Introduction
Gender equality has been a focal point of global politics for decades. With efforts to prevent policies that exacerbate gender-based discrimination, international law has increasingly recognised women’s rights as fundamental human rights. International framework, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol) have established specific protections to achieve equal access and freedoms for women.
Reproductive rights encompass rights relating to the control of reproductive activities including pregnancy, abortion, and sterilisation. While the Kenyan Constitution guarantees non-discrimination, structural barriers and deeply ingrained gender norms continue to undermine women’s reproductive autonomy. In recent years, access to safe abortion and sexual health services have increasingly been constrained by political resistance and religious reasons. This deterioration reflects a broader contradiction between constitutional guarantees and practical reality. Women seeking reproductive healthcare in Kenya therefore often encounter stigma and fear criminalisation, forcing them to resort to unsafe and illegal alternatives that further place their lives at risk.
This article argues that Kenya’s reproductive rights are not merely a healthcare crisis but a larger failure of human rights protection. By examining the limitations of the legal framework and social realities, it serves as a demonstration of how systemic inequalities erode women’s autonomy despite institutional protection.
Recent Developments
Judicial decisions on reproductive and maternity health services have been extensive in Kenya. For instance, in Josephine Oundo Ongwen, the Court recognised physical and verbal abuse against women seeking maternity services as a violation of their rights (High Court of Bungoma, 2018). Similarly, the Network for Adolescent and Youth Africa case that started in 2018, lead to the court upholding the right to reproductive health information and access (Center for Reproductive Rights, 2026). These cases clearly demonstrate how the courts enforce Kenya’s constitutional guarantees on the right to the highest attainable standard of health under Article 43 (Kenyan Constitution, 2010). However, the PAK and Mohammed case has emerged as a departure from this pattern.
In 2019, a 16-year-old girl experienced pregnancy complications and sought medical care at a clinic. Salim Mohammed, a trained physician determined that the pregnancy was lost and performed post-abortion care. Both were arrested and detained. Unfortunately, this is not a one-off story in Kenya. According to the Centre for Reproductive Rights (2026), more than 2000 women die from unsafe abortion practices in Kenya, and over 20,000 women are hospitalised from complications. With more and more girls and women seeking abortions and reproductive services, the denial of care and treatment in Kenya comes at a severe cost.
In 2022, the High Court of Kenya in Malindi affirmed that abortion care is a fundamental right under the Constitution (Center for Reproductive Rights, 2026). As such, the arrest and detention of the girl and Mohammed have been deemed unlawful. This landmark judgement of PAK and Mohammed thus recognises that the criminalisation of abortion under the Penal Code impairs women’s reproductive rights beyond denying them the right to safe abortion.
While the Kenyan Constitution legalises abortions when there is a threat to life or health under Article 26(4), Articles 158 to 160 of the Kenyan Penal Code criminalises all attempts and acts that may lead to an abortion or miscarriage (Boxer, 2024). The High Court found that the Penal Code must be read in line with the Constitution, therefore determining that Article 26(4) of the Constitution must be operationalised (Boxer, 2024).
In 2025, the National Reproductive Health Policy provision requiring “the highest attainable standard of health of both the mother and the unborn child” be considered was struck down by the High Court of Kenya citing conflicts with the Constitution (High Court at Nairobi, 2022). As the health of the unborn child would become part of the consideration, the rights of mothers would be minimised. In return, this would discourage medical personnel from performing safe and lawful care abortions (Women’s Link Worldwide, 2025).
However, in April this year, the Court of Appeal overturned the decision of PAK and Mohammed. This decision was based on the argument that the right to life starts at conception, recognised under Article 26(1) of the Constitution, and therefore, denies the existence of a constitutional right to abortion (Le Monde with AFP, 2026).
Legal Frameworks
As aforementioned, Kenya recognised reproductive rights in its 2010 Constitution for the first time under Article 43(1)(a) and the right to access abortion in certain circumstances under Article 26(4) (Kenyan Constitution, 2010). This not only served as a guarantee of equality and non-discrimination but also fostered respect for women’s bodily autonomy. However, the failure to implement progressive court decisions that interpret the Constitution in new lights and reject outdated colonial-era laws that criminalise these acts, continue to strip women of their rights. Beyond domestic failures, the enforcement of international and regional legal frameworks in Kenya remains inadequate.
The International Conference on Population and Development (ICPD) in 1994 marked the first instance where the reproductive health of women was addressed and changed the perspective on women’s reproductive capacity as a mere object of population control (Shalev, 1998). The ICPD recognises reproductive rights as basic rights, including the right to have information, the right to make decisions without coercion or discrimination, and the right to attain the highest standard of health.
In the International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 12 lays the foundation of the right to the highest attainable standard of health. This was expanded to include sexual and reproductive health in 2016 following General Comment No.22. Since then, several other international instruments have been adopted, such as Human Rights Council resolutions and the updates in the Beijing Platform for Action.
In addition, CEDAW enshrines obligations on State Parties to eliminate all forms of discrimination against women and to guarantee women the freedom to enjoy their rights on an equal basis with men. Article 16(1)(e) of CEDAW guarantees the right to decide the number of children, while Article 12 requires all measures to be taken to eliminate discrimination against women in the field of healthcare (Shalev, 1998). Despite the guarantee of bodily autonomy not being specifically mentioned in CEDAW, it remains an implicit fundamental human right.
The African Union (AU) has also adopted regional frameworks mirroring international treaties while filling gaps. The Convention on Ending Violence Against Women and Girls (CEVAWG) became the first binding treaty addressing gender-based violence (GBV). While seen as an important first step towards eliminating gender discrimination and upholding legal protections, its reliance on states’ willingness to implement the necessary measures limits its effectiveness (Tchoukou, 2026). The root causes of GBV in Africa lie in its cultural stereotypes, history of colonialism, and the marginalisation of certain communities; the state is therefore often the protectors as well as the source of violence (Tchoukou, 2026).
