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The Proposed Constitution of Kenya, the Right to Life & other moral issues

The Proposed Constitution of Kenya, the Right to Life & other moral issues. Charles Kanjama, Advocate [acknowledging Kakeeto A. Richard LL.B (MUK), B.Phil (Urb)] . The Moral Person’s Dilemma. If one votes No, they reject a document that has good and progressive provisions.

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The Proposed Constitution of Kenya, the Right to Life & other moral issues

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  1. The Proposed Constitution of Kenya, the Right to Life & other moral issues Charles Kanjama, Advocate [acknowledging Kakeeto A. Richard LL.B (MUK), B.Phil (Urb)]

  2. The Moral Person’s Dilemma • If one votes No, they reject a document that has good and progressive provisions. • If one votes Yes, they bring into operation a document with provisions against their faith and morals. • But one must either vote No or Yes. • Either way, one must either reject a document that has many good and progressive provisions or bring into operation a document with provisions against their faith and morals.

  3. Proposed constitution: Broader Concerns • 2. (1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government. • (5) The general rules of international law shall form part of the law of Kenya. • (6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.

  4. Some international provisions • state parties to take all appropriate measures to protect the reproductive rights of women by authorizing medical abortionin cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the unborn child. (Section 14(2) Maputo Protocol signed but not ratified) • Kenya’s universal periodic review of Human rights on 6th May 2010 stressed rights of people in same sex relations.

  5. Proposed constitution: Broader Concerns • Art 20(3)(b) In interpreting the law, courts shall promote the spirit, purport and objects of the Bill of Rights. • (2) The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realization of the rights guaranteed under Article 43. • ICCPR, CEDAW, UNFPA , Maputo Protocol, opinions may become part of our law.

  6. Proposed constitution: Broader Concerns • (5) In applying any right under Article 43 (incl reproductive health rights), if the State claims that it does not have the resources to implement the right, a court, tribunal or other authority shall be guided by the following principles–(a) it is the responsibility of the State to show that the resources are not available;

  7. Proposed constitution: Broader Concerns • 27(4) & (5) Equality and freedom from discrimination includes that from dress. • 27 (8) State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.

  8. Freedom of conscience, religion, belief and opinion • Art 32(3) A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion. • Will this interfere with freedom of religion, including the right for religious groups to propagate their religion, or to maintain places of education and give religious education to their students?

  9. Freedom of Expression & Media Art 33(1)(a) – artistic creativity... pornography? Art 32(2) PSC draft – restricted freedom of expression on ground of pornography. Why did CoE remove this? Art 33(2) – Restriction for hate speech & vilification. Will it stop preaching on moral evils like homosexuality and prostitution?

  10. The Family • Article 45(1), (2) – The family is the natural and fundamental unit of society and the necessary basis of social order. Every adult has the right to marry a person of the opposite sex, based on free consent… • Bomas, Wako Draft – “A person shall not marry another person of the same sex.” REMOVED!

  11. Article 53. Children • (1) Every child has the right – (to various good things) (2) A child’s best interests are of paramount importance in every matter concerning the child. PROBLEM – Only child rights but no duties, only parent duties but no rights. s23(2) Children’s Act – Gives parents various rights including the right to give parental guidance in religious, moral, social, cultural and other values. MISSING! s21 Children’s Act – Gives children the duty to work for the cohesion of the family and to respect the parents at all times and to assist them in case of need. MISSING!

  12. Abortion Language in the Constitution Why the Contest? History BOMAS DRAFT 2004 “Section 34 (1) Every person has the right to life. (2) The Life of a person begins at conception. (3) Abortion shall not be permitted unless, in the opinion of a registered medical practitioner, the life of the mother is in danger.”

  13. Why the Contest: History… WAKO/KILIFI DRAFT (2005) “Section 35 (1) Every person has a right to life except as may be prescribed by an act of parliament. (2) The Life of a person begins at conception. (3) Abortion is not permitted except as may be provided for by an act of parliament.

  14. Why the Contest: History…. The Reproductive Health and Rights Bill 2008. Termination of Pregnancy: The separation and expulsion by medical or surgical means of the CONTENTS of the uterus of a pregnant woman before the fetus has become capable of an independent life outside the uterus. This definition deliberately rejects the human status of the unborn by use of the word “contents of the uterus”.

  15. Why the Contest: History… Harmonized Draft (Nzamba) 17th Nov. 2009 The Right To Life S. 35(1) Every person has a right to life. (2) A person shall not be arbitrarily deprived of life.

  16. Revised harmonized Draft (Naivasha) 29th Jan 2010 PSC-COE S.25(1) Every person has a right to life. (2) The life of a person begins at conception. (3)A person shall not be deprived of life intentionally except as may be authorized by this constitution or any other written law. (4)Abortion is not permitted unless in the opinion of a registered medical practitioner, the life of the mother is in danger.

  17. Proposed Constitution of Kenya COE-PSC,23th February, 2010 andpublished on 6th May 2010 Right to life 26. (1) Every person has the right to life. (2) The life of a person begins at conception. (3) A person shall not be deprived of life intentionally, except to the extent authorized by this Constitution or other written law. (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 if permitted by any other written law.

  18. Proposed constitution: Broader Concerns • The threshold for amendment of the bill of rights by popular initiative is very high: 1million signatures, IEBC verifies, passed in majority of county assemblies, a majority of the two houses, then president when it fails at parliament, then a referendum on the issue.

  19. For a moral case against COE draft see: http://www.lifematters.co.ke/the-coe-draft-%E2%80%93-troublesome-aspects-from-moral-perspective/

  20. Legal case against COE draft http://www.lifematters.co.ke/legal-case-against-coe-constitution/

  21. AT WHICH POINT I REST MY CASE!

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