William Maema*
The jury is out: most Kenyans are in agreement that the draft Constitution currently being debated in and outside Parliament is the best effort yet in finding an acceptable Constitution for the country after a twenty-year barren search and billions of shillings in the drain.
The draft Constitution has, against all odds, received an almost universal thumbs up from both eternal cynics and the usually antagonistic forces across the political divide.
Unfortunately, however, two vexing issues have emerged to pose a real mortal danger to the enactment of the new Constitution, namely, the perceived backdoor legalization of abortion and the entrenchment of Kadhi’s courts in the Constitution.
Whereas the charge against the entrenchment of Kadhi’s courts in the Constitution has been led almost single-handedly by Christians based on what appears to be religious rather than legal reasons, the opposition to the legalization of abortion has received the undiluted support of practically all faiths, Christians and Muslims alike.
My own take is that unless an urgent deal is struck on these issues, the fate of the draft Constitution is as good as sealed, come the national referendum in a few months’ time.
The most potent missile aimed at the draft Constitution is the perceived legalization of abortion.
As any first year constitutional law student would confirm, the Constitution is the supreme law of the land and any law that is inconsistent with it is null and void to the extent of that inconsistency. By the same analogy, a Christian would hold that the law of God is the supreme law of the universe and any human law, including any Constitution, which is inconsistent with God’s law is null and void in its entirety, irrespective of the extent of the inconsistency.
The right to life is God-given and, therefore, according to Christian thought, no human law can negate it. Granted that even the Bible recognizes the death penalty under certain circumstances, there is no known religion or civilized culture which permits the killing of innocent persons, leave alone defenseless children by their own mothers.
The drafters of the new Constitution, probably acting under pressure from the proponents of “safe motherhood” and “reproductive health” (euphemisms for abortion), seem to have misread the mood of the majority of Kenyans on this issue. Having conceded that life begins at conception and that it is entitled to protection under the Constitution, they should not have gone out on an appeasement mission to create ridiculous and untenable exceptions to the right to life. By creating such exceptions, they have literally taken away by the left hand that which they had given Kenyans by the right hand.
To allow any medical practitioner, irrespective of his qualifications, experience or moral standing to decide whether a pregnancy should be terminated amounts to handing a signed death sentence to innocent children at the hands of professional abortionists.
What constitutes “danger to life or health of the mother”? As any gynaecologist will confirm, any pregnancy, no matter how trouble-free, potentially presents danger to the life and health of the mother. For example, a pregnant woman might suffer acute loss of appetite due to pregnancy which might be construed as danger to her health or even life. Similarly, the psychological trauma of an unwanted pregnancy by any woman poses some danger to her mental and physical health. According to the draft Constitution, pregnancy should be terminated under circumstances such as these.
Abortion is also to be allowed “if it is permitted by any other written law”. This is the most blatant step towards the legalization of abortion yet. While currently such a law does not exist, there is nothing to prevent Parliament from passing such a law in future since it is already contemplated in the draft Constitution.
Kenyans have, of course, not forgotten that there is a Bill in the current Parliament’s register – The Reproductive Health Rights Bill, 2007 – which aims at making abortion legal in Kenya. Is this provision meant to pave way for the passage of that Bill?
Will the religious groups relent and support the draft Constitution? This is highly doubtful for the following reasons:-
First, most religions do not accept that the life of a mother is more precious than that of her unborn child since they both are created in the image of God and each is entitled to life independent of the other. On this basis, any qualification imposed on the right to life based on the preservation of the mother’s life or health at the expense of the child is unlikely to find favour with the religious groups. To that extent, Article 26(4) is fatally flawed and incapable of remedy by way of amendment and must be deleted.
Second, ironically, the right to life is not even a religious issue as such. It is a human rights issue and the religious groups are merely acting as the defender of what in reality is a universal value in all cultures i.e. the preservation of human life in all its forms.
Third, the opposition to abortion is premised on the belief that its legalization will usher in what the religious groups call the “culture of death” from which the Kenyan society will never recover.
Lastly, apart from it being illegal, abortion is a deep moral issue with profound psychological and physiological consequences which can only be appreciated and dealt with by the person concerned, whether the abortion was procured legally or illegally.
On the Kadhi’s courts, the opponents posit that the historical reasons that led to the Kadhi’s courts being enshrined in the current Constitution no longer exist. These courts were a political compromise between the Sultan of Zanzibar (who then ruled the 10 mile coastal strip) and the nascent independence Government to cajole that region to become part of Kenya. Being a minority faith, Muslims feared that the Government would later on renege on the promise and subject matters of Islamic personal law (marriage, divorce and succession) to the secular judicial system. The Government was forced to guarantee this promise by entrenching the Kadhi’s courts in the Constitution.
Unlike in 1963, Muslims are today fully integrated into the Kenyan society and it would be unthinkable and foolhardy for any government (or Parliament) to ever contemplate antagonizing them needlessly by denying them the right to have Kadhi’s courts even if they were not enshrined in the Constitution.
The majority of Kenyans seem to be saying that Kadhi’s courts should continue to exist but they should be established by the same law under which other courts of similar level are established, that is, the Judicature Act and not the Constitution.
Parliament can salvage the draft Constitution by recommending the above amendments to the Attorney General within the thirty (30) day window of opportunity provided for by the Review law. If it fails to do so, we shall, unfortunately, be back to square one, which is a big pity considering the huge financial and intellectual capital that has gone into this process.
Will Parliament do it? Only time will tell.
*The writer is an Advocate of the High Court of Kenya, wmaema@ikm.co.ke
Disclaimer: Views expressed in this section do not necessarily represent the opinions of CISA.
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