them by December 31, 2020.

Background of the Case

          The petitioner is an obstetrician-gynecologist who was indicted for procuring 69 miscarriages of women from November 1, 2013, to July 3, 2015, upon their request or with their consent. While the case was pending before the trial court, the petitioner filed a motion to request the trial court to refer the case to the Court for constitutional review of Article 269 Section 1 and Article 270 Section 1 of the Criminal Act. Upon denial of the motion, the petitioner moved to file this constitutional complaint against the above provisions on February 8, 2017. Subject Matter of Review The subject matter of review in this case is whether (1) Article 269 Section 1 (hereinafter referred to as the “Self-Abortion Provision”) and (2) the part concerning “doctor” of Article 270 Section 1 (hereinafter referred to as the “Abortion by Doctor Provision”) of the Criminal Act (amended by Act No. 5057 on December 29, 1995) violate the Constitution. The Provisions at Issue read as follows: Provisions at Issue Criminal Act (amended by Act No. 5057 on December 29, 1995) Article 269 (Abortion) (1) A woman who procures her own miscarriage through the use of drugs or other means shall be punished by imprisonment for not more than one year or by a fine not exceeding two million won. Article 270 (Abortion by Doctor, etc., Abortion without Consent) (1) A doctor, herb doctor, midwife, pharmacist, or druggist who procures the miscarriage of a woman upon her request or with her consent, shall be punished by imprisonment for not more than two years.

Summary of the Decision

1. Opinion of Nonconformity to the Constitution by Four Justices

          The general right of personality is guaranteed by the first sentence of Article 10 of the Constitution which provides for the protection of human dignity, and this is where the right to self-determination derives from. The right to self-determination encompasses a pregnant woman’s right to decide whether to continue her pregnancy and bring the baby to term. Other than the exceptions referred to in the Mother and Child Health Act, the Self-Abortion Provision completely and indiscriminately bans all abortions throughout all stages of gestation, and it forces a pregnant woman to continue her pregnancy by imposing criminal punishment on the woman who violates the ban. The Self-Abortion Provision thereby impinges on a pregnant woman’s right to self-determination. The Self-Abortion Provision has the legitimate purpose of protecting the life of a fetus, and imposing criminal punishment on a pregnant woman for procuring an abortion is appropriate means to deter abortion and thus accomplish the legislative purpose of the Provision. Pregnancy, childbirth, and parenting are among the most important matters that may crucially and fundamentally affect the life of a woman. Therefore, we believe that a pregnant woman’s decision whether to continue or terminate her pregnancy amounts to a decision that reflects profound consideration of all her physical, psychological, social, and economic conditions based on her own views on life and society―a holistic decision central to her personal dignity. At present, a fetus is considered to be viable (able to survive outside the womb) at around 22 weeks of gestation when provided with the best medical care available.

          Meanwhile, we find that the State should allow a pregnant woman to have sufficient time to contemplate and execute the holistic decision regarding continuing or terminating her pregnancy, in order to guarantee her right to self-determination. Given these considerations, we opine that it is reasonable for the State to draft legislation that is different from the current legislation in terms of the scope and means of protection on fetal life for the abortion that is to be procured before 22 weeks of gestation, which is the time when the fetus has viability, and at the same time, by when a pregnant woman is allowed to have sufficient time to exercise her right to self-determination in relation to abortion (hereinafter, the period from the time of implantation to such point shall be referred to as “Permissible Period for Determination”).

          During the conflict of determining the abortion, the threat of criminal punishment has only a limited effect on a pregnant woman’s decision whether to terminate her pregnancy. In addition, there have been very few cases in which a woman has been punished criminally for procuring an abortion. In light of these circumstances, we find that the Self-Abortion Provision does not effectively protect the life of a fetus during the conflict of determining the abortion. The Self-Abortion Provision also places a substantial burden on a woman who seeks or has undergone an abortion by limiting her access to counseling, education, and information regarding abortions. Also, it forces her to seek out expensive procedures to procure an abortion, making it difficult for her to seek relief in the event of medical malpractice during an abortion, and rendering her vulnerable to retaliatory harassment that could be committed by her ex-boyfriend or civil lawsuits involving domestic matters that could be filed by her ex-partner.

