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Here is the trouble with Kihika's contentious bill

By Michael Ndonye | August 7th 2020 at 00:00:00 GMT +0300

A Trojan horse is a deceptive stallion that Greeks used to enter the city of Troy after 10 years of unsuccessful siege. Later, the Greeks pretentiously retreated and left behind a wooden horse.

They lied to the people of Troy that the horse was a peace offering to their goddess of war.

The Trojans were, however, warned against this deception by god Apollo’s priest-seers; Laocoon and Cassandra, but they did not heed.

The horse, carrying Greek soldiers, was given a gate pass into the city. The Greek soldiers captured and subdued the city.

I have carefully read Susan Kihika’s Reproductive Healthcare Bill, and it’s a Trojan horse — a progressive Bill on reproductive healthcare, but with controversial bits which are better handled not by law but by moral agencies.

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In 2014, a similar bill failed because the author didn’t consult moral gatekeepers — a very painful term to deniers.

After its public hearing, the clergy cast aspersions which Bill’s supporters; the progressive human rights advocates and atheists have been dismissing. However, keen scrutiny exposes details wherein the devil rests. The proponents are not ready to explain these details to stakeholders.

In Kenya, legislators have never realised that morality is agreed upon and cannot be legislated and enforced.

Termination of pregnancy, which is the contentious issue in the Bill, is a moral issue more than a legal issue. Unless the religious leaders are brought on board when making legislation on such issues, they will always oppose it.

Moral intruder

Invariably, our modern moral intruder is the law, an epistemological discipline that has refused to accept its limitations. It goes around solving problems of humanity using a judicial hammer because it views every problem in the world as a legal nail. How long are we going to deny the fact that the moral wherewithal lies with its agencies?

The Kihika Bill is extremely elaborate on In-vitro fertilisation and surrogacy, but it does not commit to unravelling issues around the contentious part on termination of pregnancy.

I noticed that the author is shying away from defining such terms as ‘abortion’, ‘post-abortion care’ and ‘termination of pregnancy’ while contentedly defining ‘family planning’, ‘maternal care’, ‘adolescent,  ‘parent’ and over 30 other terms in the document.

It also fails to guide on how the abortion will be done, its consequences and the foreseeable legal implications. It leaves it open to the ‘medical practitioners’ to decide on what to do with the body of a woman, and anyhow.

The Bill is also reckless in stating that a trained professional who has ‘a conscientious objection to the termination of a pregnancy’ should refer the patient to the one ‘who is willing to provide this service’.

It means the Bill lacks faith in the ‘trained medical practitioner’ and does not go further to explain circumstances under which the practitioner may refuse to carry out the exercise.

The assumption is that the said practitioner turns down their services on the grounds of their religious believes — a blatant dismissive assumption.

Cultural institutions

As if that’s not enough, the proposed law methodically leaves out the role of critical cultural institutions like schools and religious organisation in the reproductive health of adolescents. It places spiritual, moral guidance and other foundational mentorship roles in the hands of the national and county governments.

That’s a deliberate disparagement of the greater role that these institutions, where the adolescents’ good part of lives, is concentrated, play.

The assumption that ‘outsiders’ care about adolescents more than those who mentor and guide them in Sunday schools, madrassas and Sabbath school is allegorical blindness.

As such, I found that the whole of part on the reproductive health of adolescents is incomplete and looks like a partial copy paste from somewhere without adapting it to Kenyan situations.

The proponents of the Bill argue that abortion is enshrined in our Constitution. However, faith organisations, lobby groups and churches disputed the said Article 20(4) of the Constitution. This stand has not changed, and the Constitution hasn’t yet gained moral sanity to be used as a reference on matters abortion.

The self-contradictory law of the land acknowledges that life begins at conception; that everyone has right to life; and that no one has the right to end another’s life but creates latitude under which that life can be terminated by a qualified medical practitioner.

That’s neither here nor there because most pregnancies are ‘unwanted’ and thus are candidates for termination under such edicts. Don’t you know that in this country, social, political and economic crimes are done procedurally, and they meet all ISO standards?

My take is this; passing a law that only requires ‘professional’ admission for a life to be terminated is opening Pandora’s Box. That should not be allowed — all stakeholders’ views must be considered.

Dr Ndonye is a Political Economist of Media and Communication

Susan Kihika Abortion bill Senate Reproductive Healthcare Bill
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