PAK & another v Attorney General & 3 others
PAK & another v Attorney General & 3 others (Constitutional Petition E009 of 2020)  KEHC 262 (KLR) (24 March 2022) (Judgment)
Lacuna in sections of the Penal Code that criminalised abortion in the face of article 26(4) of the Constitution illegality of abortion.
At the material time, the petitioner, a form two student, became pregnant after sexual intercourse with a fellow student. Upon experiencing complications with her pregnancy including severe pain and bleeding, she went to Chamalo Medical Clinic in Ganze Location for treatment. At the Clinic PAK received emergency care from the 2nd petitioner who upon examining her concluded that she had suffered a spontaneous abortion. The 2nd petitioner performed a successful manual vacuum evacuation, after which the petitioner was in fair general condition.
Plain-clothed police officers stormed Chamalo Medical Clinic without notice or permission. They demanded to be given the petitioners treatment records and subsequently confiscated the same from the 2nd petitioner. The 1st and 2nd petitioners together with two female employees at Chamalo Medical Centre both working as cleaners, were arrested and taken to Ganze Police Patrol Base.
The 1st petitioner alleged that she was forced to undergo a medical examination at Kilifi County Hospital where a medical examination form was filled out. The 1st petitioner was later charged with the offence of Procuring abortion contrary to section 159 of the Penal Code. The 2nd Petitioner was charged in Kilifi in criminal case number 395 of 2019 with procuring abortion contrary to section 158 of the Penal Code. The 2nd petitioner was in the alternative charged with supplying drugs to procure abortion contrary to section 160 of the Penal Code.
Aggrieved the petitioners filed the instant proceedings to quash the criminal trial at the Kilifi Law Courts. The petitioners contended that article 26(4) of the Constitution provided that there were certain situations when abortion was permitted. The petitioners further contended that the actions of the police in detaining the 1st petitioner and subjecting her to a forced medical examination violated her human rights to life, privacy, right to the highest attainable standard of physical and mental health, freedom from torture, inhuman and degrading treatment and punishment. The petitioners also sought for the court to declare sections 154, 159 and 160 of the Penal Code that criminalised abortion unconstitutional.
The respondents argued that the Constitution declared abortion illegal save for instances when in the opinion of a qualified health practitioner, the life of the mother was in danger or that there was need for emergency treatment or where permitted by any other written law. That it was therefore preposterous to argue that article 26(4) repealed sections 158, 159 and 160 of the Penal Code.
- Whether sections 154, 159 and 160 of the Penal Code that criminalised abortion were unconstitutional.
- Whether the lack of access to safe abortion services was a violation of the following human rights:
- right to privacy
- right to life
- right to the highest attainable standard of physical and mental health
- freedom from torture, inhuman and degrading treatment and punishment
- Whether sections 154, 159 and 160 of the Penal Code that criminalised abortion were inconsistent with article 26(4) of the Constitution that provided that abortion was not permitted unless, in the opinion of a trained health professional, there was need for emergency treatment, or the life or health of the mother was in danger.
- Whether in enforcing the provisions of the Penal Code that criminalised abortion without complying of article 26(4) of the Constitution which provided that abortion was not permitted unless, in the opinion of a trained health professional, there was need for emergency treatment, or the life or health of the mother was in danger was a threat to fundamental justice.
- Whether there was a lacuna in sections 154, 159 and 160 of the Penal Code that criminalised abortion when considered in light of article 26(4) of the Constitution that provided that abortion was not permitted unless, in the opinion of a trained health professional, there was need for emergency treatment, or the life or health of the mother was in danger.
- What constituted a threat to the womans life as an allowable reason for abortion under article 26(4) of the Constitution?
- Whether the proceedings at the trial court in which the 1st petitioner and her doctor were prosecuted under sections 154, 159 and 160 of the Penal Code that criminalised abortion should be quashed.
- Whether a medical doctor or a trained health professional licensed to practice medicine in Kenya could be prosecuted under sections 154, 159 and 160 of the Penal Code that criminalised abortion.
- Whether the petitioner who had just undergone a medical procedure was medically fit to be detained.
- Whether the actions of the police in arresting, detaining, interrogating and obtaining a confession statement from petitioner, a minor, violated the right not to self-incriminate and other rights of arrested persons under article 49 of the Constitution.
- Whether the forced medical examination conducted on the petitioner, a minor, to investigate whether she had undergone an abortion violated the petitioners freedom form torture, cruel and inhuman and degrading treatment, freedom and security of the person, rights to privacy, human dignity and right to life within the bounds of article 26(4) of the Constitution that permitted abortion in the case of medical emergencies or where the mothers life was in danger.
- What legal considerations did courts consider in issuing the prerogative writs of mandamus, certiorari and prohibition?
