Constitution shouldn’t dictate morality

By Nancy Baraza

Article 26 of the Proposed Constitution, which guarantees right to life for all and allows abortion in very limited cases where the health of the mother is in danger or where abortion is permitted by any other law, now threatens the defeat of the entire draft. This is courtesy of some religious groups who are advancing the Christian moral principle that they want the draft to reflect.

The debate that has characterised this provision is of a moral nature by the churches who argue that being the majority their will regarding abortion should be reflected in the document. This will mean outlawing abortion.

One striking thing is that the voice of the women who face the hazards of pregnancy is lacking. Another striking thing is that although the constitution is one of the legal documents in a political process through which we allow Government to regulate lives of individuals, the debate on abortion has not been influenced by the relevant and crucial jurisprudential, constitutional, and philosophical questions that should underlie such an important debate.

The arguments being advanced by the anti-abortionists raise two fundamental questions: First, whether the Constitution, or any law of the country, should be the instrument for the dominant voices in society, be they Christian or otherwise.

Etiquette and morality

John Stuart Mill, one of the greatest liberal theorists, would see the push by the mainstream Christians as advancing the "tyranny of the majority", wherein "through control of etiquette and morality, society — an unelected power — can do horrific things" to others in that society.

Second: What is the proper province of law and for purposes of the debate at hand, the Constitution on a matter like abortion?

Should it be the business of the law to regulate abortion in the manner suggested by the churches? The jurisprudential question here is: In our liberal Constitution, what should be the role of the State in matters of private nature such as abortion?

The draft by all standards is libertarian and embraces liberal principles, which guarantee individual rights and fundamental freedoms. Such rights and fundamental freedoms include right of privacy, freedom of choice and conscience, which all of us, including women, are entitled to. The question of abortion is acrimonious all over the world and various jurisdictions have had to make hard decisions, especially on individual rights of their citizens as guaranteed by the Constitution.

The churches should therefore be more accommodative to other Kenyans, including those who may obviously hold different views from theirs. Let them not kill this constitutional moment for Kenyans once more.

—The writer is the deputy chairperson of the Kenya Law Reform Commission and also teaches Law at School of Law, Kenyatta University.