Moral Limitations and the Right to Reproduce in the Kenyan Law: Is Kenya Ready for Legalization of Abortion?

Legal access to safe abortion is fundamental for enjoying the rights guaranteed in the Constitution of Kenya, including the rights to life and health. The UN Committee on Economic, Social, and Cultural Rights (CESCR) recognizes reproductive rights as an integral part of the right to health and identifies the denial of abortion as a violation of the right to life. However, the Human Rights Committee’s comment on the right to life acknowledges that states, in exercising their sovereignty, can regulate the voluntary termination of pregnancy. Article 26 of the Constitution of Kenya guarantees the right to life. Sub-article 2 states that life begins at conception and outlaws abortion in sub-article 4. Nevertheless, sub-article 4 of the same article contains exceptions and permits abortion under specific conditions, such as when the life and health of the mother, which encompasses physical, psychological, mental, and emotional health, are at risk. Article 26(4) also makes provision to introduce additional circumstances for abortion through legislation. There have been progressive policy measures taken to provide access to safe reproductive health services, including efforts to ensure safe abortion in Kenya. However, attempts at legislation on reproductive rights have been problematic, particularly where provisions include abortion. The 2019 Reproductive Health Bill is the latest of several attempts to address the right to reproductive health care. The objectives of this article are to (1) examine the attempts that have been made to legalize abortion; (2) highlight efforts that have been made to address the right to abortion; and (3) discuss the morality and ethics of abortion in Kenya.