- What legal considerations did courts make in issuing damages against the state in constitutional petitions (constitutional torts)?
Relevant provisions of the law
Relevant Provisions of the Law
Constitution of Kenya, 2010
26. Right to life.
(1) Every person has the right to life.
(2) The life of a person begins at conception.
(3) A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.
(4) Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.
Penal Code, Cap 63
Sections 154, 159 and 160
154. Woman living on earnings of prostitution or aiding, etc., prostitution
Every woman who knowingly lives wholly or in part on the earnings of prostitution, or who is proved to have, for the purpose of gain, exercised control, direction or influence over the movements of a prostitute in such a manner as to show that she is aiding, abetting or compelling her prostitution with any person, or generally, is guilty of a felony.
159. The like by woman with child
Any woman who, being with child, with intent to procure her own miscarriage, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a felony and is liable to imprisonment for seven years.
160. Supplying drugs or instruments to procure abortion
Any person who unlawfully supplies to or procures for any person any thing whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman whether she is or is not with child, is guilty of a felony and is liable to imprisonment for three years.
- Where formal legal channels to abortion were lacking or inaccessible the victims (women) terminated their pregnancies by unscrupulous devices and substances. In abortion cases the pregnant women tended to avoid such medical examination on the ground that it violated the right to privacy or the right to human dignity as enshrined under articles 28 and 39 of the Constitution. There were no guidelines relating to privacy and on how to reach a trained health professional as stipulated in article 26(4) of the Constitution. The protection of unborn life was an important motive for restricting abortion, and the Kenyan Constitution at article 26(4) equated a pregnant womans life with continued fetal development thus making it as the single greatest impendent to medical abortion services.
- Although abortion was illegal in Kenya, the Constitution and other international instruments like CEDAW provided a legal framework to reaffirm reproductive rights of women. The Special Rapporteur on the right to the enjoyment of the highest attainable standard health specifically on womens right to sexual and reproductive health in international law stated womens rights to equality and to the highest attainable standards of health, to enjoy the benefits of scientific progress and to health-care services, including those related to reproductive and sexual health, were enshrined in international and regional human rights instruments, reaffirmed in consensus agreements, including the Programme of Action of the International Conference on Population and Development and the Beijing Platform for Action adopted at the Fourth World Conference on Women and the outcome documents of the review and appraisal conferences, and recognized by international, regional and national mechanisms and jurisprudence. The International Conference on Population and Development recognized womens rights to reproductive and sexual health as being key to womens health.
- Discrimination against women in the area of health and safety and denial of their right to control their own bodies severely violated their human dignity, which, along with equality, was recognized in the Universal Declaration of Human Rights as the foundation of freedom, justice and peace in the world.
- States were obliged to secure womens rights to the highest attainable standard of health and safety, including their underlying determinants, and womens equal access to health-care services, including those related to family planning, as well as their rights to privacy, information and bodily integrity. The obligation to respect, protect and fulfil womens right to equal access to health-care services and to eliminate all forms of discrimination against women with regard to their health and safety was violated by neglecting womens health needs, failing to make gender-sensitive health interventions, depriving women of autonomous decision-making capacity and criminalizing or denying them access to health services that only women require.
- Failure to protect womens rights to health and safety could amount to cruel, inhuman or degrading treatment or punishment or torture, or even a violation of their right to life. Womens bodies were instrumentalized for cultural, political and economic purposes rooted in patriarchal traditions. Instrumentalization occurred within and beyond the health sector and was deeply embedded in multiple forms of social and political control over women. It aimed at perpetuating taboos and stigmas concerning womens bodies and their traditional roles in society, especially in relation to their sexuality and to reproduction. Women faced continuous challenges in accessing health care and in maintaining autonomous control in decision-making about their own bodies. Understanding and eliminating the instrumentalization of womens bodies, which was based on harmful cultural norms and stereotypes, and its detrimental impact on womens health, was critical for change to occur.
- The legality and application of international law to our local circumstances was pursuant to article 2(5) of the Constitution. Access to safe abortion services was a human right. Under international human rights law, everyone had a right to life, a right to health, and a right to be free from violence, discrimination, and torture or cruel, inhuman and degrading treatment. Forcing someone to carry an unwanted pregnancy to term, or forcing them to seek out an unsafe abortion, was a violation of their human rights, including the rights to privacy and bodily autonomy.
- Those who had no choice but to resort to unsafe abortions also risked prosecution and punishment, including imprisonment, and could face cruel, inhuman and degrading treatment and discrimination in, and exclusion from, vital post-abortion health care. That endangered the life of the mother/maiden due to the inherent fear of prosecution by health professionals who assisted the mother in carrying out safe abortion. That put the life of the mother in danger and ipso facto violated the right to life.
