Article 26 & The Abortion Controversy


“Right to Life.” What started as a straightforward and noble protection of the right to life—a constitutional ban on abortion except where medically necessary to save a woman’s life—has been turned completely on its head. In the latest version rewritten by the “Committee of Experts” (CoE), the “right to life” has been slyly transformed into a constitutional right to abortion.

Comparing the versions of earlier drafts shows what has happened. The original Harmonised Draft (November 2009) and the Revised Harmonised Draft (January 2010) submitted by the CoE to the Parliamentary Select Committee (PSC), both protected the “Right to Life.” Indeed, it is the first freedom listed in the Bill of Rights: “Every person has the right to life.” Under the Constitution of Kenya Review Act of 2008, the CoE was required to submit the draft to the Parliamentary Select Committee (PSC) for its “deliberation and consensus building on the contentious issues.” This occurred at January’s important meeting at Naivasha. The PSC enhanced and clarified the “Right to Life” by adding that “The life of a person begins at conception” and specifically prohibiting abortion except to save the mother’s life: “Abortion is not permitted unless in the opinion of a registered medical practitioner, the life of the mother is in danger.”This reflected a consensus that Kenya’s constitution should protect life and prohibit abortion. At this point, the Constitution of Kenya Review Act of 2008 directed the CoE to “revise the draft Constitution taking into account the achieved consensus” and submit the draft to the PSC, which would then lay it before Parliament.

The CoE did not do this. It did not revise the draft to reflect “the achieved consensus” at Naivasha. On the contrary, the CoE hijacked the “Right to Life” entirely, turning it instead into a right to abortion. Article 26(4) now provides: “Abortion is not permitted unless, in the opinion of a trained health professional, there is a need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.”This provision completely negates the right to life in four ways. First, it changes the decision-maker from a “registered medical practitioner” to any “trained health professional.” Thus, it need not be a doctor or nurse who makes the medical judgment that an abortion is necessary; it can be any professional “trained” in “health,” whether certified or not. This is code language for permitting abortionists to decide whether an abortion should be permitted.

Second, the PSC consensus at Naivasha only permitted abortion when “the life of the mother is in danger.” The CoE re-wrote this to permit abortion when “the life or health” of the mother is in danger. What does “health” include? How broad is this exception? Unfortunately, America provides a bad example. The phrase “health of the mother” is a term-of-art in American constitutional law concerning abortion. It means that the mother may choose abortion for any physical, emotional, psychological, social, financial, or “family” reason she chooses. The effect, in America, is to permit abortion for any reason, throughout all nine months of pregnancy, as a matter of constitutional right.This language is not in the U.S. Constitution, but comes from the U.S. Supreme Court’s infamous decision in the case of Roe v. Wade, which created an unlimited right to abortion in America by using a trick definition of “health” in a companion decision, Doe v. Bolton. But the “health of the mother” language is in the proposed Constitution of Kenya. It is therefore very likely that this language may be interpreted by courts and government officials in Kenya as creating a right to abortion for any reason throughout pregnancy, after the fashion of America.

Third, the CoE’s new version explicitly provides that abortion may be made legal if “permitted by any other written law.” In other words, the constitutional right to life may be entirely nullified, simply by passing a new law, without changing the constitution. This means that the right to life is really no constitutional right at all.Fourth, the exception for “emergency treatment” means something more than protecting the life or health of the mother. Otherwise, this language would have no effect. The CoE added this language. To what does “emergency treatment” refer, if not protecting life or health? A likely answer is that “emergency treatment” is code language for “emergency contraception” that works by producing an early abortion after conception has occurred.

There is one more provision of the current draft that further reinforces the right to abortion. Under Article 43 of the CoE’s latest version, “every person” has the constitutional right to “health care services, including reproductive health care.” In America, the phrase “reproductive health care” is polite language for abortion. In America, one of the debates over health care is whether abortion is truly “health care.” “Reproductive health care” is the code term that is used when abortion is what is meant.Because Article 43 of the current draft appears to provide an affirmative right to “reproductive health” services, this language probably provides a social-welfare entitlement to publicly-provided or publicly-funded abortions. In short, the current draft provides a constitutional right to abortion, for any reason, throughout all nine months of pregnancy, paid for by all Kenyans.

