Kenya’s duty to ensure implementation of Article 26(4) in enhancing the right to reproductive health

Abstract

The Constitution of Kenya (2010) established an entitlement to therapeutic abortions under article 26(4) following advocacy by women 's and international human rights groups that the strict rules regarding abortion in the repealed Constitution were contributing substantially to the country 's high maternal mortality and morbidity. Article 26 was an attempt at compromise between preserving the right to life, which begins at conception as per the Constitution, and the right to obtain an abortion when the life and/or health of the mother is in danger and where it is provided under any other written law. This provision however, has done little to aid the situation on the ground with many women who would fall under the protected class of article 26(4) still obtaining abortions through illegal and unsafe means. Human rights groups have argued that this situation is aggravated by the hesitation of medical practitioners to perform abortion due to the lack of information on the legal parameters of article 26(4). This study suggests that the lack of a framework within which protected women can exercise their article 26(4) entitlement leads to a violation of women 's rights including their rights to reproductive health services under Article 43(l)(a) of the Constitution.