20-04-2022 by redazione
A ruling by the Malindi High Court could change the fate of young Kenyan women who are victims of rape or premature relationships and decide to have an abortion.
As is well known, in Kenya the constitution not only prohibits abortion but considers it a criminal offense for which both the mother and the doctor or the person who takes care of it personally are arrested and risk a long imprisonment.
Just as there is an international outcry for the right to life, without (as has become the habit of these years devoid of sense and memory) distinguishing between women or young girls who have been victims of abuse or a subculture of which they are certainly not the culprits, Kenya's High Court recently affirmed that "women's access to safe abortion services is a human right" and directed parliament to enact legislation in this regard.
Malindi High Court Judge Reuben Nyakundi issued the ruling late last month in a case involving a 16-year-old girl who had an abortion and the health worker who treated her. The two, who were arrested in November 2020 and charged with premeditating the abortion, had petitioned the court to have their charges dropped.
The ruling comes in the midst of an intense contestation over sexual and reproductive health (SRH) in Kenya, currently focused on the Ministry of Health's Reproductive Health Policy 2022-2032, which makes no provision for abortion. Not only that, in recent weeks we are witnessing, and also discussing in Kenya, the affair of the rapes perpetrated by the Russian military in Ukraine and how some countries where abortion is not yet legal, will not allow refugee victims even those who are no longer young, to have abortions.
In recent days, among other things, the United Nations Population Fund (UNFPA) released its 2022 State of the World Population report, which indicated that nearly half of global pregnancies are unwanted and that failure to address this is a "public health emergency."
Kenya's 2010 Constitution states that abortion is prohibited "unless, in the opinion of a qualified health professional, there is a need for emergency treatment or the life or health of the mother is in danger, or if permitted by any other written law."
The Sexual Offenses Act, if concluded, would also allow women and girls who became pregnant as a result of rape to have an abortion. However, an outdated 1963 criminal code outlaws all forms of abortion that contradict the constitution.
In recent years, conservatives have rallied against any legalization of abortion for any reason in Kenya, and the issue is increasingly becoming a populist rallying point ahead of national elections in August.
It has thus become even more difficult for women and girls to terminate pregnancies, even within the narrow confines allowed.
In the case of Malindi, a 16-year-old minor and the pediatrician who treated her were arrested.
According to the doctor, the girl had presented herself with a miscarriage in progress and he had only practiced a manual evacuation to no avail.
The police had taken the young girl from the hospital where she was admitted, confiscated her medical records and forced her to have a medical examination. They then locked her up in a juvenile detention facility for more than a month before her parents were able to post bail. Kenyan authorities also notified her school of the criminal case against her, with the intention of taking her away from her parents and placing her in an institution for children in need. Meanwhile, the doctor had also been arrested, along with two caregivers at the health facility.
In the meantime, Mohammed was imprisoned for a week and two cleaners of the health facility were also arrested.
Human rights groups then pursued a petition, clashing for more than a year with those for the right to life.
Now the Malindi High Court judge has ruled that forcing someone to carry an unwanted pregnancy to term, or forcing them to seek an unsafe abortion, is a violation of their human rights, including their rights to privacy and bodily autonomy.
"The inaccessibility of quality abortion care risks violating a number of women's and girls' human rights, including the right to life itself," the ruling reads, "the right to the highest attainable standard of physical and mental health; the right to benefit from scientific progress and its implementation; the right to make free and responsible decisions about the number, spacing and timing of children; and the right to be free from torture, cruel, inhuman and degrading treatment and punishment.
The game has only begun, moreover at a sensitive time when there is very little in the way of politics, but it could ride on the coattails of voters. Will it be more those related to women's rights or those who are firm on the positions of a country that formally still does not even recognize the rights of LGTBQ+ communities?
A definitive ruling that can create an historical precedent.
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