Authored By: Angellah Kemunto Ogise
University of Nairobi
Case Title and Citation
Federation of Women Lawyers (Fida – Kenya) & 3 others V Attorney General & 2 others; East Africa Center for Law & Justice & 6 others (Interested Party) & Women’s Link Worldwide & 2 others (Amicus Curiae) [2019] KEHC 6928 (KLR)
Court Name
The High Court of Kenya
Constitutional and Human Rights Division
Bench
Justice A. O. Muchelule, Justice M. Ngugi, Justice G. V. Odunga, Justice L. A. Achode, Justice J. M. Mativo
Date of Judgment
This Judgment was delivered on 12th June 2019.
Cover Note
A crucial court case for my research project is laid out in this case summary. It examines the 2019 High Court decision in Federation of Women Lawyers (FIDA, Kenya) & 3 others v. Attorney General & 2 others. The summary highlights how the court interpreted applicable constitutional rights, decided against the elimination of crucial health guidelines, and took into account the broader implications on reproductive rights and healthcare access in Kenya.
Parties
Petitioners – Federation of Women Lawyers (Fida – Kenya), JMM Through PKM (Suing as Guardian and Next Friend of JMM), Ruth Mumbi Meshack, and Victoria Otieno Awuor.
And
Respondents – The Attorney General, The Cabinet Secretary, Ministry Of Health, and The Director Of Medical Services.
Interested Parties – East Africa Center For Law And Justice, Kenya Christian Professionals Forum, Catholic Doctors Association, John Mbugua, Article 19 Eastern Africa, Physicians For Human Rights, and Nazlin Umar Rajput.
Amicii – Women’s Link Worldwide, National Gender And Equality Commission, and Kenya National Commission On Human Rights.
Facts
JMM got pregnant in 2014 after being sexually assaulted by an older man. Due to the stigma associated with rape, she decided to carry out an abortion on 8th December 2014 through a person introduced to her by her roommate, referred to as a ‘doctor’. JMM was injected in her thigh without examination by the ‘doctor’, who promised her foetus would be expelled the next day. When that did not happen, she went back to the ‘doctor’ who inserted a metal-like cold object into her vagina and told her that the foetus would be expelled. On that evening, JMM fell sick; she not only vomited but also had severe stomach pains accompanied by heavy bleeding.
On 10th December 2014, JMM’s mother, PKM, was informed of her child’s serious illness and was requested that she be taken to the dispensary. Upon being interrogated by the medical staff, she admitted to having procured an abortion. As a result of the dispensary’s lack of equipment, an ambulance was offered to transfer her to Kisii Teaching and Referral Hospital. PKM was able to make her way to the hospital, where she was informed that indeed JMM had procured an unsafe abortion. Subsequently, the foetus was removed, and the hospital advised that due to the unavailability of dialysis services at the hospital, JMM ought to be transferred to another health facility. JMM was transferred to Tenwek Mission Hospital due to heavy bleeding and kidney failure.
JMM, diagnosed with septic abortion, haemorrhagic shock, and chronic kidney disease, was admitted to Tenwek Hospital on 12th December 2014 but discharged due to a lack of equipment. She was referred to Kenyatta National Hospital’s renal unit, where financial difficulties prevented her from starting outpatient dialysis. PKM, supported by the 3rd and 4th Petitioners, argued that the Ministry of Health has not adequately addressed sexual violence in Kenya, despite the provision of termination of pregnancy as an option in cases of rape, and that it is not clear how such services would be accessed. JMM passed away in June 2018 at the age of 18.
Procedural History
The Petitioners contested the Ministry of Health’s 2014 decision to eliminate safe abortion guidelines and restrict training for healthcare providers through a constitutional petition. Various organizations, including Article 19 Eastern Africa, Physicians for Human Rights, and Women’s Link Worldwide, supported the petitioners’ position as Interested Parties and Amicus curiae. The Respondents contended that the petition was hypothetical and lacked concrete evidence, thus opposing it. Following hearings on constitutional matters, the High Court ruled in favor of the petitioners, upholding women’s constitutional rights to access legal abortion services under specific conditions.
Issues for Determination
- Whether Article 26(4) permits abortion in certain circumstances;
- Whether pregnancy resulting from sexual violence falls under the permissible circumstances for abortion under Article 26(4);
- Whether the Director of Medical Services’ (DMS) impugned letter and Memo meet the test for limitation of rights set out in Article 24 of the Constitution;
- Whether the decision to withdraw the 2012 Standards and Guidelines and Training Curriculum and to issue the Memo violated Articles 10 and 47 and was ultra vires the powers of the DMS;
- Whether PKM as the personal representative of the estate of JMM is entitled to comprehensive reparation, including indemnification for material and emotional harm suffered as a result of the actions of the respondents;
Arguments of the Parties
- The Petitioners argued that Kenya lacks lawful and safe abortion services, especially for women and girls who have conceived due to rape or defilement. They argue that the removal of the 2012 Standards and Guidelines and National Training Curriculum is unlawful and unconstitutional. The petitioners criticized the justice system’s inability to protect reproductive rights, particularly for survivors of sexual violence, and called for clear information and access to trained healthcare professionals.