- Access to abortion was fundamentally linked to protecting and upholding the human rights of women, girls and others who could become pregnant, and thus for achieving social and gender justice. Lack of access to safe, affordable, timely and respectful abortion care, and the stigma associated with abortion, posed risks to womens physical and mental well-being throughout the life-course.
- Inaccessibility of quality abortion care risked violating a range of human rights of women and girls, including the right to life; the right to the highest attainable standard of physical and mental health; the right to benefit from scientific progress and its realization; the right to decide freely and responsibly on the number, spacing and timing of children; and the right to be free from torture, cruel, inhuman and degrading treatment and punishment.
- The duty to protect life included the fact that States should take appropriate measures to address the general conditions in society that could prevent individuals from enjoying their right to life with dignity. That obligation included ensuring access to essential goods and services, including health care, developing campaigns for raising awareness of gender-based violence and harmful practices, and improving access to medical examinations and treatments designed to reduce maternal and infant mortality. A blanket ban on abortion and or prosecution of medical personnel exposed both the mother and foetus to mortality and therefore flew against state obligations in preventing/reducing maternal and infant mortality rates and ipso facto violated the right to life.
- Social and other determinants of health had to be addressed in order for women to be able to seek and access the maternal health services they needed. States should develop strategic plans and campaigns for improving access to treatments designed to reduce maternal mortality, as part of advancing the enjoyment of the right to life. Continued restrictive abortion laws inhibited quality improvements that might be possible to protect the women with unintended pregnancies. The lack of policies and guidelines for the provision of safe and legal abortion care continued to impede service delivery which exacerbated the risk of women to procure unsafe abortion services thereby endangering women lives and their full enjoyment of the right to life considering that the World Health Organisation had identified unsafe abortion as a leading but preventable cause of maternal deaths and morbidities and which could lead to physical and mental health complications and social and financial burdens for women, communities and health systems.
- Restrictive abortion laws coupled with lack of effective laws giving effect to article 26(4) of the Constitution, exposed women and girls to mental and physical health risks that were often associated with unsafe abortion and stigmatized women and girls who sought abortion thereby violating their right to life and the right to highest attainable standards of health.
- Privacy was a fundamental human right, enshrined in numerous international and regional human rights instruments. That included article 12 of the Universal Declaration of Human Rights, article 17 of the International Covenant on Civil and Political Rights, article 14 of the United Nations Convention on Migrant Workers, article 16 of the UN Convention of the Protection of the Child, article 10 of the African Charter on the Rights and Welfare of the Child, article 11 of the American Convention on Human Rights, article 4 of the African Union Principles on Freedom of Expression, article 5 of the American Declaration of the Rights and Duties of Man, article 21 of the Arab Charter on Human Rights, and article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
- The right to privacy was central to the protection of human dignity and forms the basis of any democratic society. It also supported and reinforced other rights, such as freedom of expression, information and association. The right to privacy embodied the presumption that individuals should have an area of autonomous development, interaction and liberty, a private sphere with or without interaction with others, free from arbitrary State intervention and from excessive unsolicited intervention by other uninvited individuals. The right to privacy could only be limited when there was extreme need for the same. But even under such circumstances, the Constitution minimized the extent of limitation by providing safeguards against the limitation. Activities that restricted the right to privacy, such as surveillance and censorship, could only be justified when they were prescribed by law, were necessary to achieve a legitimate aim, and proportionate to the aim pursued.
- The right to privacy was an integral part of womens rights and especially in the promotion and protecting of womens rights to equality, to dignity, autonomy, information and bodily integrity and respect for private life and the highest attainable standard of health, including sexual and reproductive health, without discrimination; as well as the right to freedom from torture and cruel, inhuman and degrading treatment. Although the Kenyan Constitution did not explicitly provide for the right such as the right to autonomy, courts had interpreted the Constitution to protect those rights, specifically in the areas of marriage, procreation, abortion, private consensual homosexual activity, and medical treatment.
- Protecting access to abortion effectuated vital constitutional values, including dignity, autonomy, equality, and bodily integrity. The ability of women to participate equally in the economic and social life of the Nation had been facilitated by their ability to control their reproductive lives. At the heart of liberty was the right to define ones concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about those matters could not define the attributes of personhood were they formed under compulsion of the State.
- The right to terminate a pregnancy was a fundamental right and the decision as to whether to terminate a pregnancy was fundamental to a womans personal liberty. The court recognized the great detriment that the State would impose upon the pregnant woman by denying that choice, including forcing her to endure health risks associated with pregnancy and the costs of bringing a child into a family under circumstances that completely ignored the viability of the foetus or imminent danger of the mother.