          Although the Mother and Child Health Act sets out several exceptions to the State’s complete ban on all abortions, it does not consider the conflict of determining the abortion based on the social and economic determinants, e.g., concerns about difficulty in continuing jobs, studies, or other social activities; low or unstable income; lack of resources to care for another child; no desire to continue a dating relationship or enter into a marital relationship with the partner; discovery of pregnancy at a point when the marriage has in effect broken down irretrievably, break-up of a dating relationship with the partner; unwanted pregnancy of an unmarried minor woman; etc. Under the Self-Abortion Provision, a pregnant woman who does not fall under the exceptions referred to in the Mother and Child Health Act is forced to continue her pregnancy completely and indiscriminately, with no exceptions, even if she has social and economic reasons for seeking an abortion, and is subject to criminal punishment if she procures an abortion by violating such provision. Accordingly, we find that the Self-Abortion Provision restricts a pregnant woman’s right to self-determination beyond the minimum extent necessary to achieve its legislative purpose. Thus, the Self-Abortion Provision does not satisfy the principle of least restrictive means. Moreover, the Self-Abortion Provision gives absolute and unilateral superiority to the public interest in protecting fetal life. Thus, it violates the principle of balance of interests. For these reasons, the Self-Abortion Provision violates the principle of proportionality and infringes the right to self-determination of a pregnant woman. Accordingly, the Self-Abortion Provision is in violation of the Constitution.

          The Abortion by Doctor Provision punishing a doctor who procures the miscarriage of a woman upon her request or with her consent was enacted for the same purpose as the Self-Abortion Provision. Therefore, it is unconstitutional for the same reason that the Self-Abortion Provision is unconstitutional. Considering the fact that banning and criminalizing abortions to protect the life of fetus are not in themselves unconstitutional for all cases, delivering a decision of simple unconstitutionality for the Provisions at Issue would create a legal vacuum in which no one is punished for abortion. Moreover, it is within the discretion of the legislature to remove the unconstitutional elements from the Provisions at Issue and decide how abortion will be regulated. The legislature has, within the limits that we have noted above, the discretion to decide, e.g., the length and end date of the Permissible Period for Determination; whether to set a specific time period during the Permissible Period for Determination in which a woman is permitted to undergo an abortion without evaluating social and economic justifications, one that needs to be determined to strike an optimal balance between the protection of fetal life and the right to self-determination of women; whether to prescribe additional procedural requirements such as counseling or deliberation period before an abortion could take place; and so forth. Therefore, we render a decision of nonconformity to the Constitution in lieu of a simple unconstitutionality decision for the Self-Abortion Provision and the Abortion by Doctor Provision and orders their temporary application until the legislature amends them.

2. Opinion of Simple Unconstitutionality by Three Justices

          We concur with the above four justices’ opinion of nonconformity to the Constitution that the State’s complete and indiscriminate ban on, and criminalization of, abortion during the above-mentioned periods and circumstances violate a pregnant woman’s right to self-determination. However, we differ from the nonconformity opinion for we believe that pregnant women must be permitted, regardless of their reasons for abortion, with the careful consideration of their situations to decide to have an abortion during the first trimester of pregnancy (up to 14 weeks of gestation since the first day of the last menstrual period), and thus we deliver a decision of simple unconstitutionality for the Self-Abortion Provision and the Abortion by Doctor Provision (the “Provisions at Issue”). A pregnant woman has the right to self-determination and must be, in principle, permitted to determine whether to continue or terminate her pregnancy, a holistic decision central to her personal dignity. Exceptions may be allowed in cases where, for instance, the fetus has become viable, or if the abortion takes place after the end of the first trimester of pregnancy and it thereby puts her life or health at risk, etc. Meanwhile, we note that if abortion should be allowed during the period when the procedures can be performed safely and on permissible grounds only, this would eventually lead to permitting abortions in extremely limited cases and would, deprive a pregnant woman of her right to self-determination, in effect. For the above reasons, we opine that the State should respect a pregnant woman’s right to self-determination during the first trimester of pregnancy―a period when a fetus has not yet developed to the stage of viability, abortion is safe, and careful consideration can be given to the determination whether to terminate pregnancy―and should ensure that she makes her own decision whether to abort after carefully evaluating her situations based on her own views of life and society which have roots in her internal dignity and autonomy. The Provisions at Issue violate the principle of proportionality by imposing a complete and indiscriminative ban on all abortions including safe ones during the first trimester. Therefore, they infringe the right to self-determination of pregnant women. If the Court delivers a decision of nonconformity to the Constitution for a law restricting a right of freedom even when the restriction in itself is constitutional but the degree of restriction is too excessive, it will eliminate the grounds of existence for a rule that the Court must declare an unconstitutional law invalid as well as the grounds of existence for the type of decision that is rendered based on this rule―a decision of unconstitutionality.

