Kenya Court Ruling Reaffirms Women’s Reproductive Rights, But Activists Say Justice Remains Partial

By Jackson Okata

Nairobi, Kenya -Kenya’s High Court has delivered a landmark judgment in a case challenging the constitutionality of the National Reproductive Health Policy 2022–2032 (NRH Policy).

The court sitting in the Capital, Nairobi, struck down a key clause in the policy that sought to limit access to abortion services.

In a decision by Justice E.C. Mwita, the court ruled that the section requiring health professionals to consider the “highest attainable standard of health of the unborn child” when deciding whether to terminate a pregnancy was unconstitutional.

The court ruled that the clause contradicted Article 26(4) of Kenya’s Constitution, which outlines the legal grounds for terminating a pregnancy.

The judgment came after a two-year legal battle filed by KELIN (Kenya Legal and Ethical Issues Network on HIV and AIDS), Rachael Mwikali, Esther Aoko, and the Ambassador for Youth & Adolescent Reproductive Health Programme (AYARHEP).

The petitioners had accused the Ministry of Health of adopting the policy without meaningful public participation and of embedding provisions that discriminate against women, girls, and adolescents.

The Heart of the Dispute

At the centre of the case was the petitioners’ argument that the NRH Policy failed the test of inclusivity and rights-based policymaking.

The petitioners argued that the policy excluded women below 21 years from accessing certain reproductive health services and restricted cervical cancer screening to women aged 25 to 49.

Additionally, they took issue with the introduction of the concept of protecting “the health of the unborn child,” a phrase they said was weaponised to erode women’s bodily autonomy.

The petitioners argued that these measures violated fundamental rights to equality, non-discrimination, and access to health guaranteed under the Constitution.

In his verdict, Justice Mwita found that the Ministry of Health had undertaken sufficient public participation when developing the policy, and that most of its provisions did not breach the Constitution. However, he ruled that paragraph 12 of clause 3.4.1 was inconsistent with constitutional guarantees and therefore invalid.

Partial Victory

Although the ruling is being hailed as a milestone, petitioners described it as a partial victory, saying it fell short of addressing broader systemic issues.

“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,” said Rachael Mwikali, Executive Director of the Coalition for Grassroots Human Rights Defenders Kenya.

“The process excluded and marginalised key groups most affected, myself included. I intend to appeal to ensure that constitutional rights and inclusive, rights-based policymaking are upheld,” she added.

KELIN echoed similar sentiments, emphasising that while the court’s decision strengthens constitutional safeguards around abortion, other contentious issues, such as mandatory HIV testing for pregnant women and their families, and the barriers adolescents face in accessing reproductive health information and services, remain unresolved.

Catherine Namulanda, one of the petitioners' advocates, noted that by invalidating the clause, the High Court reaffirmed that reproductive health policies must be grounded in rights, autonomy, and equality rather than moral or political ideology.

“The ruling is a reminder that progress in reproductive rights is both a legal and social struggle”, she said.