Njoki Ndungu’s Response to Article 26 Site Post

Njoki Ndungu

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.


Member of Committee of Experts

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5 thoughts on “Njoki Ndungu’s Response to Article 26 Site Post

  1. In his article on 23rd May 2010, YES lawyer Kibe Mungai observed that the Church is to blame for trying to introduce irrelevant matters into the constitution only to be outsmarted by the gender warriors (FIDA?) who had the ears of the liberals (Njoki??) in the Prof Yash Ghai-led Constitution of Kenya Review Commission and the Nzamba Kitonga-led Committee of Experts.

    Viewed this way, pro-choice activists are the real winners under Article 26 of the draft. See Kibe’s article here:http://www.standardmedia.co.ke/InsidePage.php?id=2000010066&cid=591&story=The+Bill+of+Rights+in+the+Proposed+Constitution+adequately+protect+Kenyans

  2. Interesting points-This draft constitution in my humble opinion has so many things that could have been taken care of by ACTS OF PARLIAMENT.The reason we have so much acrimony is because we have constitutionalized so may issues that actually have no business being in the constitution.What ever happened to having a short vague constitution and building solid laws behind it .

    Anyway you can follow more discussion on our FACEBOOK page- Notes

  3. Very nice and *mechanical* steps for “analyzing” the current and proposed constitution . Seven things, seven things, heh-heh. I wish the world were cut out that way…..Oh, what naivte!!! The law is no panacea and indeed reaches its limits when confronted with politics. Ah, such naivte!

  4. 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.

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