These are dramatic changes from the earlier versions of the proposed constitution. Nothing like this was in any of the earlier drafts. Article 26 is a completely new invention.It completely undermines the right to life. Indeed, it produces its opposite. It creates a right to abortion 

Read Njoki Ndungu’s response

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18 thoughts on “Article 26 & The Abortion Controversy

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  3. Pingback: Njoki Ndungu’s Response to Article 26 Site Post « Muigwithania 2.0

  4. I don’t depend of politicians to interpret the constitution for me. I read at and interpret it.

    The documents that we are comparing at this point is the current constitution vs. the draft, not the draft vs. the earlier versions. The earlier ones could not reach this referendum stage and to assume that they will next time is to rely too much on hope. The process of amending the constitution will not be too different from the process of passing the draft that we have now; so it does make sense to pass the good that is in the current draft and try and amend it later.
    I repeat:
    Proposed constitution Sec 26 (1): The life of a person begins at conception.

    What we have now: Penal Code Sec 214: A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not and weather the naval-string is severed or not.
    The proposed constitution Sec 26 (4): Abortion is not permitted, unless 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, or is permitted by any other written law.

    What we have now: Penal Code Sec 240: A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard for the patient’s state at the time and to all the circumstances of the case.

    We are comparing “A person vs. a trained health care professional”

    2. The point is that in Kenya a registered medical practitioner is at best found in a district hospital. To hope that the trained health care professional in a rural clinic who meets a condition that requires a medical decision has to plead “the constitution” and lets a woman die because he/she is not allowed to attempt any life saving intervention is beyond belief. The trained health care professional is allowed by law to do his/her best to deal with accidents victims, infections, poisoning and all sorts of emergency interventions that are required to save life; however when it comes to an issue of saving the life of the mother because of say, an ectopic pregnancy, then we are suggesting can’t use that skill we so readily allow in all other scenarios. (According to KDHS 2009, only 43% of the country birth is done under the care of a trained health professional. 47% done at home or non-trained health professional). Question: Who do you suggests makes a decision when there is a medical emergency to save the life of the mother within a rural health facility?
    3. Don’t imagine that everybody is blindly opposed to choice. In fact I am quite happy that a statute that allows for abortion should be made. Many women undertake abortions everyday in this country for many reasons. Is law going to magically reduce abortions? Or probably just make it more dangerous. Even the woman who undertakes abortion does not like it, how can we suggest that the answer to every social/moral problem is to criminalize it? In the fine continuum between guilt and innocence there many options; one of the more glaring ones is for preachers to undertake their tasks with more vigour so that we have less abortions; for fathers to be more accepting of children born out of wedlock; for churches and schools to be more accepting of unmarried pregnant girls; for the Children Act to apportion some of the child care responsibility to the father if a child is born out of wedlock… Abortion is a result of many systemic failures and dealing with the root causes makes more sense. And our laws should progressively take care of these realities and change over time so that finally we never have an abortion.

  5. It is interesting that we should find ourselves both opposed to this document but from two very different points of view. I agree fully with your interpretation, and the historical account. I am pro-choice which is to say I am glad that this provision is in the constitution.

    However, what your analysis shows is the deceit, the cunning with which the CoE and their higher-ups are pushing this document. It is one of several examples of the CoE venturing into uncontroversial territory and blatantly ignoring both the wishes of the people, and that of the PSC.

    To realise this deceit is very important as it shows the nia mbaya inherent in other provisions of the constitution, e.g. the international law bits.

  6. If the CoE would just come out in the open and say they are Pro Life nobody would have a problem.But trying to sneak pro life laws is just sic!!

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