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Justice George Odunga at Milimani Court on March 28, 2018. He was part of the judge bench that declared abortion illegal but procurable only if life of the mother is at risk. [George Njunge /Standard]
The High Court has ruled that abortion remains illegal in Kenya and will only be permissible when the life of the mother is at risk, as a result of pregnancy.
However, the court has also ruled that safe abortion which is procured within the confines of the law must be done by permitted medical health practitioners.
While making the ruling Justice George Odunga gave certain conditions which can determine whether the health status of the mother requires safe abortion as the remedy.
“In regards to what should be termed as the health of mother, we rely on medical descriptions that state it is the social, mental and physical state. Therefore, abortion is permitted where the health of a mother is at risk as determined by a trained medical professional,” he said.
He further said: “In the question of who is a trained medical professional as per the abortion provision, we rely on the Health Act which describes a trained medical professional as a midwife, clinical officer, nurse and any other trained medical worker.”
The case preceded a petition by Federation of Women Lawyers (FIDA-Kenya) and three other parties where they challenged a directive by the Ministry of Health in 2012, where it withdrew the national guidelines for the procedure.
The court ruled in favour of the petitioners faulting the directives that were given by the Government.
“It is clear that 2012 guidelines and the national training curriculum were as a result of public concern. Its withdrawal should follow due process as it was arbitrarily withdrawn,” read Justice Mumbi Ngugu, during the ruling.
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