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Article Kenya: Proposed Law to Decriminalize Abortions

(Sept. 30, 2008) It was reported on September 16, 2008, that a new draft bill on women's reproductive health and rights, which seeks to decriminalize abortions, is ready to beintroduced in Kenya's Parliament. Impetus for the bill came from a campaign launched by civil society activists in May, sparking nation-wide debate on the issue, to reform the country's “archaic” abortion legislation. If the bill is adopted, it “would make Kenya only the second African country (after South Africa) to relax its highly stringent and restrictive abortion laws.” (Najum Mushtaq, Kenya: Ready for New Abortion Law? INTER PRESS SERVICE, Sept. 16, 2008, available at

Lead drafters of the bill include the Kenya chapter of the International Federation of Women Lawyers, the Coalition on Violence Against Women, and the Kenya Medical Association. A 2004 Ministry of Health study indicated that each year some 300,000 women in Kenya (almost half of them 14-24 years of age) have abortions. According to the study, “[t]he law as it is now is ineffective and difficult to enforce being commonly ignored by doctors and patients alike.” Doctors, it states, would like “to expand their discretion in the matter and decriminalise and regulate abortion under a different law” and recommend that the choice be left to the woman while they “provide an enabling environment for making this choice.” (Id.)

Under Kenya's Penal Code, anyone who administers to or causes a woman to take, with the intent to procure a miscarriage, “any poison or other noxious things, or uses any force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for fourteen years” (art. 158, Penal Code, No. 24 (1967) 12 LAWS OF KENYA Cap. 63 (2005), (last visited Sept. 18, 2008)). Women who seek an abortion will also be held criminally liable and be subject to punishment of seven years' imprisonment upon conviction (art. 159, id.), except “in cases where, in the considered view of doctors, it can be proven that the mother's life is in danger.” (Mushtaq, supra.) Supplying drugs or instruments to procure an abortion is also punishable (art. 160, Penal Code, supra). Nevertheless, these provisions are reportedly “applied only in a few exceptional cases. In fact, it has only helped to raise the cost of safe abortions and push most women seeking to end pregnancy into the hands of quacks who use all sorts of poisonous potions and sharp objects.” (Mushtaq, supra.)

The likelihood of Parliament passing the bill is deemed slim; a 2004 attempt to legalize abortion, made in conjunction with the process to redraft Kenya's Constitution, failed. According to lawyer-activist Alice Wahome, although the engendering of the heated debate on abortion is in itself “a big step forward,” “Kenya is not ready for [the bill]. … There are 20 women and 200 men in the parliament. Outside the legislature, opposition from the churches and patriarchal social norms will also not allow any such change. No chance.” (Id.) The head of Kenya's National Council of Churches, for example, expressed his opposition to the bill's tabling as well as any potential passage, calling it “an outrageous attempt to legalise abortion.” (Id.) Muslim and Catholic leaders have also expressed opposition to the bill. (Kenya: Muslims Join Catholics in Opposing Proposed Abortion Law, CATHOLIC INFORMATION SERVICE FOR AFRICA (Nairobi), Sept. 16, 2008, available at

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