Kenyans divided over new constitution

More strife, not less, is likely if Kenyans approve a constitution which allows abortion.
Martyn Drakard | 8 April 2010
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On April 1, the Kenyan parliament approved a new draft constitution which, among other things, promises more power to the people and greater respect for the rights of women and children. It also contains some clauses which directly threaten the life of the unborn. This has already become a major issue in the run-up to a national referendum, which is planned for July 2.

This is paradoxical since the government had hoped a new constitution would bring the country together and help forestall any repetition of the two months of violence early in 2008 after disputed elections. On Easter Sunday the Kenyan President, Mwai Kibaki, appealed to Kenyans to tolerate the opinions of others. The issue of abortion and the right to life appear to be dividing the country into two.

Section 26 of the new draft reads: “Every person has a right to life, and that life begins at conception.” This is contradicted in the next section which allows abortion when, in the opinion of a trained health professional (not necessarily a physician), there is need for emergency treatment, or the life or health of the mother is in danger or if permitted by any other law.

The World Council of Families (WCF) had urged Kenyan parliamentarians not to abandon the unborn. But groups like the Centre for Reproductive Rights have urged US Secretary of State Hillary Clinton to push this abortion loophole on Kenya. Pro-lifers fear that she may do this by making sure her definition of “reproductive health care” – which includes abortion -- is imposed on US-sponsored programmes.

Effectively, Article 43 of the new draft states that every person has the right to the highest attainable standard of health, which includes the right to health-care services, including reproductive health care.

Another part of the draft also creates a National Human Rights and Equality Commission, to “act as principal organ of State in ensuring compliance with obligations under treaties and conventions relating to human rights.” If abortion supporters serve on this commission, as they did on the Committee of Experts tasked with writing the draft, any Kenyan law or policy that limits abortion will be eliminated.

“An exception to a ban on abortion “for the health of the mother” is virtually abortion on demand,” said WCF communications director, Don Feder. “You can always find an obliging “health professional” who will certify that any condition would endanger a woman’s health unless the pregnancy is terminated. That’s how the mother’s-health exception works in the US”.

The issue of maternal mortality and illegal abortions is being used to argue for the legalization of abortion. More practical support for pregnant women could come in the form of a clean water supply, a clean blood supply and adequate health care. Most Kenyans do not have access to these.

A recent poll shows 70 percent of Kenyans are against legalizing abortion, while only 9 per cent support it. And in answer to the question: “When do you believe human life begins?” 77 per cent said at the moment of conception and 19 at the time of birth. Only 19 per cent support support the draft constitution and 52 per cent said they want parliament to revise it.

The National Council for Churches of Kenya (NCCK), a Protestant umbrella body, has vowed to rally Christians to vote against the draft. It cites two reasons: the proposed law on abortion, and the “kadhi” courts to handle divorce, inheritance and other civil disputes only for Muslims, on the grounds that in a secular state preference should be given to no religion. Otherwise, they say, Christians, who are the large majority of the population, should have their courts too.

The Catholic bishop of Eldoret, Cornelius Korir, told his flock to reject the draft. The Anglican head, Eliud Wabukala, supports the draft, however, quoting reasons of national unity; as does Rev. Timothy Njoya, a Presbyterian pastor, who spoke on behalf of the National Civil Society Congress, a consortium of NGOs.

At a 2005 referendum on the new constitution, where the main issue was the sharing of political power and greater popular representation, almost 60 per cent of the voters were opposed. The new draft takes these issues into account, but the ambiguous wording regarding the right to life of the unborn is leaving many Kenyans bewildered and dissatisfied.

Martyn Drakard writes from Kampala, Uganda

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