- The Respondents argued that the Penal Code provides a moral and legal foundation for abortion, refuting the Petitioners’ claims. They defended the removal of the abortion training curriculum and the 2012 Standards and Guidelines, claiming that it was in line with ethical norms and current legislation.
Judgment
- Whether Article 26(4) permits abortion in certain circumstances;
- On the first issue, the court held that abortion is illegal in Kenya, save for the exceptions provided under Article 26(4) of the Constitution.
- Whether pregnancy resulting from sexual violence falls under the permissible circumstances for abortion under Article 26(4);
- Regarding the second matter, the court ruled that abortion is permissible if a qualified medical professional believes that immediate medical attention is required or that a mother’s life or health is in jeopardy.
Whether the DMS’s impugned letter and Memo meet the test for limitation of rights set out in Article 24 of the Constitution;
In relation to the third matter, the court ruled that the letters issued by the respondents were unlawful, capricious, unconstitutional, and thus invalid ab initio. Consequently, the court annulled the letters.
Whether the decision to withdraw the 2012 Standards and Guidelines and Training Curriculum and to issue the Memo violated Articles 10 and 47 and was ultra vires the powers of the DMS;
On the fourth issue, the court held that the decision to withdraw the 2012 Standards and Guidelines and Training Curriculum violated Articles 10 and 47 of the Constitution and the Fair Administrative Action Act, must be answered in the affirmative. It also held that the withdrawal of the 2012 Standards and Guidelines, the Training Curriculum and Medabon was ultra vires the powers of the DMS since those powers are bestowed upon the Board.
Whether PKM as the personal representative of the estate of JMM is entitled to comprehensive reparation, including indemnification for material and emotional harm suffered as a result of the actions of the respondents;
With respect to the fifth issue, the court ordered the Respondents to pay PKM Ksh. 3,000,000/- as compensation for the physical, psychological, emotional, and mental suffering, stress, pain, and death that JMM experienced as a result of the Respondents’ violation of JMM’s constitutional rights.
Legal Reasoning
Whether Article 26(4) permits abortion in certain circumstances;
The court, in determining the first issue, relied on Article 26(2) and (4) of the Constitution of Kenya. Article 26(2) contains the general rule that prohibits abortion. Article 26(4), on the other hand, sets out the exception to the general rule: “(4) Abortion is only permitted if a licensed medical professional determines that immediate medical attention is required, if the mother’s life or health is in danger, or if another written legislation permits it.”1
Whether pregnancy resulting from sexual violence falls under the permissible circumstances for abortion under Article 26(4);
The court invoked Article 26(4) of the Constitution, which stipulates that abortion is allowed if a qualified medical expert determines that emergency treatment is necessary, or the mother’s life or health is in danger, or if any other written law permits it.
Whether the DMS’s impugned letter and Memo meet the test for limitation of rights set out in Article 24 of the Constitution;
The court relied on Article 43 (1) (a) of the Constitution grants every person the right to the highest attainable standard of health, which includes the right to health care services and reproductive health care. The respondents, therefore, constituted a limitation of the rights under Article 26(4), derogating them from the core or essential content of the right.
Whether the decision to withdraw the 2012 Standards and Guidelines and Training Curriculum and to issue the Memo violated Articles 10 and 47 and was ultra vires the powers of the DMS;
The Court observed that the 2012 Standards and Guidelines were withdrawn in 2013, and the DMS threatened severe consequences for safe abortion training, stating the state failed to meet Article 24(3) of the Constitution. The state, which under Article 24(3) of the Constitution shoulders the burden of demonstrating that the requirements of this Article have been satisfied, had failed to do so.
Whether PKM as the personal representative of the estate of JMM is entitled to comprehensive reparation, including indemnification for material and emotional harm suffered as a result of the actions of the respondents;
The court relied on the following principles that clearly emerge from decided cases:
Monetary compensation for violation of fundamental rights is now an acknowledged remedy in public law for enforcement and protection of fundamental rights;
Such claim is distinct from, and in addition to a remedy in private law for damages for tort;
This remedy would be available when it is the only practicable mode of redress available;
Against a claim for compensation for violation of a fundamental right under the Constitution, the defence of sovereign immunity would be inapplicable.
The court recognized monetary compensation as a legitimate remedy in public law for infringement of fundamental rights, separate from private tort damages. This remedy is accessible when it represents the only feasible means of obtaining redress, and sovereign immunity does not apply in cases concerning compensation for constitutional rights breaches.
Conclusion
The High Court of Kenya issued a groundbreaking decision affirming that women and girls possess the constitutional right to obtain legal abortion services in emergency situations. Abortion is allowed if the mother’s life or health is at risk, or if other regulations permit it, particularly in cases where a pregnancy due to rape or defilement threatens the mother’s well-being. The Court ruled that the Ministry of Health’s choice to withdraw the 2012 Standards and Guidelines, which had permitted safe abortion services via sufficient training for healthcare providers, was arbitrary and unlawful. This withdrawal was determined to violate constitutional rights concerning life, health, and scientific advancement, thereby exposing women and girls to the dangers of unsafe abortion practices.
Reference(S):
1 The Constitution of Kenya, 2010 Article 26 (4)
