Court lifts order baring Marie Stopes from offering abortion services

Justice Chacha Mwita quashed decisions made by the Kenya Films & Classification Board (KFCB), the Kenya Medical Practitioners and Dentists Council (KMPDC), and the Director of Medical Services (DMS), terming them unconstitutional, unlawful, and ultra vires.

The ruling followed a petition filed in November 2018 by the Network for Adolescents and Youth of Africa (NAYA–Kenya) and Jackline Mary Karanja, who were represented by the Center for Reproductive Rights. 

The petition challenged the bans, arguing that they denied women, girls, and young people access to lawful sexual and reproductive health information and services.

Justice Mwita held that none of the three bodies had the constitutional or statutory mandate to impose the restrictions.

“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,” the judge ruled.

The court found that the KFCB overstepped its mandate by banning a public awareness campaign run by Marie Stopes Kenya in partnership with the Ministry of Health and aired through the media, noting that the Board lacked legal authority to prohibit such campaigns.

On the KMPDC, the judge ruled that the council had no power to conduct disciplinary proceedings against institutions, as its mandate was limited to individual medical practitioners and dentists.

Justice Mwita further held that the Director of Medical Services unlawfully usurped the powers of the Director-General of Health, rendering the directive banning post-abortion care illegal.

The petitioners had argued that the bans exposed women and girls seeking urgent and lawful medical care to serious risk, and infringed on constitutional rights to health, information, and dignity.