Kenya’s Court of Appeal in Malindi has delivered a significant pro-life ruling, overturning a 2022 lower court decision that had controversially declared abortion access a “fundamental right” under the Kenyan constitution.
The case originated in 2019 when a physician performed an abortion on a 16-year-old girl who presented with pain and bleeding. Both the doctor and the patient were charged under Kenyan law, which prohibits abortion except in narrow, specifically defined circumstances. A trial court annulled those charges in 2022 and went further — characterizing abortion access as a constitutionally protected fundamental right, a conclusion that had no basis in Kenyan law.
The appeals court corrected that error decisively. In its ruling, the court stated plainly that abortion “is not a fundamental right guaranteed by the Constitution” and that, to the contrary, the Constitution expressly prohibits it while providing only limited exceptions under specific circumstances. The court further clarified that constitutional rights do not shield individuals from criminal investigation, prosecution, or charges related to alleged abortion offenses.
The ruling is a rebuke to efforts by international advocacy groups and their allies within African judicial systems to manufacture abortion rights through creative legal interpretation rather than through democratic legislation. Kenya’s constitution says what it says, and a lower court’s willingness to invent rights not found in the text does not make those rights real.
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