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In a landmark verdict today, the High Court of Malindi has ruled that safe abortion care is a fundamental right under the Constitution of Kenya and that arbitrary arrests and prosecution of patients and healthcare providers, for seeking or offering such services, is completely illegal. Specifically, the Court ruled that: Abortion care is a fundamental right under the Constitution of Kenya and that arbitrary arrests and prosecution of patients and healthcare providers seeking or offering such services is illegal. Protecting access to abortion impacts vital Constitutional values, including dignity, autonomy, equality, and bodily integrity. Criminalizing abortion under Penal Code without Constitutional statutory framework is an impairment to the enjoyment of women’s reproductive right. For years, women and girls in Kenya have faced sustained and pervasive discrimination hampering their access to seeking reproductive healthcare services; the 1963 Penal Code criminalizes all abortion care, including those allowed under the Constitution 2010, which guarantees the right to healthcare, including access to reproductive health services. The Constitution only permits safe abortion if in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is at risk/in danger. The court case in question, filed in November 2020, involved PAK, a minor 16 years of age from Kilifi County. PAK experienced complications during pregnancy and immediately sought medical care at a nearby clinic where a trained clinical officer attended to her. Upon examining her, the clinical officer determined that she had lost the pregnancy and proceeded to provide her with essential and life-saving post-abortion care. Policy officers stormed the clinic, in the midst of the treatment, stopping the medical procedure and confiscating PAK’s treatment records. They then proceeded to illegally arrest both PAK and the clinical officer. Both were taken to Ganze Police Patrol Base where PAK was not allowed to access further medical care for the next two days and was forced to sign a statement which was contrary to PAK’s description of the events. The police also forced PAK to undergo another detailed medical examination at Kilifi County Hospital to obtain evidence to prove the alleged offence of abortion. The clinical officer was detained for one week while PAK was remanded to a juvenile remand for more than a month, whilst she and her family sought to secure the cash bail for her release. The Malindi High Court has further directed the Parliament to enact an abortion law and public policy framework that aligns with the Kenyan Constitution. Additionally, the Court has confirmed that communication between a patient and the healthcare provider is confidential, which is guaranteed and protected under the Constitution and other enabling laws, save for where the disclosure is consented to by the patient or is in the public interest in line with the limitations as provided for in the Constitution. In its decision, the Court also ruled that PAK was recovering from medical procedure and police did not have the medical qualifications to determine and confirm that she was medically-fit to leave the clinic, regardless of her admission status at the clinic. Additionally, the Court found that PAK’s arrest was inhuman and degrading, and being a minor, she ought not to have been interrogated without legal representation. Marie-Evelyne Petrus-Barry, Africa Regional Director from the International Planned Parenthood Federation, said: “We are absolutely delighted to hear this news and applaud the High Court of Malindi's ruling confirming that abortion care is a fundamental right under the Constitution of Kenya and that arbitrary arrests and prosecution of patients and healthcare providers for seeking or offering such services is illegal. We are also very pleased to hear that the Court has directed Parliament to enact an abortion law and public policy framework that aligns with the Constitution. This is a victory for women and girls not only in Kenya, but across Africa! Access to quality abortion is essential to guarantee the health and reproductive rights of women and girls everywhere. At IPPF, we are committed to reducing the number of deaths of women and girls who are forced to turn to unsafe abortion methods for fear of arrests and harassment. We will continue to supply and support safe and legal abortion services and care for women and girls everywhere.” The petitioners were represented by the Center for Reproductive Rights a network of reproductive health providers whose member was the second petitioner in this case and a collaborative partner of IPPF. The advocates were Martin Onyango, Head of Legal Strategies for Africa, and Prudence Mutiso, Legal Advisor for Africa. Nelly Munyasia, Executive Director of Reproductive Health Network Kenya (RHNK), , welcomed the court’s decision: “Many qualified reproductive healthcare practitioners continue to be arrested, detained, and prosecuted for providing legal medical care. The court’s decision confirms that prosecution against health providers cannot hold where the prosecution has not established that; the health professional in question was unqualified to conduct the procedure; the life or health of the woman was not in danger or the woman was not in need of emergency treatment,” Ms. Munyasia said. Evelyne Opondo, Senior Regional Director for Africa at Center for Reproductive Rights said: “Today’s victory is for all women, girls, and healthcare providers who have been treated as criminals for seeking and providing abortion care. The court has vindicated our position by affirming that forcing a woman to carry an unwanted pregnancy to term or to seek out an unsafe abortion is a gross violation of her rights to privacy and bodily autonomy. Further, the continued restrictive abortion laws inhibit quality improvement possible to protect women with unintended pregnancies.” Center fact sheet: “The Impact of the Misalignment Between Kenya’s Constitution and the Penal Code on Access to Reproductive Health Care”

On International Women's Day 2022, Guatemala's Congress passed a law which triples the prison sentences for women seeking abortion care, prohibits same-sex marriage and further bans the teaching of comprehensive sexuality education and sexual diversity in schools, saying that teaching "anything other than heterosexuality is normal" is against the law.  The "Life and Family Protection Law" was passed by an overwhelming majority of 160 - 8 in the conservative-led Congress, but still needs to be signed by Guatemala's president, Alejandro Giammattei, in order to come into force. Under the new law, women who "have induced their own abortion or given their consent to another person to carry it out" will face a minimum of five years in jail, but the sentences could reach a maximum of 25 years. Abortion is illegal in Guatemala except in cases where the woman's life is at risk. This law is the latest of a series of laws to attack human rights across the country, including gender equality and sexual and reproductive health and rights. The initiative goes against human rights agreements, especially for women and LGBTI+ people and condemns and denies the diversity of families including mono-parental homes.  Eugenia Lopez Uribe, IPPF's Regional Director for Americas and the Caribbean Region, said: "It is disturbing that on International Women's Day 2022, the Guatemalan Congress passed a law that completely violates the human, sexual and reproductive rights of women, girls and marginalized people. "While countries across Latin America were celebrating the lives and rights of women, Guatemala has chosen to criminalize those making the best decision for themselves and their families, while also risking imprisoning vulnerable women and girls who have experienced sexual violence or suffered pregnancy loss. By severely limiting access to safe and post-abortion care, the law will undoubtedly lead to an increase in unsafe abortions and a decrease in prenatal care, resulting in life-long disabilities for some women and a rise in maternal deaths. "At the same time, by prohibiting same-sex marriage, limiting comprehensive sexuality education and enabling the discrimination of sexual diversity, the Guatemalan government is creating a society that fosters miseducation, stigma, intolerance and homophobia and fuelling the persecution of LGBTI and non-binary people. "IPPF strongly condemns the passing of this archaic law and demands that the Guatemalan government fulfils international human rights agreements. We stand in solidarity with affected people across Guatemala and the organizations working tirelessly to ensure that all people have the freedom to make their own choices." For media enquiries, please contact Karmen Ivey on kivey@ippf.org or media@ippf.org