A Response to:http://muigwithania.com/2010/04/29/public-discourse-ethics-law-and-the-common-good-abortion-the-kenyan-constitution/
The Abortion issue is not as cut and dried as it appears in your summary and therefore I will take you through the process we undertook as the CoE to reach the wording of S.26.
1. Throughout this process and in all its deliberations the Committee of Experts has been consistent with regard to the provisions on the Right to Life, which is that everyone has the right to life and that life may not be taken away unlawfully unless provided for under any written law.
2. The above position is what was reflected in the draft which was submitted to the PSC in January of 2010. There was no reference to the definition of life or any provision with reference to Abortion in this Draft. Although many Kenyans wanted the death penalty included, and a few wanted abortion mentioned (and even then there were two different positions – one outlawing it completely and the other providing it on demand), we decided in line with current international constitutional practice that these issues are best dealt with by legislation and not in the constitution.
3. While the PSC were in Naivasha they were approached by two different groups from the Churches (Catholic and some Protestants). These groups persuaded the PSC to include a new susbsection 2 ” Life begins at conception” and a new subsection 4: ” Abortion is not permitted, unless in the opinion of a medical registered practioner, the life of the mother is in danger.”
4. Please note that according to the CKR Act of 2008, the PSC was to reach consensus only on the chapters relating to the Executive, Legislature, Devolution and related chapters of Representation and Public Finance and Transition. If we had known that they would deal with other chapters in detail, we would have requested the presence of experts, so as to ensure that the inclusion of any new section or deletion of others, would have been done with due regard to any unintended or other legal implications of the same. Some of the challenges we are now facing from different sectors (not just the church) have come about because of the absence of expert advice with regard to come changes made in Naivasha.
5. In February 2010, the PSC and the CoE met to have discussions particularly with regard to the chapters which the PSC were not mandated to revise and also to seek clarification on areas that the experts had legal issues with throughout the Draft.
6. At this meeting the CoE raised four issues with regard to S26.
Issue a) The definition of that life begins at conception is one held by most Christians (not all) but not shared by Muslims, Hindus, Traditionalists, Atheists and other Kenyans. This means that this article is in direct contravention with the article on Freedom of Religion.
The response from the PSC was that they were aware of the conflict, but as the Constitution is a negotiated process they wanted to concede some ground to the Church. They stated those who had issues with it could always go and seek redress in courts.
Issue B) Conception and Pregnancy are not the same thing. Conception occurs when the egg is fertilized by the sperm. Pregnancy occurs when the fertilized egg implants in the uterus about 10 days later. This puts into jeopardy the ordinary contraceptive pill or injections used for family planning, as they inhibit not conception but implantation. The definition that life begins at conception therefore could provide for grounds to declare contraception as unconstitutional. This may be the intention of the right wing Roman Catholic church that does not believe in contraception, but this is not true of other churches. Alongside ordinary contraception, this definition will bring difficulties for rape protocol procedures which include emergency contraception and IVF infertility procedures, both of which may interfere or enhance, whichever the case may be, with the processes of conception but not with pregnancy.
Issue c). The wording given by the church to the PSC, confines the treatment considered under S26 (4) to that done by a doctor. The CoE was concerned that in Kenya access to Doctors, particularly in poor peri-urban, low income and rural areas was rare, and would limit this service only to women who can access doctors in urban or middle to high income patients. We advised that after consultations with the ministry of health, we thought it better to use trained health professionals who are nurses or clinical officers as is done for other health services in areas where there is no access to doctors.
Issue d) The wording given by the church to the PSC, only provides for a situation where the mother is dying. The CoE were concerned that this would prevent women from getting post rape care treatment, treatment for normal miscarriages, inducement for fetal death cases, and other serious cases where the mother may not be on her deathbed, but her health in relation to future fertility, cancerous infections etc may be threatened. We submitted a report on this to Parliament, outlining the serious health problems that we had considered.
Issue d) The wording of article 26(4) did not include reference to current Acts of Parliament that had a direct correlation to the issue at hand, namely the Penal Code (sanctions for criminal abortion), Sexual Offences Act (post rape care treatment) and The responses for b,c and d above, from PSC was that they had not for seen these unintended consequences of the definition and the request to the CoE was to reword the entire Article to ensure that such kind of problems would be resolved. The PSC however was clear that the bottom line is that Abortion on demand should not be provided for.
The Committee therefore reworded the sections as follows, I have underlined the changes that were made on the basis of the above concerns:. “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.”
I do believe we have remained faithful to the request of the PSC. You can confirm all of the above this from reading the Hansard records of Naivasha (PSC), Karen (PSC/CoE) and the CoE general Hansard record:Having commented to the one area of the Proposed Constitution you have asked me about, please allow me to share with you some concerns I have with your discussion forum.
1. I think the conversations begin with assumption of bad faith. The language used that the CoE did something “slyly”, or “hijacked” is very negative. It is important to note that the CoE and not the PSC are the framers of the Draft, and we had to think very carefully on each issue. As you can see from above we did an enormous amount of research and consultation to ensure we both identify a legally problematic clause and attempt resolve the same, in a way that balances all interests and concerns. At the CoE we worked to produce a document of positives – rights, obligations, clarity and balance. We worked on what Kenyans want in a new constitution. The discussions around your issues are in negatives – fears, misinterpretation of legal terms, suspicion and anger. You begin from what you don’t want in a new constitution. As a result one tends to start with a hard line position on an issue rather than an open minded one i.e. is there another side of this story or is this something I should find out more about? Take for example the definition of Reproductive Health. Your discussion assumes that RH is abortion. The truth is RH includes a whole range of conditions, and it is a huge part of Health as a subject. Even in our National Budget, the vote on Health comes in several divisions including one on Reproductive Health. This is because it takes a huge chunk of the health budget. RH includes menstruation and related complications, infertility, impotency, pregnancy and pregnancy related issues, maternal health, maternal mortality, ante natal care, childbirth, post natal care, cervical, testicular and prostate cancer, cancer of the uterus and related conditions, fibroids, Female Genital Mutilation, fistula, Sexual violence and rape, menopause regulation, etc. etc.
2. Before you decide YES or NO, and because the choice is yours as an individual Kenyan to make, ask your members to do the following as an exercise that will ascertain objectivity and not subjectivity with regard to the Document:
1. Make sure you are reading the correct version. This is the Proposed Constitution as published on 6th May 2010.
2. Draw up a list of why we need a new Constitution. State at least 7 grounds.
3. Does the Proposed Constitution address the concerns in your list?
4. Draw a list of at least 7 things you like about the PC. Why?
5. Draw a list of at least 7 things you DO NOT like about the PC. Why? How do you think they should be addressed?
6.Understand the choice you are to make on 4th August: Kenyans will be choosing between the current constitution and the Proposed constitution. There is no third choice. Which ever choice you make, either document can be amended.
7. Think about what will happen after August 4th if:
* We remain with the current constitution
* We pass the proposed constitution
8. If you get stuck at any stage of this exercise start again from the beginning.
This is an exercise for civic education. You will find at the end of the exercise you will have analysed both the current constitution and the proposed one and that you will become much more aware of the nature and purpose of the constitutional review.
MS. NJOKI S NDUNGU
Member of Committee of Experts
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