Rethinking abortion in Kenya: a reproductive health right for victims of rape and sexual abuse

Abstract

In Kenya today, abortion is and has always been considered as an emotive and sensitive matter. The public is tom between being pro-choice and prolife. The pro-life advocating for the unborn children while the pro-choice advocating for the woman's reproductive right to procure an abortion. Kenya's law on abortion as put out in the Constitution under article 261 criminalizes abortion while subsection ( 4 ii of article 26 gives the extent to which an abortion can be procured. The extent to which abortion is allowed is in cases of emergency where the life or health of the mother is in danger and if it is permitted by any other written law. Further, article 26 (2)3 of the constitution of Kenya states that life begins at conception which is debatable and not factual for it is purely based on opinion, one's school of thought and religious affiliations.4 When life really begins is a question that even medical experts have failed to agree on. Precedence set over the past years also fails to really determine when life actually begins. Case law that actually agrees that life does really begin at conception does agree that an unborn child is no person thus rights cannot apply to them for civil rights in a civil society only apply to persons. 5 The Kenyan Penal Code under section 1586, 1597 and 1608 completely outlaw abortion without regard to the exceptions as provided under article 26 ( 4) of the constitution. This creates an inconsistency with the abortion laws in Kenya as a country.