The High Court has lifted restrictions that had barred Marie Stopes Kenya from offering abortion services, post abortion care, and related public information, after finding that the directives were issued without legal authority.
In a ruling delivered by Justice Chacha Mwita, the court quashed decisions made by the Kenya Films and Classification Board, the Kenya Medical Practitioners and Dentists Council, and the Director of Medical Services, declaring them unconstitutional, unlawful, illegal, and ultra vires.
The judgment followed a petition filed in November 2018 by the Network for Adolescents and Youth of Africa, NAYA Kenya, and Jackline Mary Karanja. The petitioners were represented by the Center for Reproductive Rights and challenged a series of bans imposed on Marie Stopes Kenya, arguing that they denied women, girls, and young people access to lawful sexual and reproductive health information and services.
Justice Mwita ruled 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 said.
On the role of the Kenya Films and Classification Board, the court found that the Board had 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. Justice Mwita held that the Board lacked legal authority to prohibit such public health campaigns.
Regarding the Kenya Medical Practitioners and Dentists Council, the court ruled that the council had no power to conduct disciplinary proceedings against institutions, noting that its mandate is limited to regulating individual medical practitioners and dentists.
The court further held that the Director of Medical Services unlawfully usurped the powers of the Director General of Health. As a result, the directive banning post abortion care was declared illegal.
The petitioners had argued that the bans exposed women and girls seeking urgent and lawful medical care to serious risk and violated constitutional rights to health, access to information, and human dignity. The court agreed, reaffirming that public authorities must act strictly within the limits of the law when issuing directives that affect access to healthcare services.
