Rights for Sexual Violence Survivors


With Gillian Ombogo,

Ombogo and Co |Legal Eye |Sexual Violence Survivors


Three months ago, my 21-year old niece was raped on her way home and she got pregnant. She was traumatized and suffered from bouts of depression. Her college mate, a medical student, offered to give her pills to quickly terminate the pregnancy as she monitored my niece at her house. She started bleeding and had severe abdominal pain.

Her friend contacted me and we rushed her to a nearby health clinic. We found they did not have a doctor but only nurses and a clinical officer who was in charge. The clinical officer advised she was suffering from pregnancy complications and only a termination (safe abortion) would save her life. He was uncomfortable conducting the procedure and organized for an ambulance to rush her to a nearby hospital; luckily, she survived the procedure I am however disturbed. Was the abortion legal? Was the clinical officer qualified to conduct it and if so, shouldn’t we have compelled him to do it? Should I hold her college mate liable?

Agnes Ndunge, Mavoko


Dear Agnes,

Rape is sexual violence with adverse physical and pyscho-social consequences on survivors like your niece. Abortion is a contentious issue and a public health concern in Kenya and globally.

Abortion is not permitted in Kenya. However, Article 26(4) of the Constitution only allows access to safe abortion in circumstances where in the opinion of a trained health professional, the life or health of the mother is in danger or there is need for an emergency treatment or if permitted by any other written law. The Health Act, 2017 also defines health as a complete state of physical, mental and social wellbeing and not merely the absence of disease.  In this case, the abortion was legal as there was a pregnancy complication, your niece’s life was in danger and her mental well- being was affected by depression as a result of the sexual violence.

Also under Kenya’s Ministry of Health National Guidelines on Management of Sexual Violence 2014, survivors of sexual violence have a right to access safe termination of the pregnancy as a result of rape.

The Health Act defines a trained health professional as persons with formal medical training at the proficiency level of a medical officer, nurse, midwife, or a clinical officer who has been educated and trained with the skills needed to manage pregnancy-related complications in women and who has a valid license from a recognized regulatory authority. The clinical officer and nurses were therefore qualified to attend to your niece.

Our Constitution allows freedom of conscience, thought, religion, beliefs and opinion. A health professional cannot be compelled to engage in any act that is contrary to their beliefs. But they are obligated to refer the patient in a timely and effective manner to an alternative medical professional who does not object to the procedure. However in your niece’s case, it was her constitutional right to access emergency medical treatment. The clinical officer was obliged to treat her as it was a life threatening situation, unless the clinic lacked capacity to handle the emergency.  

A medical student, is not a registered and licensed medical professional. Her house is not a legally recognized health facility with an enabling environment. The student violated the law under the Penal Code which criminalizes procurement of unsafe abortions and is guilty of a felony and liable to imprisonment for fourteen years.

Published in the Daily Nation Newspaper of 5th November 2020