Kenyans divided over new constitution

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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