(Petitioners pause for a photo during a court appearance in January 2025)
Nairobi, 2 October 2025 – Justice E.C. Mwita delivered the judgement on the National Reproductive Health Policy 2022 – 2032 (NRH Policy), marking a partial victory for the petitioners KELIN, Rachael Mwikali, Esther Aoko and the Ambassador for Youth & Adolescent Reproductive Health Programme (AYARHEP), who had challenged the policy’s constitutionality, inclusivity and impact on adolescents and women.
The court has declared a key clause of the NRH Policy unconstitutional, striking down a section that restricted access to abortion and affirming women’s rights under Article 26(4) of the Constitution.
Why the Petition Was Filed
The petition was filed on the following grounds:
- There was no meaningful public participation when the policy was adopted on 5th July 2022.
- Some provisions of the policy were unconstitutional, discriminatory and exclusionary, especially towards adolescents, young girls and women.
- Specific issues raised included:
- Cervical cancer screening limited only to women aged 25 – 49, excluding younger and older women.
- Restrictions on access to reproductive health information and services for women under 21 years, despite their capacity to make informed decisions.
- Contradiction of Article 26(4) of the Constitution by introducing the “health of the unborn child” as a factor when considering termination of pregnancy.
The Court’s Findings
The High Court ruled that:
- The NRH Policy was developed with sufficient public participation, with stakeholder views taken into account.
- Most of the policy’s provisions do not violate the Constitution.
- However, one section – paragraph 12 of clause 3.4.1 was declared unconstitutional. This clause required health professionals to consider the “highest attainable standard of health of the unborn child” in decisions to terminate a pregnancy. The court held this to be inconsistent with Article 26(4) of the Constitution, which outlines the grounds under which termination of pregnancy is permitted in Kenya.
What This Means
The petition partially succeeded. While most of the policy remains in place, the removal of the unconstitutional clause reinforces that the rights of women and girls to access termination of pregnancy services are protected under the Constitution.
The petitioners welcomed this partial win but expressed disappointment that the court did not address broader concerns, such as:
- Mandatory HIV testing of pregnant women and their families.
- The barriers adolescents face in accessing reproductive health information and services.
Further analysis will be shared once the certified judgment is received.
Voices from the Petitioners
“While we respect the Court’s ruling, we remain deeply concerned that it failed to fully acknowledge the unequal and discriminatory nature of public participation in the formulation of the NRH Policy. The process excluded and marginalized key groups most affected, myself included, and therefore cannot be considered meaningful or effective. As the 1st Petitioner, I am not satisfied with the judgment, particularly on this critical issue of participation, non-discrimination and equality. I intend to appeal to ensure that constitutional rights and inclusive, rights-based policymaking are upheld.’’ – Rachael Mwikali, Pan African and Human Rights Defender, Executive Director Coalition for Grassroots Human Rights Defenders Kenya.
Acknowledgements
KELIN commends the dedication of petitioners Rachael Mwikali, Jerop Limo, Ambassador for Youth & Adolescent Reproductive Health Programme (AYARHEP), Esther Aoko, Dr Nelly Bosire and the KELIN litigation team led by Nyokabi Njogu, Catherine Namulanda, Melinda Mugambi and Gaudence Were. We also appreciate the invaluable support of the Kenya Obstetrical and Gynaecological Society (represented by the Centre for Reproductive Rights) and the Katiba Institute, who joined the petition as Interested Parties.
For more information, contact:
Allan Maleche or Catherine Namulanda
Advocates for the Petitioners
Email: litigation@kelinkenya.org