- In the making of the Constitution, Kenya had a limited scope for life begins at conception. Nevertheless it should be recognized that every society was unique and it should therefore approached the issue by its own ethos, culture, history and as a democratic state its citizens were the owners of the Constitution. The Constitution breathed life to a country in the consolidation of the society around common values and principles of governance.
- The Committee on Economic, Social and Cultural Rights (CESCR) and the Committee on the Elimination of Discrimination against Women (CEDAW) had indicated that womens right to health includes their sexual and reproductive health and that included the right to privacy and family as anchored under article 17 of the ICCPR and entailed access to available reproductive health care technology, including safe and acceptable contraceptive methods and available spaces for safe abortions.
- The concept underlying the recognized right to privacy in article 31 of the Constitution and as buttressed by international conventions was that there were areas of citizen's lives that were outside an intrusive sphere that the neither the government nor the public should concern itself with. There existed a direct link between a womans decision to terminate a pregnancy with the constitutional right to privacy since a matter concerning abortion should be left primarily to the woman who in any circumstance instructive of spirit in article 26(4) of the Constitution bore the greatest responsibility should she decide to keep or terminate the pregnancy. The woman should have the choice and ultimate decision carefully explored with the trained medical provider as to whether to terminate the pregnancy or continue with the same. That was the ultimate exercise and enjoyment of the freedom of choice and the right to privacy.
- Parliament should as the legislative body fast track legislation that provided for access to safe abortion for women in Kenya and to actualize the provisions of Article 26(4) of the Constitution. Heath officials and civil society organization had emphasized the countrys law did not prevent women from having abortions but instead, severely undermined the quality of care women received or forced them to resort to unsafe and clandestine means to terminate unwanted pregnancies. Other legislation existed to effectuate other provisions of the Constitution including the Access to Information Act 2016, meant to actualize article 35 of the Constitution.
- The Reproductive Healthcare Bill, 2019 was before Parliament. The Bill as gleaned, provided more substantial and comprehensive provisions on sexual and reproductive health. The proposed law was meant to actualize the Constitutional guarantee that every person had the right to the highest attainable standard of health, including the right to reproductive health. The Bill provided an in-depth framework for a range of reproductive health services, including; access to family planning and right to reproductive health information; conditions for and limitations of assisted reproduction, including the parties to surrogate parenthood agreements and validity of those agreements, artificial insemination for surrogate parenthood, multiple pregnancies and compensation; safe motherhood, including antenatal care, delivery services and post-partum care; sterilization; termination of pregnancy; duty to refer; consent; post-abortion care; and data collection; confidentiality; reproductive health of adolescents, provision of information and consent (including mentorship, spiritual and moral guidance, counselling on sexual abstinence, consequences of unsafe abortion, drug abuse and training in life skills); the obligation on the state to provide adolescents with correct information, guidance and counselling on reproductive health; and information and treatment of HIV and AIDS; and female genital mutilation. The bill was timely.
- In criminalizing abortion in the Penal Code, that had not been a constant feature in the adjudication of processing evidence bound to be used by the Director of Public Prosecution under article 157(6), (7) and (8) of the Constitution. The questionable sections were designed to allay the concerns of society with regard to protection and preservation of the right to life prior to the enactment of the Constitution 2010. It was imperative for new act to be put in place by the legislature stipulating conditions which if met would enable a court of law to declare procuring an abortion a criminal offence. The statement of prohibited conduct should be in clear and unambiguous language absorbed into the text of article 26(4) of the Constitution. The scope of the impugned sections were so broad and would do well if the wording of it was subject to fundamental rights such as woman rights to health, life, dignity and security.
- Security of the person had to include the right of access to medical treatment for a condition representing a danger to life or health without fear of criminal charges. Reproductive rights were understood to be performed in privacy. Sexual activity occurred in the innermost of the privacy walls. Yet the right to privacy was not absolute but could be protected only against unjust interference.
- The1st petitioner presented herself to the second petitioner who performed a surgical operation which may have been informed by the diagnosis of the 1st petitioner. The 2nd petitioner was a qualified health care provider duly licensed by the relevant body to practice medicine in Kenya. He fell within the textual meaning of article 26(4) of the Constitution referenced as unless in the opinion of a trained health professional.
- The 1st petitioner had exercised her rights of access to medical treatment that may have been to prevent imminent danger to her life or health. The court would be sending a signal to the legislature that if the statutory provisions under the Penal Code were not amended it may as well be considered a threat or infringement to the rights of the pregnant women as to the enjoyment of their reproductive rights. States had an important and legitimate interests to protect the life of the unborn child and that of the mother where compelling circumstances permitted termination of the pregnancy.
