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(4) of the Constitution of Kenya; Regulating Abortion

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(4) of the Constitution of Kenya; Regulating Abortion IMPLEMENTING ARTICLE 26 (4) OF THE CONSTITUTION OF KENYA; REGULATING ABORTION BY: MWAI SAMUEL MAINA G62/79753/2012 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENT FOR THE AWARD OF MASTER DEGREE IN LAWS OF UNIVERSITY OF NAIROBI JUNE, 2017 i DECLARATION I, Mwai Samuel Maina do declare that this is my original work and has not been submitted for any award to any institution or anywhere else before. The sources I have used or quoted have been indicated and acknowledged by references. Signed………………………… Date …………………………... This thesis has been submitted with the approval of my university supervisor Signed………………………… Date …………………………... Dr. Agnes Meroka ii DEDICATION This thesis is dedicated to all those who have lost their lives in the process of abortion. iii ACKNOWLEDGEMENT I acknowledge the almighty God for the far He has brought me in life and particularly in my course. I would like to convey my special gratitude to my supervisor Dr. Agnes Meroka for her wise counsel and guidance as I developed every aspect of this thesis. She was very instrumental in developing key areas and spent considerable time to correct and shape this piece of work. I am also grateful to all my lecturers at University of Nairobi for their academic and moral support in my course. Special thanks go to my brother Peter Gichuhi and my dear mother Muthoni for their endless support in my studies. I am highly indebted to you. Lastly my appreciation goes to my love Mercy and my lovely Blessings. iv ABSTRACT This thesis sought to address implementation of Article 26(4) of the Constitution of Kenya which qualifies abortion on certain grounds. The objective was to determine the legal and regulatory considerations on Article 26(4) and offer recommendation on necessary legislation. The methodology applied qualitative method through review of documents and other secondary sources. The study revealed that abortion in Kenya is now a human right issue for regulation as opposed to restriction. The fact that most jurisdictions allow abortion in cases of saving life or where the life and health of the pregnant woman is in danger is an indicator of recognition of pregnant women human rights. The study concludes on the need on legislation to regulate Article 26(4) on qualification to abortion without limiting the right to life of a child. The study recommends that a legislation, policy and administrative measures in securing reproductive health care as a constitutional guarantee. Further social economic factors must be addressed to aid in reducing cases of unsafe abortion. Parliament should legislate on a comprehensive law on grounds that are permissible to qualify abortion in Kenya. The law should address the balance between the rights of the mother and that of the unborn child. The study recommended measures that must be taken speedily and efficiently in implementation of the Article in line with other provisions, more so in regard to the promotion, protection, respect for and fulfilment of human rights. v Table of Contents DECLARATION ............................................................................................................................ ii DEDICATION ............................................................................................................................... iii ACKNOWLEDGEMENT ............................................................................................................. iv ABSTRACT .................................................................................................................................... v LIST OF LEGAL INSTRUMENTS .............................................................................................. ix LIST OF CASES ............................................................................................................................. x LIST OF ACRONYMS AND ABBREVIATIONS ....................................................................... xi CHAPTER ONE ............................................................................................................................. 1 GENERAL INTRODUCTION ....................................................................................................... 1 1.0 Introduction to the Study ........................................................................................................... 1 1.1 Background of the Study ........................................................................................................... 2 1.2 Statement of the Problem .......................................................................................................... 4 1.3 Research Questions ................................................................................................................... 5 1.4 Objective of the Study ............................................................................................................... 5 1.5 Theoretical Framework ............................................................................................................. 5 1.5.1 Natural Law Theory ............................................................................................................... 8 1.5.2 Liberal Feminism Theory ..................................................................................................... 10 1.5.3 Social Justice Theory ........................................................................................................... 14 1.6 Literature Review .................................................................................................................... 16 1.6.1 Abortion ............................................................................................................................... 16 1.6.2 Grounds for Qualifying Abortion ........................................................................................ 17 1.6.3 Legislating on the Grounds for Abortion ............................................................................. 20 1.6.4 Research Gap and Considerations in Addressing Article 26(4) .......................................... 22 1.7 Hypothesis ............................................................................................................................... 23 1.8 Research Methodology............................................................................................................ 23 1.9 Justification of the study ......................................................................................................... 24 1.10 Scope and Limitations of the Study ...................................................................................... 25 1.11 Chapter Breakdown ............................................................................................................... 25 CHAPTER TWO .......................................................................................................................... 27 IS ABORTION A RIGHT IN KENYA AND HOW SHOULD IT BE REGULATED ............... 27 vi 2.0 Introduction ............................................................................................................................. 27 SECTION ONE: IS ABORTION A RIGHT IN KENYA? .......................................................... 27 2.1 Qualification to Abortion in Kenya......................................................................................... 27 2.2 Abortion and Human Rights ................................................................................................... 31 2.2.1 Right to Life ......................................................................................................................... 33 2.2.2 Reproductive Rights ............................................................................................................. 35 2.2.3 Right to Information ............................................................................................................. 38 2.2.4 Right to Privacy ................................................................................................................... 39 2.2.5 Moral Rights and Public Interest ......................................................................................... 40 2.2.6 Right to Liberty and Security ............................................................................................... 41 2.2.7 Social Cultural Factors ......................................................................................................... 42 2.3 Conclusion on abortion in Human Rights Perspective ........................................................... 43 SECTION TWO: REGULATION OF ABORTION IN KENYA ................................................ 44 2.4 Regulating Abortion in Kenya ................................................................................................ 44 2.4.1 Qualifying Abortion in Kenya within the Constitution........................................................ 45 2.4. 2 Legislating Article 26(4) of the Constitution ...................................................................... 46 CHAPTER THREE ....................................................................................................................... 55 COMPARATIVE ANALYSIS OF ABORTION REGULATION............................................... 55 3.0 Introduction ............................................................................................................................. 55 3.1 World Perspective on Regulation of Abortion .......................................................................
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