          Further, we do not see that striking down the Provisions at Issue would cause immense legal confusion or impose social costs, because these provisions have had only a limited effect on deterring abortions and have not functioned properly as penalty provisions. Meanwhile, solving the problem with ex post facto legislation after rendering the decision of nonconformity to the Constitution is against the purpose of the legislator allowing retroactive effects for the unconstitutional criminal law, but also it is too severe to impose all the burdens of vacuum in law to each individual. In addition, as stated above, the parts of the Provisions at Issue concerning criminalizing abortion during the first trimester of pregnancy clearly violate the Constitution, so the scope of punishment is not uncertain. Therefore, we are of the opinion that the Court should deliver a decision of simple unconstitutionality for the Provisions at Issue.

3. Conclusion

          Combining the opinion of simple unconstitutionality rendered by three Justices and the opinion of nonconformity to the Constitution rendered by four Justices, the Court finds that this number satisfies the quorum required for holding that a provision is in violation of the Constitution­­ based on the proviso of Article 23 Section 2 Item 1 of the Constitutional Court Act. Therefore, the Court declares the Provisions at Issue nonconforming to the Constitution and orders their temporary application until the legislature amends them. Summary of Opinion of Constitutionality by Two Justices Since a fetus and a person born alive are at sequential stages of human development, we hardly see any essential difference between the two, in terms of the level of human dignity and need for life protection. As such, we find that a fetus has a constitutional right to life as well. The legislative purpose of the Self-Abortion Provision is the protection of the life of a fetus. Given the considerable significance of this legislative purpose and the peculiar nature of the infringement of the right to life, we recognize the need for a strict ban on abortion with means of criminal punishment.

          We do not see that the importance of the public interest in protecting fetal life varies according to the stages of fetal development and that a pregnant woman’s right to dignity or right to self-determination prevails at certain stages of pregnancy and is outweighed by a fetus’s right to life at later stages. The majority opinion suggests that “social and economic determinants” should be recognized as permissible grounds for abortion; however, the concept and scope of such reasons are very vague, and it would be difficult to objectively ascertain whether a woman’s social and economic situations qualify as permissible reasons justifying abortion.

          We are concerned that legalization of abortion on social and economic grounds would produce the same result as the complete legalization of abortion―the widespread disrespect for human life in our society. Although it is true that the Self-Abortion Provision restricts a right to self-determination of a pregnant woman to some extent, yet such restriction does not outweigh the substantial public interest in protecting fetal life to be served by the Self-Abortion Provision. Thus, the Self-Abortion Provision does not violate the balance of interests. At the same time, considering that the motherhood is not properly protected in reality, the State should, in addition to criminalizing abortions, enact legislation that encourages women not to obtain an abortion, such as the “Parental Responsibility Act” that imposes more parental responsibility on unwed fathers, legislation to establish social protection system for unwed mothers, maternity protection policy that relieves women of the burden of pregnancy, childbirth, parenting, and so forth.

          The statutory maximum sentence for performing abortion prescribed in the Abortion by Doctor Provision is not excessive, and the court may sentence the offender to a suspended sentence or probation. Thus, the Abortion by Doctor Provision does not violate the principle of proportionality between responsibility and punishment. Further, doctors, as professionals engaged in the business of protecting the life of a fetus, are highly likely to be criticized for performing procedures depriving a fetus of life. Therefore, we find that the Abortion by Doctor Provision where the legislature did not set forth any monetary penalty like the one for abortion with consent provision (Article 269 Section 2 of the Criminal Act) does not violate the balance in criminal punishment, and thus is not against the principle of equality. Therefore, the Provisions at Issue do not violate the Constitution. * This translation is provisional and subject to revision.

JMM died in June 2018. Born on 5th February 2000, she was just 18 years of age. In January 2014, she had been admitted to form one at [Particulars Withheld] Secondary School, a day school situated within Keumbu Ward in Nyaribari Chache Constituency. She was staying with her elder married sister.

          2.  At some point in 2014, JMM was forced into sexual intercourse by an older man. She only realized that she was pregnant when she missed her menstrual cycle for two months and started feeling nauseous. She, however, did not disclose this to anyone for fear of being blamed and rejected by the family members.