Prior to CEVAWG, the Maputo Protocol also played a vital role in advancing the rights of women and girls across Africa. Despite being a legally binding treaty protecting women’s rights, its effectiveness is lowered by state reservations. Kenya has made reservations to Article 14(2)(c) and Article 10(3) of the Protocol, citing inconsistencies with the Constitution, hindering women’s right to seek abortion services. The African Commission adopted a resolution in 2025, urging governments to withdraw reservations to ensure women and girls can live with dignity and freedom from discrimination (ACHPR, 2025).
Political Climate and Influence
Sexual and reproductive health policies are increasingly used as political tools. Capitalising on the controversial public debate and media attention it brings, the focus has shifted away from protecting rights to instead using them as an instrument to gain political influence (Browne and Sonji, 2025). The right to an abortion remains a highly debated topic both in the international domain and domestically. For instance, in 2020, 30 countries created the Geneva Consensus Declaration to supposedly further protect women’s reproductive health rights but in fact denies the international right to abortion (Opondo, Maina and Munyasia, 2024).
The reproductive health crisis in Kenya is marked by staggering numbers. 15 percent of adolescent girls between the ages of 15 and 19 have been pregnant, in which 34.5 percent of those girls had unsafe abortions or mistimed pregnancies (Center for Reproductive Rights, 2026). Due to the stigma and social condemnation associated with procuring abortions, women and girls are often forced to carry unwanted pregnancies to term or undergo illegal procedures (Flood et al, 2023). Additionally, the police’s unrestrained prerogative in arresting and prosecuting abortion patients leaves women in constant fear of legal repercussions.
The change in Kenya’s judicial stance on abortion also aligns with the global ripple effect of the United States’ Supreme Court overturning Roe v Wade (Hellerstein, 2023). This ruling reinforced anti-abortion movements across Africa and provided a conservative legal reference for national courts. This American influence also extends directly to federal funding mechanisms like the United States Agency for International Development’s (USAID). Because US foreign aid cannot fund reproductive health advocacy, USAID restricted its Kenyan grantees from participating in policy-making forums. This lack of institutional support, coupled with ambiguous funding directives, effectively weakened local advocacy networks and emboldened conservative opposition. Consequently, this political pressure led the Kenyan Ministry of Health to abruptly withdraw its Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion published in 2012 (Opondo, Maina and Munyasia, 2024).
Beyond foreign influence, local anti-abortion groups have also been reportedly favoured by the government and religious groups (Sawa, 20216). This has resulted in the subsequent exclusion of abortion information and activists within the Kenyan civic space. The failure of the 2014 and 2020 attempts to pass the Reproductive Health Care Bill was the result of such exclusions. The consequences of a restrictive health system significantly expose women and girls to health risks. Reproductive rights are also deeply intertwined with socioeconomic inequality in Kenya, where access to healthcare remains unevenly distributed.
Lessons from African States
While Kenya continues to struggle with the protection of reproductive rights, several African states offer important legal lessons on the legalisation of abortion services. Although cultural and political differences exist across the continent, South Africa and Benin demonstrate how amendments to its legal frameworks can improve women’s rights and offer greater protection for women’s autonomy.
Similar to Kenya, South Africa’s legal system is strongly influenced by the English common law system, a consequence of colonialism. South Africa stands out as a model for reproductive rights in Africa, having legalised it since 1996. The Choice on Termination of Pregnancy Act (CToPA) allows abortions up to 20 weeks, recognising women as independent decision-makers without requiring approval from doctors or courts (Ahmed, 2026). It further acknowledges the state’s responsibility in providing reproductive health services and the right to choose without fear (CToPA, 1996).
Benin also legalised abortion up to 12 weeks of gestation in 2021. Before 2021, abortion was only allowed in cases of rape, incest, foetal malformation, and threats to the mother’s health and life. Law No. 2021-12 now recognises socioeconomic reasons as justification for abortion, including reasons of education, financial situation, and moral distress (Ahmed, 2026). By acknowledging the impact of poverty, educational opportunities, and personal circumstances of women, the law offers a more holistic understanding of gender equality and protection.
The approach of both countries reflects the broader understanding of reproductive rights not merely as a matter of health, but linked to dignity, equality, privacy, and other socioeconomic rights. While both countries face challenges relating to access and educating about abortion care, the legal framework creates certainty for women and healthcare professionals, eliminating fear of criminalisation. These legal frameworks also reflect the growing consensus that criminalising abortion does not prevent abortions from happening, instead, it increases unsafe procedures which are detrimental to women’s health.
Conclusion
The deterioration of the judicial recognition of reproductive rights in Kenya highlights the gap between legal commitments and the realities for women. Despite ratifying multiple international frameworks that protect women and girls, the unclear domestic legal landscape and the stigma associated with abortion continue to threaten reproductive autonomy.
With abortion being the leading cause of maternal deaths, Kenya should strive to decriminalise abortion services and improve its post-abortion care. From this perspective, Kenya must seek to prioritise stopping discrimination against women and normalising abortion services without penalising women. A broadening of the constitutional right to abortion and eliminating Articles 158 to 160 of the Penal Code which criminalise abortion would mark necessary first steps. Ultimately, a women’s choice and the right to abortion are not merely a health concern, but are central to the right to privacy, freedom from gender discrimination, and the right to dignity. Meaningful reform requires political commitment and the removal of punitive measures that disproportionately affect women; without, reproductive rights cannot be materialised effectively.
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