International Safe Abortion Day Feature
By: Elsie Milimu
What is Unsafe Abortion?
The World Health Organization (WHO) defines an “unsafe abortion” as a procedure for terminating a pregnancy performed by persons lacking the necessary information or skills or in an environment not in conformity with minimal medical standards, or both. What is considered “safe” differs depending on whether the procedure is medical or surgical, and on the stage of pregnancy, with guidance drawn from the most recent WHO technical and policy guidance1.
A Crime or A Right?
The Guttmacher Institute estimates that 6.2 million unsafe abortions occur in sub-Saharan Africa each year—77 percent of the continental total—driving sepsis, infertility and disability.3 WHO also attributes 4.7–13 percent of maternal deaths worldwide to unsafe abortion. Of these cases, sub-Saharan Africa carries the heaviest burden; the region also shoulders nearly 90 percent of global HIV-related maternal deaths, a figure that rises when pregnancy itself is criminalised.4
Across much of sub-Saharan Africa, domestic laws on abortion are rooted in colonial-era penal codes that continue to regulate access restrictively and punitively. Provisions drafted in the nineteenth century and transplanted wholesale at independence continue to criminalise abortion. For example, Nigeria’s Criminal Code (Sections 228–230), Uganda’s Penal Code Act (Sections 141–143), and Kenya’s Penal Code (Sections 158–160) criminalize abortion and impose equivalent felonies. The criminalization exists even though existing national constitutional frameworks which are more superior in the hierarchy of laws embed this as an express human right, that is reproductive health rights. This has converted what should be matters of public health into criminal offences. Similar prohibitions linger in Lusophone jurisdictions such as Angola and Mozambique—although Mozambique’s 2014 reform shows the possibility of change—and in North Africa where Morocco’s draft reforms have stalled.
Conversely, regional commitments such as Article 14 of the Maputo Protocol, affirm the right to health and guarantees bodily autonomy, medical care , including access to medical abortion under specific conditions such as instances of sexual assault or where the continued pregnancy endangers the mental or physical health of the mother or the life of the mother or the fetus. Nonetheless, many African states have entered reservations on this very provision and jeopardizes access to safe and legal abortion. In practise therefore, as of 2024, approximately 90% of African women of reproductive age remain under restrictive legal regimes, highlighting the tension between existing laws and broader health and rights commitments.
The Kenyan Experience
In Kenya, while unintended pregnancy rates have declined between 2012 and 2023, recent estimates show that approximately 792,694 induced abortions occurred in 2023. This corresponds to an induced abortion rate of 57.3 abortions per 1000 women of reproductive age (15-49 years) and an induced abortion ratio of 48.1 induced abortions per 100 live births. Additionally, more than half of all unintended pregnancies ended in induced abortions2.
The Constitution of Kenya, Article 26(4), permits for abortion where, 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, or if permitted by another law. However, the Penal Code provisions criminalize safe and legal abortion (Sections 158–160), leading to prosecutions of providers and those seeking services.
In March 2022, the High Court in Malindi in the case of PAK and Salim Mohammed v Attorney General & Others, (Petition E009 of 2020)6 delivered a landmark ruling. The ruling is significant as it is the first time that abortion was affirmed as a constitutional right under the defined circumstances in Article 26(4). In addition, the court directed Parliament to enact reforms. The decision is currently under appeal.
Public Health and Socio-Economic Implications
Restrictions on access to quality and comprehensive sexual and reproductive health services, including safe and legal abortion, disproportionately affect women, girls, adolescents, marginalized groups, and survivors of sexual violence. This denial increases the risk of unsafe abortion and violates health related human rights including the right to life as it contributes significantly to maternal morbidity and mortality, with complications placing additional pressure on an already stretched health system. The carceral and criminal sanctions may also result in broader socio-economic impacts, including loss of livelihoods and long-term barriers to employment. The State has a duty to protect, respect and fulfill its human rights obligations and commitments by ensuring everyone can attain the highest standard of health which includes, reproductive health services such as safe and legal abortion where necessary – ensuring consistency with the Maputo Protocol and Agenda 2063 health goals.
Considerations for Policy Reform and Practice
Kenya has an opportunity to engage in dialogue on aligning national frameworks with constitutional provisions, public health priorities, and regional commitments. The government, CSOS, practitioners and the academia all have a role to play in harmonizing and reforming existing legal and policy instruments. Some key areas for consideration include:
- Legal realignment to decriminalize abortion by reviewing Penal Code provisions in light of the guarantees under Article 26(4) of the Constitution of Kenya 2024 and positive judicial decisions.
- Data and evidence – Strengthening research and dissemination on the prevalence and impacts of unsafe abortion. Additionally, dissemination of new data on the scale, patterns and gendered impacts of incarceration for SRH-related offences across at least five African sub-regions would provide evidence to influence policy reform.
- Expand Equity and access – There is need to address the disproportionate effects on adolescents, survivors of sexual violence, and marginalized populations and illuminating the historical, legal and socio-economic forces that criminalise safe and legal abortion, highlighting continuities from colonial morality clauses to present-day statutes that limit access to services and information
- Movement building and strategic litigation7 by civil society organizations challenging the constitutionality of punitive provisions and countering negative rhetoric or misinformation based on wrong interpretation of the law.
Conclusion
Unsafe abortion remains a leading contributor to preventable maternal mortality and morbidity in Kenya- with significant implications for public health, gender equality, and human rights. Evidence highlights the need to consider legal, constitutional, and public health dimensions together in shaping future policy. Kenya has an opportunity to be a thought leader in Africa by embracing this call to review its legal and policy framework on abortion in line with the Constitution, judicial pronouncements, and regional commitments. Any reforms would ultimately need to balance constitutional safeguards, public health imperatives, and the goal of ensuring dignity, safety, and equitable access to healthcare for all. On this International Safe Abortion Day, let us remember: Access to safe abortion is not a privilege—it is life-saving healthcare and a constitutional right.
