Kenya ratified the Maputo Protocol in 2010, the same year it adopted a new Constitution. It kept two reservations. RFLD’s report Lifting the Reservations: nine country briefs on the Maputo Protocol shows that one of them protects a narrower position than the Constitution itself, and that the African Commission has already asked Kenya to withdraw it.
Key facts
Kenya ratified the Protocol on 6 October 2010. It reserved two provisions:
- Article 10(3), which asks States to reduce military spending in favour of spending on social development
- Article 14(2)(c), which requires States to authorise medical abortion in cases of sexual violence and where the pregnancy puts the mother’s life or health in danger
Kenya considers these provisions inconsistent with its domestic legislation on health and reproductive rights. Its 14th periodic report was examined at the 87th Ordinary Session of the African Commission in May 2026. The concluding observations are expected to be published at the 88th Session.
What the reservation does
The African Commission’s Advocacy Framework is direct about the effect of the reservation on Article 14(2)(c). It “leaves women and girls to procure unsafe abortions, increasing maternal mortality”. When the treaty’s guarantee is set aside, women who fall within its cases have no regional standard to rely on.
Why it can be lifted
Kenya’s Constitution of 2010 already covers much of the same ground. Article 26(4) “permits abortion where, in the opinion of a trained health professional, there is need for emergency treatment or the life or health of the mother is in danger”. The brief concludes that the reservation “protects a narrower position than the Constitution itself”.
That makes Kenya’s reservation difficult to defend on its own terms. A State that reserves a treaty provision because of its domestic law is expected to show that the law is in fact different. Here, the supreme law points the same way as the Protocol.
There is also a general rule at stake. Article 27 of the Vienna Convention on the Law of Treaties states that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
The Commission has already spoken
In its 2022 concluding observations, the African Commission recommended that Kenya consider withdrawing the reservation to Article 10(3). It went further on Article 14(2)(c), recommending that Kenya withdraw the reservation “since Article 26(4) of the Constitution permits abortion for the same reasons”.
The distinction matters. On military spending, the Commission asked Kenya to consider. On medical abortion, it asked Kenya to act. The brief treats the 2022 recommendation as the main lever for advocates.
Questions for dialogue
- Why does Kenya maintain the reservation to Article 14(2)(c) when its Constitution permits abortion on similar grounds?
- What is the timetable for implementing the 2022 recommendation?
- What guidance is given to health workers on applying Article 26(4)?
- Would Kenya consider withdrawing its reservation to Article 10(3)?
The ask
The brief asks the government to implement the 2022 recommendation and withdraw the reservation to Article 14(2)(c). It asks Parliament to pass a resolution supporting withdrawal in line with Article 26(4) of the Constitution.
The national human rights institution is asked to monitor the implementation of the concluding observations that follow the 87th Session. Civil society is encouraged to use those concluding observations in maternal health advocacy at both county and national level.
A practical route to withdrawal
Withdrawing a reservation does not require the consent of any other State. The Minister of Foreign Affairs sends a written notification to the Chairperson of the African Union Commission, and the withdrawal takes effect on receipt. The report’s toolkit includes a model notification and a model letter to a minister. It also offers a model parliamentary question and a model request to a national human rights institution, all of which Kenyan organisations can adapt.
Kenya would not be the first. Rwanda withdrew its reservation to the same provision, Article 14(2)(c), in 2012. Readers who want to see how Kenya’s wider legal framework on women’s rights compares with its neighbours can consult RFLD’s country profiles on women’s rights laws.
About the report
This article draws on RFLD’s report Lifting the Reservations: nine country briefs on the Maputo Protocol, published on 4 October 2026. Read the summary, download the English edition or the French edition.