- Who had the final say to establish the medical fact and viability of the foetus and the mother as a necessary congruent to preserve their right to life was in all aspects a decision duly made by the medical doctor or trained health professional. The court asked the legislature to draft a law which recognized right to abortion in consonance with article 26(4) of the Constitution for protection of everyones right to life save in the exception provided by law.
- In making a determination on the unconstitutionality of the law there were principles that need to be considered. Ideally, the provisions should support each other. The interpretation of the law was guided by article 20 of the Constitution. The Constitution gave guidance on how it was to be interpreted. Article 259 thereof required that the court, in considering the constitutionality of any issue before it, interprets the Constitution in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights and that contributed to good governance. Article 159(2)(e) of the Constitution required the court, in exercising judicial authority, to do so in a manner that protected and promoted the purpose and principles of the Constitution. In interpreting the Constitution, the court was enjoined to give it a liberal purposive interpretation.
- The court was required, in interpreting the Constitution, to be guided by the principle that the provisions of the Constitution had to be read as an integrated whole, without any one particular provision destroying the other but each sustaining the other:
- Article 26(4) of the Constitution provided abortion was not permitted unless, in the opinion of a trained health professional, there was need for emergency treatment, or the life or health of the mother was in danger, or if permitted by any other written law. The Penal Code provisions used by the state to indict women against criminal offences related to procurement of abortion operated in the following sphere:
- They created an indictable offence for any person to use any means with the intent to procure the miscarriage of a female person.
- They established a parallel criminal offence when a pregnant woman used or permitted any means to be used with the intent to procure her own miscarriage.
- The means referred in the sections made reference to the administration of a drug or whatever means, or device manipulated to procure an abortion.
- Sections 158, 159 and 160 of the Penal Code did not provide for an exception in the context of article 26(4) of the Constitution which stated that the foetus interests were not to be protected where the life and health of the mother was under imminent danger. In light of the constitutional provision, the Penal Code which criminalized abortion ought to be read in consonance with the fundamental rights and freedoms enshrined in the Constitution.
- To criminalize abortion under the Penal Code without a statutory and administrative framework on how the victims were to access therapeutic abortion as provided for in the exception under article 26(4) was an impairment to the enjoyment to reproductive rights accorded to the women. Those cluster of rights included, right to life, right to privacy, freedom of choice, dignity, security and conscience.
- The rights of a woman to control her reproductive process and rights following the promulgation of the Constitution, 2010, were not extinguished as article 26(4) provided for a saving clause to safeguard her human rights. Abortion performed by a licensed medical practitioner with the consent of the pregnant woman was not punishable, if done in order to prevent danger to the life or health of the mother and if that danger could not be avoided by other means.
- It was in the Constitution that the right to life began at conception. In the case of an emergency upon certification by a medical doctor/practitioner abortion was permitted to save a womans life or health. The paradox was that access to therapeutic abortion as provided for in the Constitution was typically impossible, more specifically to women in the rural setup. There may even be a struggle in the mind of the victims on how to seek medical treatment, arising out of a progressive miscarriage or an act to terminate unwarranted pregnancy. As part of addressing the challenges posed by the Penal Code sanctions, it was for the state to guarantee women equal and non-discriminatory access to health care with standard procedures or protocols for the implementation of article 26(4) of the Constitution.
- There was evidence that access to abortion services before an authorized medical practitioner came with the risk of criminal sanctions under sections 158, 159 and 160 of the Penal Code. What was also intriguing was lack of the identifiable central pillars applied on the certification by the medical provider to safeguard women's reproductive rights in decision making. The suitability test imposed by article 26(4) of the Constitution without the legislative scheme could pose a challenge to guarantee the effect of protection of the life of the fetus.
- What had to be determined was whether preservation of the fetus signaled the manifestation of the need for emergency treatment or whether the life of the mother was in danger. It was a decision not subjected to checks and balances within the hierarchy of professional health providers. There was merit in the idea that the primary objective of the Penal Code sanctions on abortions without transformative legislative/policy framework could result in arbitrary, unfair and unreasonable considerations in initiating a prosecution by the Director of Public Prosecutions.
- The whole objects, purpose and true intention or effect of the impugned provisions was that they were directed at complete limitation of access to the recognized trained medical professional who had the constitutional duty to act in good faith for purposes of preserving the life of the pregnant woman. The constitution had clearly set out the threshold within which procurement of an abortion was permissible. The main parameters that set the threshold were:
- the opinion of a trained health professional.
- Need for emergency treatment.
- If the life of the mother was in danger.
- For the abortion to be considered unlawful it had to breach the threshold set out in the Constitution. The Health Act provided the definition of a health professional and emergency treatment under section 6. The section referred to one with a formal medical training at the proficiency level of a medical officer, a nurse, midwife or a clinical officer who had been educated and trained to proficiency in the skills needed to manage pregnancy-related complications in women, and who had a valid license from the recognized regulatory authorities to carry out that procedure.
