Early this month, the ODPP charged a pharmacist for allegedly performing an abortion on a 15-year-old girl who became pregnant due to rape.
On social media, a debate ensued about whether the decision to charge was proper since the law appeared to allow abortion for victims of rape and incest. Others questioned whether a pharmacist was lawfully qualified to perform the procedure.
The issue of abortion is emotive all around the world. In Kenya, abortion was a major flashpoint in the Constitution-making process, holding much sway in the run-up to the referendum. Religious groups felt that allowing abortion, even to save the mother's life, violated the right to life and was an affront to the law.
Eventually, the 2010 Constitution at Article 26 (4) provided that "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".
In late 2013, the Director of Medical Services (DMS) withdrew the Standards and Guidelines and Training Manual on providing safe abortion. Medical professionals were prohibited from training on Medabon, a non-invasive abortion drug containing Mifepristone and Misoprostol, by the DMS early the following year.
In 2014, a 14-year-old girl who got pregnant due to rape sought abortion services from a "doctor" who injected her thigh in a back room and told her to go home and wait for the foetus to be expelled. Later, she would suffer complications and seek treatment at her local dispensary, a level 5 hospital where the foetus was removed, a mission hospital and then Kenyatta National Hospital. In addition to septic abortion and hemorrhagic shock, she developed chronic kidney disease requiring monthly dialysis. In 2018, she passed away.
A constitutional petition was filed in 2015 by the mother of the girl and NGOs contesting the withdrawal of the guidelines. The petition also asserted that the Sexual Offences Act permitted abortion in cases of incest and rape. They also claimed there was no information on who could conduct abortions. Their position was that the withdrawal of guidelines, banning Medabon and preventing health professionals from training in its use jeopardised women's health.
The court determined that the Standards and Guidelines and Training Curriculum were public policy documents that cannot be withdrawn arbitrarily. Girls and women had the right to the highest attainable standard of health, including health care services, including reproductive health care, even if the standards, guidelines, and curriculum had been removed procedurally. In their opinion, the withdrawals had violated women's rights to the highest attainable standard of health, to non-discrimination, to information, to consumer rights, and to benefit from scientific progress.
As for what constitutes a "trained health professional", the court disagreed with the state's assertion that only medical doctors qualify. The court widened it to include nurses, midwives, and clinical professionals with the necessary training. In fact, very few Kenyans have access to medical doctors.
The court determined that the memo, which withdrew Medabon and banned medical practitioners from using it, violated or threatened the rights of healthcare professionals to information, freedom of expression, association, consumer rights, and the right to benefit from scientific advances. Additionally, the court declared that pregnancy resulting from rape and defilement may be terminated under the Constitution's exceptions if it threatens the mother's life or health (physical, mental, and social well-being).
Regarding the recent case, it appears that the girl was entitled to abortion care due to the rape that caused her pregnancy. However, does the pharmacist qualify as a trained health professional? Was he formally trained in abortion care?