          3.  On 8th December 2014 an older girl with whom JMM shared a bedroom introduced her to a person whom they referred to as ‘doctor.’ The “doctor” advised her that she could terminate the pregnancy. On a Saturday at 6.00 a.m. her roommate took her to a pharmacy situated at Ibeno Trading Centre where the roommate paid Kshs 1,500.00 towards the said procedure. Without examining JMM or carrying out any tests, the ‘doctor’ directed her to a back room where she was asked to lie on a bed. She was injected on her thigh and advised to go home and wait for the foetus to be expelled the next day.

          4.  When the foetus was not expelled, JMM returned to the pharmacy and the ‘doctor’ proceeded to insert a metal-like cold object in her vagina and once again the ‘doctor’ told JMM to go home as the foetus would be expelled by that evening. That evening, JMM started vomiting and experiencing severe stomach pains accompanied by heavy bleeding. She did not, however, disclose all this to her family, telling them only that she had a headache.

          5.  This information was narrated to the court by PKM, the 2nd petitioner, mother and next friend of JMM. PKM had received a call on 10th December 2014 from her elder daughter’s mother in law, with whom JMM was staying, informing her that JMM was feeling unwell, and was vomiting and bleeding heavily. She requested the said mother in law to take JMM to Ibeno dispensary where, upon being interrogated by the medical staff at the facility, JMM revealed that she had procured an abortion. The dispensary, however, did not have the equipment, facility and skilled staff to assist JMM, so it availed its ambulance to transfer JMM to Kisii Teaching and Referral Hospital, a Level 5 Hospital, approximately 15.6 km away. It was here that PKM found JMM in the afternoon of 10th December 2014 where the medical staff confirmed to her that JMM had procured an unsafe abortion. At the Hospital, JMM was taken to a general ward where the foetus was removed. JMM stayed at the Hospital till 12th December 2014 when she was discharged. PKM was unable to tell the exact nature of treatment that JMM received at the hospital, apart from being placed on intravenous therapy.

          6.  On the third day of JMM’s admission, the staff at Kisii Level 5 Hospital advised PKM that due to the unavailability of dialysis services at the hospital, JMM ought to be transferred to a health facility, which had such services as her kidneys, were failing due to heavy bleeding. She was advised to take JMM to Tenwek Mission Hospital, a faith-based hospital situate in Bomet County, about 50 kilometres from Kisii Town. Accordingly, and upon settling the accrued bill of Kshs 3,500.00 at the Kisii Level 5 Hospital, she made her own private arrangements to transfer JMM by taxi to Tenwek at the cost of Kshs 3,500.00 as she could not afford the amount of Kshs 12,000.00 required to transfer her by the Kisii Level 5 Hospital ambulance.

          7.  On 12th December 2014 at about 10.00 a.m., PKM transferred JMM to Tenwek Hospital where they arrived after about one and a half hours of travel. JMM was admitted into the intensive care unit upon payment of Kshs 3,000.00 by PKM. At the time of her admission at Tenwek Hospital, JMM was not able to talk.

          8. After three days of treatment, JMM was able to speak. She remained at Tenwek for about 7 days till 19th December 2014 when she was discharged on the ground that Tenwek Hospital did not have any equipment to undertake dialysis. PKM was then advised to take JMM either to Moi Teaching and Referral Hospital, Eldoret or Kenyatta National Hospital. She was offered the Hospital’s ambulance to transport JMM upon her undertaking to settle the accrued bills, which at the time of discharge was Kshs 65,000.00.

          9.  PKM opted to take JMM to Kenyatta National Hospital where they arrived on 19th December 2014. JMM was immediately admitted for surgical treatment. She continued to receive treatment, including dialysis, until 25th February 2015 when she was officially discharged as an inpatient but was to continue receiving treatment as an outpatient. The diagnosis from Kenyatta National Hospital at the time of her discharge was that JMM had had a septic abortion and haemorrhagic shock and had developed chronic kidney disease. As a result, JMM was referred for follow-up in the renal unit of Kenyatta National Hospital.

          10.  JMM’s troubles, however, were far from over. By the time of her discharge, the bill at Kenyatta National Hospital had risen to Kshs 39,500.00 which PKM was unable to pay. As a result, JMM was detained at the Hospital during which period she slept on a mattress spread on the floor due to scarcity of beds. She again fell sick during this period of detention and was once again taken to the main ward where she was treated for about four days. She was then returned to the detention room where she stayed for a period of 2 weeks until her release on 13th March 2015 when the hospital bill was waived.

