Interpreting article 26(4) of the Constitution of Kenya 2010 : implications for abortion law, policy and practice

Abstract

The dissertation is about interpreting article 26(4) of the Constitution of Kenya 2010 that provides grounds for access to abortion. The dissertation highlights existing gaps in knowledge and new developments that warrant reflection and reforms. It begins by reviewing the historical development of abortion laws and policies, and explores the discourse around women’s position in the society from the pre-colonial, through to the independent Kenya. The influence of religion and culture on abortion is also discussed. The dissertation further explores Kenya's international obligations on health with a focus on access to abortion services by women. Kenya already enacted the Treaty Making and Ratification Act, giving effects to article 2(6) of the Constitution that makes international laws particularly those relating to reproductive health part of her domestic laws. The study makes a comparative analysis of abortion jurisprudence; how abortion has been legislated and adjudicated in other jurisdictions that have almost similar architecture as Kenya. The study finds that article 26(4) of the Kenya Constitution, has an expansive interpretation that can adequately provide for women's access to abortion. Nonetheless, a holistic interpretation which incorporate other articles of the Constitution together with international human rights law remains critical. Furthermore, the study finds it imperative for Kenya to enact a legislation that will operationalise article 26(4), which will expand grounds to access abortion, and also to reinstate Standards and Guidelines including Training Curriculum for health care service providers. Finally, the study finds that the continued existence of a 1970 Penal Code is a limiting factor for women wishing to access abortion. It also constitutes a hindrance to health care professionals with competencies to provide abortion service due to its criminalising effect.