Conflict and displacement disproportionately impact women and girls, exacerbating vulnerabilities related to sexual and reproductive health and rights. For displaced women, access to safe abortion services becomes even more critical due to increased risks of sexual violence, lack of contraception, and limited healthcare access. In Kenya, where refugee populations are significant, the intersection of abortion rights and displacement raises important legal and policy questions, particularly in the context of the Maputo Protocol the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.
Women in conflict-affected settings, including refugees, internally displaced persons (IDPs), and asylum seekers, often experience heightened risks of sexual violence, including rape as a weapon of war. Such violence leads to unintended pregnancies, sexually transmitted infections, and mental health challenges. Many displaced women also face barriers to contraception and emergency care, making safe abortion services a crucial component of their healthcare needs.
In Kenya, home to hundreds of thousands of refugees from Somalia, South Sudan, and the Democratic Republic of Congo (DRC), many women in refugee camps and urban settlements lack access to comprehensive reproductive healthcare. Restrictive abortion laws and Kenya’s reservation to the Maputo Protocol further limit their ability to access safe services, increasing the likelihood of unsafe abortions, which are a leading cause of maternal mortality globally.
Kenya’s legal framework on abortion is restrictive but evolving. The Constitution of Kenya (2010) allows abortion only in cases where:
- Thelife or healthof the mother is in danger.
- It ispermitted by any other written law.
However, the Penal Code (Sections 158–160) criminalizes abortion, creating a legal contradiction that fuels stigma and limits access. While the Health Act (2017)recognizes reproductive health as a right, Kenya has yet to adopt comprehensive policies to ensure safe abortion services, particularly for displaced women.
The Maputo Protocol, adopted by the African Union (AU) in 2003, is one of the most progressive frameworks on women’s rights in Africa. Article 14(2)(c) explicitly calls for legal abortion in cases of sexual assault, rape, incest, and when the health or life of the mother is at risk.
Kenya ratified the Maputo Protocol in 2010, meaning it is legally bound to implement its provisions. However, Kenya entered a reservation on Article 14(2)(c), meaning that it does not consider itself obligated to permit abortion on grounds of rape, incest, or sexual assault. This reservation significantly undermines access to safe abortion for displaced women, particularly those who are survivors of sexual violence.
Unlike other African countries that have reformed their laws to comply with the Maputo Protocol, Kenya’s reservation continues to restrict safe abortion access for vulnerable populations, including refugees and conflict-affected women. The government has not taken steps to lift this reservation, which directly affects the ability of displaced women to access reproductive healthcare in crisis settings.
Despite its commitment to the Maputo Protocol, Kenya faces significant barriers to its implementation:
- Legal and Policy Gaps
- Kenya’sreservation to Article 14(2)(c)means that abortion remains illegal in cases of rape and incest, even for displaced women facing sexual violence.
- The lack ofprogressive abortion lawscontinues to fuel stigma and restricted access.
- Stigma and Societal Resistance
- Abortion ishighly stigmatized, influenced bycultural and religious beliefs.
- Manyhealthcare providers fear legal repercussions, further restricting access to services.
- Barriers for Refugees and IDPs
- Refugee women faceunique challenges, includinglimited access to healthcare, discrimination, and financial constraints.
- In refugee camps, medical providers oftenlack training or resources to offer safe abortion services.
- Political and Institutional Hesitancy
- TheKenyan government’s reservationon Article 14(2)(c) reflects its reluctance to implement liberal abortion policies, despite international obligations.
To bridge the gap between the Maputo Protocol and Kenya’s abortion laws, the following steps are necessary:
- Lifting the Reservation on Article 14(2)(c)
- Kenya shouldremove its reservation on Article 14(2)(c)to allow safe abortion for rape, incest, and sexual violence survivors, particularly displaced women.
- This would align Kenya’s laws withinternational human rights obligations.
- Legal Reforms
- ThePenal Code’s restrictive provisionson abortion should be reviewed to remove criminal penalties in cases permitted under the Maputo Protocol.
- Strengthenlegal protectionsfor displaced women seeking sexual and reproductive healthcare.
- Improved Access to Safe Abortion Services
- Ensureavailability of safe abortion servicesin refugee camps and conflict-affected areas.
- Train healthcare providers to offernon-judgmental, confidential, and legalabortion services.
- Addressing Stigma and Raising Awareness
- Public education campaigns should challengemisconceptions about abortion.
- Women, including refugees, should beinformed of their reproductive rightsunder the Maputo Protocol.
- Government and Humanitarian Collaboration
- TheKenyan government, UN agencies, and human rights organizationsmust collaborate to ensure SRHR services are included in humanitarian responses.
- Legal aid and advocacy should be provided torefugee women seeking abortion care.
For displaced and conflict-affected women in Kenya, access to safe abortion is a fundamental human right, not a privilege. While the Maputo Protocol offers a strong legal basis for expanding access, Kenya’s reservation on Article 14(2)(c) continues to deny survivors of sexual violence access to safe abortion services.
By lifting its reservation, harmonizing national laws with the protocol, reducing stigma, and improving access, Kenya can take a critical step toward protecting the reproductive rights of all women, including refugees and IDPs. Until then, displaced women will continue to face the deadly consequences of unsafe abortion and systemic neglect.