          11.   The medical advice that PKM received after JMM’s release from hospital was that she was required to undergo dialysis every month at Kenyatta National Hospital renal unit at the cost of Kshs 50,000.00, a sum that was way beyond PKM’s reach. However, it would appear that due to financial constraints, JMM was yet to embark on her outpatient dialysis by the time of filing the petition.

          12.   PKM blames her daughter’s predicament on the respondents.  She argues that the Government of Kenya, through the Ministry of Health National Guidelines on the Management of Sexual Violence in Kenya, 2nd Edition, 2009 (2009 National Guidelines), made pursuant to section 35 (3) of the Sexual Offences Act, allowed termination of pregnancy as an option in case of pregnancy occurring as a result of rape. It was her case, further, that it is not clear how such services would be accessed. She contends that the physical and mental health of many women and adolescent girls would be protected if information was available with regard to the cadre of health professional that can provide services for legal termination of pregnancy.

          13.  PKM further argues that the withdrawal by the 3rd  respondent of the 2012 Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya (2012 Standards and Guidelines), and the  National Training Curriculum for the Management of Unintended, Risky and Unplanned Pregnancies (the Training Curriculum) on 3rd December, 2013 and 24th February 2014 respectively undermines the right to access safe legal abortion services, therefore leading to women and girls in the position of JMM to secure unsafe abortions from unqualified and untrained persons such as the ‘doctor’ who procured her abortion on 8th December 2014.

          14. PKM’s position was supported by the 3rd and 4th petitioners.  These petitioners are both community human rights mobilizers residing in Mathare Constituency within Nairobi County. Their area of residence is a mainly informal settlement inhabited by persons of low economic status. They narrate in their affidavits in support of the petition their experiences with cases touching on women and girls’ reproductive health, such as early pregnancies, defilement, rape, and unsafe abortion.

....Constitutional Rights implicated in the Petition.

          329.  The case of the petitioners is that the Ministry of Health, in promulgating the 2012 Standards and Guidelines, sought to manage all the aspects of prevention of unsafe abortion using the multi-sectoral approach.  They argue that the 2012 Standards and Guidelines addressed issues related to prevention and management of unintended, risky and unplanned pregnancies, post abortion care and standards for monitoring and audit.  Further, that the recommendations stuck to the laws as set out in the Constitution, Acts of Parliament and other legal instruments.

          330.  In addition, it is their contention that the 2012 Standards and Guidelines adhered to proven scientific recommendations and were developed in a process that involved a wide range of stakeholders, including representatives from the medical profession, religious sector, development partners and civil society organisations.  However, the 2012 Standards and Guidelines were withdrawn by the DMS through his letter dated 3rd December 2013, and the training curriculum was also withdrawn by the Memo dated 24th February 2014. The Memo also threatened professional and legal sanctions for those health care professionals who attended trainings on safe abortion practices and the use of Medabon.

          332. The petitioners argue that by withdrawing the 2012 Standards and Guidelines and issuing the Memo, the DMS undermined various constitutional rights guaranteed to women under the Constitution. These are the rights of women and girls to life under Article 26(1), the right to health, which includes the right to reproductive health under Article 43(1)(a)); the right to equality and non-discrimination guaranteed under Article 27 and the right to dignity under Article 28. They also allege violation of the right to freedom from cruel, inhuman and degrading treatment guaranteed under Article 29(f)).

          333.  It is also the petitioners’ case that the withdrawal of the 2012 Standards and Guidelines violates the petitioners’ right to access  information under Article 35(1)(b), including health-related information by depriving them access to potentially life-saving medical information and services and enjoying the benefits of scientific progress, and the right to freedom of expression under Article 33.

          334.  We have already set out elsewhere above the provisions of Article 26(1), which guarantees to everyone the right to life. This right is also guaranteed under international conventions to which Kenya is a party and which are, in accordance with Article 2(5) and (6) part of Kenyan law. In this regard, see Article 6 of the ICCPR and Article 3 of the UDHR. Article 1 and 2 of CEDAW guarantee to women enjoyment of all human rights on an equal basis with men.

          335. The right to life and the right to health are at the core of this petition. Article 43 (1) provides that “Every person has the right—(a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.”

