Malindi ruling on abortion has now opened a pandoras box

A debate has been raging for over a fortnight now on a High Court ruling by Justice Rebeun Nyakundi on abortion rights. In the landmark ruling delivered in Malindi, the Judge averred that abortion care is a fundamental right under the Constitution of Kenya. The judge further declared that arbitrary arrests and prosecution of patients and healthcare providers for seeking or offering such services are illegal and a contravention of the Constitution. Thus, with a stroke of the pen, and the fall of the hammer, the judge not only declared abortion legal but put it in the same realms of necessities as food and water – fundamental rights.

Justice Nyakundi seemed to be speaking the very language of abortionists and abortion advocates as he argued for the protection of access to the services. And as would be expected, the response from this group was swift and celebratory. For them, it was the sweet victory of a hard-fought and protracted battle dating back to the days of the first Ghai draft of the constitution in 2002. The Ghai draft had made sweeping provisions for abortion and reproductive health matters, in much the same way as directed by the Malindi court. However, pro-life groups – especially the Church and other religious groups – have put forth an equally spirited battle to keep abortion at bay.

In both the 2005 and 2010 referenda, Kenyans in general and the Church, in particular, stood firm against the passage of the proposed Constitution, arguing that it allowed room for the legalisation of abortion. However, the pro-constitution group – the “Banana” in 2005 and the “Yes” in 2010 – strongly countered such claims, arguing that there was no such room in the proposed constitution. Even some of the drafters of the Constitution refuted the Church's claims, dismissing them as mere figments of their imagination.  Interestingly, though, when the Church factually demonstrated how a huge loophole that had been created in the proposed constitution to allow for future legalisation of abortion, the “Yes” advocates argued that such small matters could be dealt with after the promulgation of the Constitution. It was an open lie!

Over 10 years later, no efforts have been made to fulfil this political promise or to rectify this anomaly. Instead, there have been numerous attempts at exploiting this cunningly created lacuna in order to legalise abortion. Several Bills have been sponsored in both houses of Parliament, but none has succeeded. Many Civil Society groups have equally taken advantage of real and concocted statistics on teenage pregnancies to lobby the Government to permit abortion services for teenage girls. Their efforts have borne little fruit. And so they turned to the courts, with equally little success – of course until a few days ago when Justice Nyakundi delivered it to them on a silver platter.

It is interesting that, while a Kenyan court was declaring abortion a fundamental right, a landmark law on abortion had just been signed in Texas USA outlawing abortion and restricting its legal application. Governor Greg Abbott signed the law intended to prohibit abortion from as early as six weeks of pregnancy. This was after it was scientifically shown that a baby has viable heartbeats at six weeks. Abortionists, however, argued that six weeks is before some women may even know that they are pregnant.

However, according to Governor Abbott, the Bill that he signed into law was the outcome of a bipartisan state legislature. They had worked together to ensure that the life of every unborn child with a heartbeat will be saved from the ravages of abortion. “Our creator endowed us with the right to life and yet millions of children lose that right every year because of abortion,” declared Abbott at the signing ceremony. What was interesting, however, is that some rape victims or products of rape came out to defend the right to life.

The question that lingers out of the Malindi ruling is whether the courts possess any legislative responsibility. Can the courts “interpret” the Constitution or the law in a manner that fundamentally alters or goes against the expressed values and ethos of the people. Should not such interpretations be first taken to the people, either directly in a referendum, or through their representatives, before forming part of legal jurisprudence?