Federation of Women Lawyers (FIDA-Kenya) & 3 Ors. v. Attorney General & 2 Ors.

The Director of Medical Services issued a letter on December 3, 2013 and a memo on February 24, 2014 to “All Health Workers” that directed them not to participate in training on safe abortion practice and threatened legal action for non-compliance. The Federation of Women Lawyers filed suit, stating that the letter and memo had profound implications on the conduct of safe abortions in the context of Articles 26 and 29 of the Constitution, Article 4 of the Banjul Charter, Article 4 of the Maputo Protocol, and Articles 4 and 5 of the Africa Charter on the Rights of the Child.

The Court found that the Petitioners raised substantial questions of law and that the matter should therefore be referred to a bench trial. In deciding whether something raises a substantial question of law, the court considered whether the matter raised a novel point, the level of public interest or importance, and/or how substantially the rights of the parties were affected. The court found that abortion was an issue of great public concern and interest, the constitutional nature of the claims supported review, and the contested nature of abortion by use of Mifepristone and Misoprostol could make the directive forbidding their use unallowable.

“In the Petition before me, it cannot be contested that abortion as a subject is a matter of great public concern and interest. Moral, ethical, legal and factual questions with debatable and difficult implications would arise in determining what constitutes safe abortion.” Para. 8(e)(10).