We bear in mind, first, the provisions of Article 20 which provides that:

(1)   The Bill of Rights applies to all law and binds all State organs and all persons.

(2)   Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.

(3)  In applying a provision of the Bill of Rights, a court shall—

(a)  develop the law to the extent that it does not give effect to a right or fundamental freedom; and

(b)  adopt the interpretation that most favours the enforcement of a right or fundamental freedom. [Emphasis added]

          346.  In its decision in Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10; others [2015] eKLR  the Court set out succinctly the principles that a court should bear in mind when interpreting the Constitution. We can do no better than to set out the words of the Court:

“91. The Constitution has given guidance on how it is to be interpreted. Article 259 thereof requires that the Court, in considering the constitutionality of any issue before it, interprets the Constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights and that contributes to good governance.

92. We are also guided by the provisions of Article 159(2) (e) of the Constitution which require the Court, in exercising judicial authority, to do so in a manner that protects and promotes the purpose and principles of the Constitution.

93. Thirdly, in interpreting the Constitution, we are enjoined to give it a liberal purposive interpretation. At paragraph 51 of its decision in Re The Matter of the Interim Independent Electoral Commission Constitutional Application No 2 of 2011, the Supreme Court of Kenya adopted the words of Mohamed A J in the Namibian case of S. vs Acheson, 1991 (2) S.A. 805 (at p.813) where he stated that:

“The Constitution of a nation is not simply a statute which mechanically defines the structures of government and the relationship between the government and the governed. It is a ‘mirror reflecting the national soul’; the identification of ideals and ….aspirations of a nation; the articulation of the values bonding its people and disciplining its government. The spirit and the tenor of the Constitution must, therefore, preside and permeate the processes of judicial interpretation and judicial discretion.”

94. Further, the Court is required, in interpreting the Constitution, to be guided by the principle that the provisions of the Constitution must be read as an integrated whole, without any one particular provision destroying the other but each sustaining the other: see Tinyefuza vs Attorney General of Uganda Constitutional Petition No. 1 of 1997 (1997 UGCC 3).

          347. We are also guided by the words of the Court in Re Kadhis’ Court: The Very Right Rev Dr. Jesse Kamau & Others vs The Hon. Attorney General & Another Nairobi HCMCA No. 890 of 2004.  While dealing with the question of interpretation in a matter predating the present Constitution, the court expressed the following view with respect to interpretation of the Constitution, particularly in relation to the Bill of Rights:

“The general provisions governing constitutional interpretation are that in interpreting the Constitution, the Court would be guided by the general principles that; (i) the Constitution was a living instrument with a soul and consciousness of its own as reflected in the preamble and fundamental objectives and directive principles of state policy. Courts must therefore endeavour to avoid crippling it by construing it technically or in a narrow spirit. It must be construed in tune with the lofty purposes for which its makers framed it. So construed, the instrument becomes a solid foundation of democracy and the rule of law. A timorous and unimaginative exercise of judicial power of constitutional interpretation leaves the Constitution a stale and sterile document; (ii) the provisions touching fundamental rights have to be interpreted in a broad and liberal manner, thereby jealously protecting and developing the dimensions of those rights and ensuring that our people enjoy their rights, our young democracy not only functions but also grows, and the will and dominant aspirations of the people prevail. Restrictions on fundamental rights must be strictly construed.” [Emphasis added].

          348.  Finally, it is apposite at this point to consider the provisions of Article 24 of the Constitution, which sets out the parameters with respect to limitation of rights. This is in recognition of the fact that, with the exception of the rights set out in Article 25, all other rights may be limited in the circumstances prescribed under Article 24. This Article provides that:

1)  A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

a)  the nature of the right or fundamental freedom;

(b) the importance of the purpose of the limitation;

(c)  the nature and extent of the limitation;

(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and

(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

2)  Despite clause (1), a provision in legislation limiting a right or fundamental freedom—

(a) in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;

(b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and

(c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.

3)  The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied.

4)  The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance.

          349.  These provisions reflect what has emerged from judicial precedents which are persuasive in nature-see R vs Oakes (1986) ISCR 103.  The limitation of rights must, first, be by law, and secondly, the objective of the law must be pressing and substantial and must be important to society -see R vs Big Drug Mart Ltd (1985) ISCR 295.