- The 2nd petitioner provided proof of his qualifications as a health professional. The respondents failed to controvert that the 2nd petitioner was a qualified health professional as stipulated in article 26(4) of the Constitution. The unlawful actions or omissions contemplated in the impugned penal provisions had to be read harmoniously whenever reasonable, with separate parts being interpreted with their broader statutory context.
- The court had no power to declare a law unconstitutional unless probative evidence was provided that it conflicted with some provisions of the Constitution. The provisions applied the phrase unlawfully to describe the offences in question either in procuring or administering some substance to actualize the expected outcome of termination of the pregnancy. Any act by a pregnant woman to procure an abortion triggered a criminal liability. The danger which existed of the infringement to the fundamental right to justice of the petitioners was that it gave a sweeping effect to the police to arrest and arraign any such victim on mere suspicion she had intended to breach section 158 and 159 of the Penal Code.
- The court could not properly declare certain acts of other organs of government as unconstitutional simply because they brought about results which were unjustified. The rationale of the right in article 26(4) of the Constitution was obvious, given the fact that the police, the Director of Public Prosecutions or any other criminal justice actor would not be able to determine the unlawful acts of omission stipulated in the Penal Code on procuring abortion without reference to these provisions of the Constitution.
- The sanctity of life was protected. That was an essential element to the right of women to make their own decision, un-coerced by the state or others so long as they brought themselves within the provisions of article 26(4) of the Constitution. It could be preferable to shift the emphasis on morality to the rights of the mother.
- Judicial review was a discretionary remedy employed by the High Court to quash quasi-judicial and judicial decisions of inferior tribunals and courts in cases in which a decision made appeared to be an error of law on the face of the record. The case in point where the evidence used to make the decision was often inconclusive or the tenor of it manifested some error amounting to a jurisdictional defect.
- The respondents never presented good evidence that the allegations of abortion did not involve a life threatening emergency that called for necessary treatment and the 2nd petitioner obligated under the law did not make the decision in good faith.
- A medical doctor or trained medical professional could claim his right to freedom of action taken in dispensing treatment to a patient on consultation. By virtue of his or her profession he/she had the right to practice according to the norms valid for that profession as stipulated in the various statutes. In emergency cases he had the freedom to perform or not perform an abortion and to choose the way in which to perform it. Whether abortion was carried out other than by the decisive element of good reason by the trained health professional was moot.
- Article 26(4) of the Constitution recognized that there were reproductive rights constitutionally protected as fundamental rights. Further, denying any pregnant woman whose decision to terminate the pregnancy was anchored in the professional opinion of a medical doctor was in itself an infringement to her legal rights. The corpus of the respondents response to the specific facts of the case was aimed at forcing her to continue an unwanted pregnancy notwithstanding that it could have threatened her right to life or health.
- The right to life exception in article 26(4)of the Constitution should be understood to encompass emotional, mental, psychological and physical health grounds and pregnancies arising from sexual violence related acts. The police were obligated to respect, protect and promote implicit rights to the protection the womens rights as maintained in article 26(4) of the Constitution.
- The police regained access to the medical facility in which the 1st petitioner was recuperating after the medical procedure performed by the 2nd petitioner. It was on that basis that a recommendation to charge was made to the Director of Public Prosecutions. One could not ignore the facets of violation of the right to human dignity, liberty, privacy and conscience of the 1st petitioner.
- The 1st petitioner was a child aged 17 years old. There was prima facie evidence that established an inescapable conclusion that her fundamental freedoms in the bill of rights were violated. Article 26(4) of the Constitution was very short and simple, it could not provide details on the decision making process of the medical practitioner and ethical considerations but it lay down the threshold on the exception to the rule on permissible abortion.
- Articles 156, 159 and 160 of the Constitution were clear on the unlawfulness of conducting an abortion. They had set out the threshold for the procurement of an abortion to be considered unlawful. The prosecution did not at any juncture answer the question as to whether the abortion was conducted outside the threshold set out in article 26(4) of the Constitution. In order for the charges to stand there had to be prima facie evidence that the alleged abortion was conducted outside article 26(4) of the Constitution.
- The prosecution failed to meet the criteria set out to prove that the alleged abortion was conducted outside the provisions of article 26(4) of the Constitution. They did not establish that the health professional was unqualified to conduct the procedure or that the life of the mother was not in danger and in need of emergency treatment that would prevent the worsening of her medical condition.
- The charges and proceedings were unfounded and should be quashed as there was no prima facie evidence that the abortion was conducted outside the threshold of article 26(4) of the Constitution. Via a prerogative writ of certiorari, the proceedings in Criminal cases Nos. 395, 396 of 2019 and Childrens Case No. 72 of 2019 were quashed.
