A High Court ruling has removed limits that had stopped Marie Stopes Kenya from carrying out abortion services, post-abortion care and public education, with the court finding that the orders were imposed without lawful authority.
The decision clears the way for the organisation to continue offering the services and sharing information that had been blocked.
Justice Chacha Mwita on Thursday set aside actions taken by the Kenya Films & Classification Board, the Kenya Medical Practitioners and Dentists Council and the Director of Medical Services, saying the three bodies acted outside the law. He ruled that the decisions were unconstitutional, unlawful and beyond the powers given to them.
The case stemmed from a petition lodged in November 2018 by the Network for Adolescents and Youth of Africa, Kenya, alongside Jackline Mary Karanja. The two were represented by the Center for Reproductive Rights. They argued that the restrictions cut off access to lawful sexual and reproductive health services and information for women, girls and young people.
In his findings, Justice Mwita said none of the institutions had the legal power to issue the directives against Marie Stopes Kenya. “The court has found the decisions to be ultra vires, unlawful, illegal, and unconstitutional, and orders of certiorari are issued quashing all three decisions in their entirety,” he said.
The court ruled that the Kenya Films & Classification Board went beyond its role by stopping a public awareness campaign that Marie Stopes Kenya was running with the Ministry of Health and broadcasting through the media. The judge said the Board had no legal basis to block such messaging.
On the conduct of the Kenya Medical Practitioners and Dentists Council, Justice Mwita found that the council’s authority does not extend to disciplining institutions. He said its mandate is limited to individual medical practitioners and dentists.
The judge also found fault with the Director of Medical Services, holding that the office unlawfully took over functions reserved for the Director-General of Health. As a result, the directive that halted post-abortion care was declared illegal.
Those who filed the petition told the court that the bans put women and girls at serious risk by denying them urgent and lawful medical services. They said the actions breached constitutional rights to health, access to information and dignity, arguments the court upheld in lifting the restrictions.