          350. The third principle is that of proportionality-whether the state, in seeking to achieve its objectives, has chosen a proportionate way to achieve the objectives that it seeks to achieve.  The question to consider in this regard is whether the legislation meets the test of proportionality relative to the objects or purpose it seeks to achieve: see R vs Chaulk (1990) 3SCR 1303.

          354.  We observed elsewhere in this judgment that in our view, while Article 26(2) contains a prohibition of abortion, it contains the general rule. Article 26(4) sets out the exception to the general rule:

(4) 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.

          355.  There is some consensus, albeit limited, between the opposing parties to this petition that the above provisions allow a window for abortions in Kenya. The petitioners seek a liberal, wider interpretation of the provision, while the interested parties who oppose the petition allow for a mere chink- only when the life of the mother is in absolutely dire straits, for the life of the unborn child must be secured, in the words of Dr. Stephen Karanja, at all costs.  The position of the respondents is somewhat ambiguous on the issue. As emerges from the averments of Dr. Muraguri and Dr. Gondi, the respondents recognise the challenge posed by unsafe abortions that results from lack of a clear framework for ensuring that women have access to safe reproductive health care and post abortal services, have issued guidelines in the past with regard to such access, but appear to be somewhat intimidated by the objection from other sectors, particularly from the faith based sectors, to such initiatives.

          356.  In our view, the constitutional provisions with respect to abortion in a situation in which emergency treatment is required, or where the life of the mother is in danger, are not disputable. Section 2 of the Health Act, No. 21 of 2017, defines ‘emergency treatment’ as follows:

“emergency treatment" refers to necessary immediate health care that must be administered to prevent death or worsening of a medical situation;

          357.  The 2nd and 3rd interested parties have argued that this determination on whether or not an abortion should be permitted can only be based on the opinion of a “trained health professional” which in their view means a ‘qualified medical doctor.’ However, section 6(1) and (2) of the Health Act 2017 provides as follows:

(1) Every person has a right to reproductive health care which includes—

(a) the right of men and women of reproductive age to be informed about, and to have access to reproductive health services including to safe, effective, affordable and acceptable family planning services;

(b) the right of access to appropriate health-care services that will enable parents to go safely through pregnancy, childbirth, and the postpartum period, and provide parents with the best chance of having a healthy infant;

(c) access to treatment by a trained health professional for conditions occurring during pregnancy including abnormal pregnancy conditions, such as ectopic, abdominal and molar pregnancy, or any medical condition exacerbated by the pregnancy to such an extent that the life or health of the mother is threatened. All such cases shall be regarded as comprising notifiable conditions.

(2) For the purposes of subsection (1)(c), the term "a trained health professional" shall refer to a health professional with formal medical training at the proficiency level of a medical officer, a nurse, midwife, or a clinical officer who has been educated and trained to proficiency in the skills needed to manage pregnancy-related complications in women, and who has a valid license from the recognized regulatory authorities to carry out that procedure.

          358. One may ask why the Constitution, which was approved in a referendum by 67% of the people of Kenya, deemed it fit to use the term ‘trained health professional’ instead of ‘a medical doctor’ as contended by the 2nd and 3rd interested parties. In our view, this was a concession to the dearth of qualified medical doctors in many of our health facilities. As emerged in the course of the hearing of this petition, many of the first line health facilities to which women and girls in need of reproductive health services go to are manned by nurses and clinical officers.  We take the view therefore that this contention by the interested parties is not borne out by the constitutional and statutory provisions, or by the reality on the ground. As was recognised in the Constitution making process as contained in the Final Report of the Committee of Experts on Constitutional Review:

“The requirement that abortion could be performed by medical practitioners alone also raised concerns. It would mean that women in poor rural communities without such services would be unable to procure abortions with potentially serious or fatal repercussions for some poor women. There was also need to ensure that the language used by the PSC did not outlaw methods of fertility control, such as emergency contraception. The CoE accordingly amended the draft to include language that would enable appropriate medical intervention to be available when necessary.”

          359. What about the ‘health’ of the mother, the risk to which should allow for an abortion? The petitioners argue that this term should be read to include both physical and mental health. The respondents argue for an interpretation that covers only physical health.

          360. The Constitution does not define the term ‘health’. However, the Health Act defines it, in words that replicate the WHO definition as follows:

“health” refers to a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity;

          361.  WHO also defines health to include both physical and mental health:

“Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”

          362. In our view therefore, the Constitution permits abortion in situations where a pregnancy, in the opinion of a trained health professional, endangers the life or mental or psychological or physical health of the mother.