- If a person sought redress from the High Court on a matter which involved a reference to the Constitution, the person was to set out their complaints with a reasonable degree of precision. They had to set out the provisions said to be infringed, and the manner in which they were alleged to be infringed.
- The petitioner had undergone a medical procedure before the arrest. It was upon the respondents to prove that she was given medical care when in detention by way of producing medical treatment notes or records. A failure to do so would mean that the petitioner had her rights to reproductive healthcare were infringed by agents of the respondents.
- Upon her arrest she was held in custody without access to medical care despite her condition. The respondents had failed to prove that they provided her with the access to health care and especially reproductive health care. That was a gross violation of article 43(1)(a) of the constitution as she was entitled to access to the highest standards of health care and more specifically reproductive health. Her arrest was degrading and inhumane. Her rights under article 25(a) and 28 of the Constitution were grossly violated.
- The Constitution had to be construed in a manner which secured the fundamental freedoms and rights for each citizen bearing in mind the full measure of the provisions under chapter 4 on the bill of rights. There were no precise comprehensive policies promulgated by the minister of health setting guidelines on safe and legal abortions. The court took issue with the provisions of the Penal Code even on a mere matter of construction. The impugned provisions by use of the word unlawful import an inference that a miscarriage was prima facie evidence that the victim triggered it through criminal culpability. Sometimes that was not the case. The 2nd petitioner may not be criminally responsible for performing a medical procedure presumably having formed an opinion that it was the right thing to do within the province of article 26(4) of the Constitution.
- A doctor that acted on emergency protocols in performing an abortion could not face criminal penalties under the Penal Code because he would not meet both the mens rea and actus reus of the offence. The fact of the victim of the alleged offence being a minor meant that legal counsels role at the time of arrest and recording statement was most vital.
- The instant case was an example where the 1st petitioner was seized from the hospital bed by arresting officers without the benefit of effective legal representation under article 49(1c) of the Constitution. As a result the 1st petitioner was prejudiced in circumstances which rendered her arrest, recording of (the so called confession) statement and subsequent arraignment in court in absence of legal counsel. Focusing on pre-trial rights under article 49 of the Constitution one wondered how an unrepresented minor would articulate matters arising from the interrogatories raised by the police. The binding nature of the rights in terms of article 49 of the Constitution obligated the state to effectively ensure implementation in accordance with the aims and purpose of the Constitution. That contract between the state and the alleged suspects to a crime as underpinned in the supreme law seemed not to have been fulfilled.
- Despite the fact that the proceedings were yet to be concluded, the mere fact that the prosecution failed to establish that the medical procedure the 1st petitioner underwent was in breach of article 26(4) was a clear indication of a biased approach to the prosecution of the petitioners. There was no counsel present when the petitioner signed the statement on procurement of the abortion. The same was of questionable evidentiary value. Article 50(2) of the Constitution provided that a person had the right to refuse to give self-incriminating evidence. Admitting that involuntary statement and using it to charge the petitioner was a violation of article 50(2) and (4) of the Constitution.
- The violation of sections 158, 159 and 160 in the instant case did not accord with the tenets on procedural fairness and fundamental rights clearly stated in the Constitution. The rights embodied in the Constitution on conscience, life, dignity, freedom of choice, security, privacy as grounded conscientiously with reproductive rights behind article 26(4) should be broadly construed so as not to deny the beneficiaries the essentials of humanity.
- In providing a test of imminent danger for the exercise of the article 26(4) of the Constitution and discretions which went with it, there was good sense that the pregnant woman and the trained health professional would in their decisions exercise their powers to protect the Constitutional right to life.
- The facts and the context of the instant case raised the bar as to the chronology of events arising out of a decision of a medical doctor or a health care provider acting in his capacity to give medical opinion to his or her patient on termination of a pregnancy. The constitutional regulatory framework in article 26(4) of the Constitution was relevant in the context of the alleged abortion conducted at Kilifi.
- The High Court had power by the writ of mandamus as a remedy against government agencies or body or person to amend all errors, omissions and failure to meet legitimate expectations which tend to oppress the right holders. That kind of infringement resulting in misgovernment called for the High Court to exercise discretion as a means of enforcing performance of a public duty bestowed by the Constitution or statute.
- Orders of mandamus had to compel the performance of a public duty that a body or institution was legally bound to perform. The petitioner had not shown that the actions it sought the respondents to be compelled to perform were specific or that they were legally bound to perform the said duties. Had there been specific legal provisions that bound the respondents to perform the actions sought, the orders sought would have been granted. The duties sought to be performed were at the discretion of the respondents and in the premises the instant court could not compel them to do the same by way of mandamus.
