Why Criminalizing Abortion in Kenya Marginalizes Women and Girls

The debate around abortion in Kenya is usually emotive and sensitive. It is also divisive among many people. There is an incessant conflict between anti-abortion and pro-choice movements.

Research shows that nearly half a million abortions occur in Kenya every year. Most of these abortion procedures are unsafe and they largely affect teenage girls.

Abortion in Kenya is illegal and that is why abortions happen in secret. Quack doctors carry them out, usually in secret, in backstreet clinics using crude methods. The procedures are very dangerous and they endanger the lives of women and girls.

Reports prevail of death from these procedures, often due to excessive bleeding and other complications. If not handled properly, they can also damage vital organs leading to lifetime complications.

Yet, if abortion were legal, there is no doubt we could easily save lives. The Constitution and the Penal Code criminalize abortion in Kenya and make it punishable by law.

Abortion in Kenya under the new Constitution

The 2010 referendum campaigns on the new Constitution showed the divisive nature of the abortion debate. On one hand, the prolife majority proposed stronger anti-abortion laws for inclusion in the Constitution. On the other hand, the pro-choice minority opposed this move.

The prolife majority carried the day after the Constitution made abortion in Kenya illegal. However, there was a compromise. A pregnant woman or girl can have an abortion if, in the opinion of a trained health professional:

  • she needs emergency treatment; or
  • her life or health is in danger.

The prolife movement comprised mainly of the religious and conservative folk. They voted against the constitution due this clause, which they said, meant to legalize abortion. Abortion in Kenya carries a huge stigma. One cannot expect the prolife majority to vote for or attempt to legalize abortion.

The half a million abortions that occur in Kenya every year are just a tip of the iceberg. Many more occur but the victims or their families and friends do not report the cases. Therefore, the government does not document these cases.

Yet, many are willing to continue regarding the women and girls seeking unsafe abortions as mere statistics. This neglect or apathy leads our women and girls to dangerous paths that put their lives at stake.

The Penal Code on abortion in Kenya

The Penal Code is a collection of various laws that prescribe punisment for certain offences. It expands the issue concerning abortion in the Constitution in Sections 158 to 160.

The Penal Code in Section 158 says the following about attempts to procure abortion:-

Any person who, with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious (harmful) thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for fourteen years.

In section 159, the Penal Code stipulates the following about intention to procure abortion:-

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.

Section 160 that deals with supplying drugs or instruments to procure abortion says the following:-

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.

For seeking abortion services, our women and girls risk seven years in jail.

People are hypocritical about sanctity of life

Those who oppose abortion, for most of the time, pretend to care about the unborn. They do not oppose abortion in Kenya or in any other jurisdiction because they care about the unborn. Instead, they only put on a show. Like The Late Comedian George Carlin says in one of his stand up comedy,

Boy, these conservatives are really something, aren’t they? They’re all in favor of the unborn. They will do anything for the unborn. But once you’re born, you’re on your own.

He also calls out the prolife conservatives for their hypocrisy.

Pro-life conservatives are obsessed with the fetus from conception to nine months. After that, they don’t want to know about you. They don’t want to hear from you. No nothing. No neonatal care, no day care, no head start, no school lunch, no food stamps, no welfare, no nothing. If you’re preborn, you’re fine; if you’re preschool, you’re f*ked.

George Carlin is right about conservative prolife movement. People who oppose abortion often do so because of the common prevailing biases and selfish interests. They pressure the pregnant woman or a girl to keep the fetus but take off once it is born. They leave the burden to clothe, feed, and raise the child on the woman or girl with no help thereafter.

The pregnant woman or girl should have the ultimate decision on what to do with her own body. She has the right to decide whether to keep the fetus or not. Conservative pro-lifers use psychological warfare to dupe the pregnant women or girls into keeping the fetus. Like George Carlin says,

They’re not pro-life. You know what they are? They’re anti-woman. Simple as it gets, anti-woman. They don’t like them. (Conservative prolifers) don’t like women. They believe a woman’s primary role is to function as a brood mare for the state.

Is a fetus really human?

This question continues to draw heated debates. There is no concrete answer because what prevails is contradicting scientific, ethical, legal, personal, religious, and cultural opinions.

Pro-life movement largely says that “life begins at conception” and the unborn is a baby and is human. The prochoice movement contradicts the same and largely says that the unborn cannot be human until it learns to function outside its host (the mother).

What shapes the progressive debate about abortion is often legal and scientific. The Roe vs. Wade landmark case that the USA Supreme Court made in 1973 leads the pack. The Planned Parenthood v. Casey (1992) which reviewed the former also counts as an influential example. The two laws gave prominence to the rights of women as human beings over the unborn.

When people talk about whether a fetus is human, the issue of fetal rights arises. Fetal rights refer to the rights of the unborn fetus from around eight weeks from conception to birth.

Laws in the USA and United Kingdom have not historically recognized the fetus as a person with full rights. Rather, the laws uphold the rights of the mother and treat the fetus as part of her.

Despite that, sometimes the US law grants the fetus limited rights, especially as the pregnancy reaches fetal viability. At fetal viability, the fetus can survive outside the uterus.

George Carlin says,

But let’s get back to this abortion sh*t. Now, is a fetus a human being? This seems to be the central question. Well, if a fetus is a human being, how come the census doesn’t count them? If a fetus is a human being, how come when there’s a miscarriage they don’t have a funeral? If a fetus is a human being, how come people say “we have two children and one on the way” instead of saying “we have three children?” People say life begins at conception, I say life began about a billion years ago and it’s a continuous process…

Why the double standards on Abortion in Kenya?

Abortion rights grant the women autonomy over their own bodies and being. The sad but ironical thing about many anti-abortion proponents is that they also oppose contraception.

Above that, those who oppose abortion in Kenya also oppose sex education for Kenyan children. Yet, ignorance about sex largely leads to illegal abortions in the first place among teenagers.

Those who oppose Abortion in Kenya reinforce the societal hatred against women. Radio host Renee Ngamau says the following about the double standards women endure,

They are wrong for taking care of children that men abandon. (Women) are wrong for not taking care of them. They are wrong for having unwanted babies. They are wrong for aborting them.

George Carlin has the following to say to anti abortion people,

So you know what I tell these anti-abortion people? I say “Hey. Hey. If you think a fetus is more important then a woman, try getting a fetus to wash the sh*t stains out of your underwear. For no pay and no pension.” I tell them “Think of an abortion as term limits. That’s all it is. Biological term limits.

Nevertheless, why are men the majority of those who legislate against abortion? Isn’t this a good example (no pun intended) of hyenas writing a proposal on how to protect goats?

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I comment on the current political and social issues in Kenya. I am also passionate about devolved governance and public finance. Follow me on social media.

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