Constitutional but criminal: an analysis of the ambiguous abortion law in Kenya through the prism of international human rights
Upon the inauguration of the Constitution of Kenya in 2010, women's reproductive health rights seemed poised to witness progressive guarantees that would be in line with international human rights standards – this has not been the case. On the one hand, the Penal Code of Kenya effectively criminalizes abortion. Conversely, Article 26(4) of the Constitution of Kenya, 2010 provides an exception to the general rule criminalizing abortion. Article 26(4) of the Constitution of Kenya provides that abortion is permissible only if a quali ied health professional deems an emergency treatment necessary, or when there is a discernible threat to the life of the mother, or if sanctioned by any other written law. Unfortunately, sections 158, 159 and 160 of the Kenyan Penal Code, which proscribe abortion, have not been amended to be in line with the Constitution of Kenya, 2010. The discordant legal framework has induced ambiguity and confusion regarding abortion law in Kenya. This thesis critically explores the evolution of abortion law in Kenya and analyses how the Courts have, in light of the ambiguity in the legal framework, adjudicated abortion cases. It examines what, if at all, are the human rights implications of criminalizing abortion. Relying on comparative research methodology, the thesis examines the abortion laws in South Africa and Ireland to provide insights on how Kenya can develop its abortion laws to better protect the rights of women and girls and adhere to its human rights obligations. Ultimately, the thesis argues that the inherent ambiguity within Kenya's abortion laws perpetuates the violation of women's and girls' rights and thus ought to be amended.
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