- Orders of prohibition, certiorari and mandamus had become general remedies which could be granted in respect of any decisive exercise of discretion by an inferior authority performing public functions. In the decision making process by the Director of Public Prosecution to charge and prosecute the petitioners, certain relevant factors were not taken into account involving the set criteria under article 26(4) of the Constitution. The lingering effect was on the legal basis of evidence and conclusion reached by the respondents to investigate and prefer charges against the petitioners. Contrary to the opinion held by the respondent the decision may have been reached with caprice or whim. The petitioners had demonstrated that, applying the objective test there prima facie evidence supporting a feature for prohibition and certiorari against the respondent.
- The writ of mandamus provided the normal means of enforcing the performance of public duties by public authorities as part of their statutory or constitutional duty. The petitioners had not discharged the burden of proof for the instant court to exercise discretion under article 23(3) of the Constitution to grant a writ of mandamus. An order of mandamus could not be granted on mere apprehension by the petitioners that their rights were likely to be violated in the future by the respondent to warrant grant of the remedy as of now.
- The petitioners had to be alive to the fact that courts did not give orders in vain. The orders sought were impossible to enforce through the actions of one organ. They required a coordinated response between various organs. Whereas the court could make those orders, their enforceability within the requested timelines was a mammoth task. The court was reluctant to grant those orders as they would be in vain. The bodies that the petitioners sought to compel would not be in the position to comply with those orders within the timelines given. It was not necessarily for the court to examine the merits and demerits of granting a permanent injunction for those who held office in government and were responsible to public administration or the common good of the citizens.
- The relief on injunctions flowed from the provisions of order 40 rule 1 and 2 of the Civil Procedure Rules. The purpose of granting a permanent injunction was to prevent a respondent from breaching an obligation existing in favour of the plaintiff. For the court to grant a permanent injunction an applicant had to pass the four step test:
- The applicant had suffered an irreparable harm or injury.
- That the remedies available at law such as monetary damages were inadequate to compensate for the injury.
- That the remedy in equity was warranted upon consideration of the balance of hardships between the applicant and the respondent.
- The permanent injunction being sought would not hurt public interest.
- Giving effect to the above guidelines the petitioners could not be granted that equitable remedy as there existed alternative efficacious reliefs obtainable in their favour. Denial of constitutional rights for even at very limited periods of time constituted irreparable harm justifying the grant of an injunction. Going to the specifics of the evidence tendered by the petitioners, the balancing analysis weighed heavily against grant of the remedy as couched in the petition.
- The new conceptual framework in Kenyas jurisprudential development was an award of damages, a remedy strictly grounded in constitutional torts. The contentions by the petitioners raised serious issues to the extent of considering an award of damages. In awarding damages, each case had to be considered on its own specific characteristic and rooted facts on the violation.
- The respondents failed to satisfy the court by way of evidence or some other information that a limitation or a restriction on those fundamental rights was justified and reasonable as dictated by the Constitution. A court had to assess damages on the importance of a particular right against the backdrop in the overall constitutional scheme. There were good reasons in Kenyas constitutional order for the rights to life, privacy, liberty, due process, dignity, security, equality on the fundamental freedoms being given prominence though not exceptionally absolute. They had to be looked at from continuum scale. The legal of philosophical statement and limitation of constitutional rights would not be justifiable unless there was a substantial state interest that required the limitation.
- The manner in which the 1st, 2nd and 3rd respondents went about in limiting the rights of the petitioners under the auspices of section 158, 159 and 160 of the Penal Code was in certain terms a violation of the Constitution. There were interlocking issues between the prevention of crime, health or morals, enjoyment of reproductive rights and guaranteed on fundamental rights and freedoms safeguarded the Constitution.
- The police exercised their wide powers against the petitioners in complete disregard to the permissible covenants to their right to privacy, security, dignity, the saving clause in article 26(4) and pre-trial fair rights in article 49 of the Constitution.
- Article 22, 23 and 24 of the Constitution provided a broad approach to standing to trigger an aspect of fundamental rights were at stake. The petitioners could qualify for grant of damages under the purpose of interpretation on conduct by the respondents inconsistent with the Constitution
- It was important for the court to consider the concept of exceptionalism having due regard to the far reaching questions of importance involving an award of damages against state actors. As well intentioned and seemingly justified the formulation for damages may be, the notion of effective remedies did not necessarily include an assessment of monetary damages. There were several circumstances that the nature of a constitutional violation could not escape a remedy and damages to serve a specific purpose. It was not necessary for the courts to punish the offender generally unless it became inevitable part of the essential remedies. The court was inclined not to assess damages in favour of the petitioners as a tool of compensation.