Imagine being jailed for up to 14 years for trying to end your pregnancy because a morally driven political system deems this to be a crime.

The Kenyan penal code that criminalises abortion and same sex relations does so under sensationally subjective sections that read “offenses against morality”. Whose morality? The epicenter of the implementation and operationalization of these laws are (indigent) women and girls.

Following the victories in Latin America under the green wave movement, I have seen and interacted with the stories of Everlyn Beatriz Hernandez, Sara Rogel and Teodora Vasquez. Women affected by harsh criminal systems blocking their access to reproductive health.

These stories are reminiscent of countless similar cases in Kenya. The only difference is that those cases are highlighted in various media in their respective countries and beyond. On the other hand, the Kenyan cases resemble ghost stories. We know they exist but cannot identify them or the women and girls who form the real-life subjects therein. They only exist in the memory of their loved ones, case files at KELIN (and other legal advocacy organisations) – and in sensationalized Twitter reports by the police.

The forgotten women and girls

At KELIN we conducted an exploratory study around the criminalization of abortion in Kenya. Our constitution states that “abortion is not permitted unless in the opinion of a trained health professional there is need for emergency treatment, the life or health of the mother is in danger or if any other written law”. That means we don’t have a legal right to abortion, but rather it is only permitted in certain circumstances.

Attempting to procure an abortion in Kenya, or causing your own miscarriage comes with potential legal penalties ranging from fines, imprisonment of 7-14 years, or probation.

The latter prevails where there is a conflation of abortion related charges of infanticide, killing of an unborn, and even concealing birth. In addition, supporting or providing abortion can result in a three-year prison sentence. These trends were documented across the five target counties in the study – Nairobi, Mombasa, Nakuru, Kisumu and Kilifi.

Through the study we have found compelling evidence to confirm the assertion that indigent women and girls (those from lower income brackets, alongside intersecting factors of low or no educational background) form the majority of cases that make it to court and are even imprisoned for abortion. This is despite the abortions falling within the legal circumstances that allow access.

Most medical providers exasperated at the continued interference and harassment from law enforcement have seemingly (and allegedly) found that under the table tactics tend to reduce the threat of prosecution. In comparison to the indigent women – at least they have some bargaining power. 

Another key finding was made regarding the lack of uniformity in the judgements. This could be read to mean that some magistrates and judges are aware of the allowances within the law and its operationalization via the Health Act of 2017 and are dismissing these cases whilst others do not and are still being guided by the Penal Code provisions. This leads to somewhat of a lottery for those facing the courts without any definite prosecutorial trends or judicial interpretation as the magistrate courts are not courts of record.

What can be done?

We must remember, acknowledge, see and know these forgotten faces. Thereafter, these cases must form the crux and foundation of advocacy and awareness campaigns to not only operationalize the existing law but to decriminalize this life saving, health affirming medical procedure. 

For KELIN, this will continue to form a significant part of our work on sexual and reproductive health and rights now and in the coming year. 

By Linda Wanjiru Kroeger – feminist and human rights lawyer working as Program Manager, SRHR at KELIN (Kenya Legal and Ethical Issues Network on HIV and AIDS). KELIN is a SAAF grantee partner.

This post was originally published on saafund.org.

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