          363. A third exception to the prohibition of abortion under the Constitution is where abortion is permitted by “any other written law”.

          364. The question is whether there was ‘any other written law’ that permitted abortion and on the basis of which the withdrawn 2012 Standards and Guidelines had been issued, or which predated the Guidelines and permitted abortion in certain circumstances.

          365. The petitioners argued that abortion is lawful when it is permitted by a statute, treaty or convention, a view reflected also in the submissions of the 1st Amicus Curiae. It is further contended that section 35(3) of the Sexual Offences Act No. 3 of 2006 provides for such a situation. 

          371.  It  appears to us that under the Constitution and the Sexual Offences Act, while the general rule is that abortion is prohibited, it is permissible in the circumstances prescribed under Article 26(4), and further as provided under section 35(3) of the Sexual  Offences Act.   The 2009 Guidelines issued by the Minister in accordance with the Sexual Offences Act had provided that victims of sexual violence who became pregnant as a result should be informed that termination of pregnancy may be allowed after rape, and should they opt for termination, should be treated with compassion, and referred appropriately.

          372.   In our view therefore, women and girls in Kenya who find themselves pregnant as a result of sexual violence have a right, under Kenyan law, to have an abortion performed by a trained health professional if that health professional forms the opinion that the life or health of the mother is in danger. Health, in our view, encompasses both physical and mental health. 

The Promulgation and Withdrawal of the Standards and Guidelines

          378.  As we observed earlier, the state, represented in this petition by the respondents, and in particular by the DMS, had an obligation to ensure the enjoyment by women and girls of the rights under Article 26(4) and 43(1)(a).  As averred by Dr.  Muraguri and confirmed by Dr. Gondi, the state had taken the initiative and set up a Technical Working Group that was consultative in nature. This Working Group came up with the 2012 Standards and Guidelines that are the subject of this petition.  However, the 2012 Standards and Guidelines were withdrawn by the letter dated 3rd December 2013. The DMS had followed up the letter with the Memo of 24th February 2014 in which he had threatened dire legal and professional consequences for those who undertook training on safe abortion. As submitted by the petitioners, the withdrawal of the 2012 Standards and Guidelines was done unilaterally by the DMS.

          379. The petitioners submit that the withdrawal was in violation of their rights and the rights of women and girls such as JMM to fair administrative action under Article 47; to non-discrimination under Article 27; to dignity under Article 28; right to information under Article 35 and most importantly, as in the case of JMM, the right to life. 

          380.  The respondents support the withdrawal of the 2012 Standards and Guidelines, as well as the Training Curriculum. They argue that the 2012 Standards and Guidelines had included matters that had not been agreed upon in the Technical Working Group. While the 2nd interested party had initially alleged that it had not been part of the group that developed the 2012 Standards and Guidelines, it conceded later that this was not the case. Rather, certain items that had not been the subject of consensus had been included in the 2012 Standards and Guidelines.

          381. Article 10 of the Constitution provides as follows:

(1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them––

(a) applies or interprets this Constitution;

(b) enacts, applies or interprets any law; or

(c) makes or implements public policy decisions.

(2) The national values and principles of governance include––

(a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;

          382.  Apart from anything else it is clear that the 2012 Standards and Guidelines and the Training Curriculum were public policy documents. It is also clear that they were the product of a public participatory process as required under the Constitution. Their withdrawal however did not follow the same process. In other words, they were arbitrarily withdrawn. To our mind a decision to withdraw a public policy document must similarly be subjected to the constitutional dictates. It is a power that cannot therefore be arbitrarily exercised. It is now recognised that arbitrary exercise of power, even where it exists, is a ground to grant a judicial review relief which is one of the reliefs under Article 23(3) of the Constitution.

          383.  The question however, is whether the withdrawal of the 2012 Standards and Guidelines and the Training Curriculum was lawful. Article 43(1) (a) of the Constitution provides that every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.

          384.  Abortion in constitutionally permissible circumstances is clearly a right since as we have stated above, Article 26 of the Constitution falls under the Bill of Rights. The arbitrary withdrawal of the 2012 Guidelines and Training Curriculum clearly left those to whom the rights thereunder are bestowed, women and girls to the vagaries of medical quacks and backstreet services. In our view, their withdrawal amounted to a limitation of the said right....