The Bill of Rights in the Proposed Constitution adequately protect Kenyans

By Kibe Mungai

Prime Minister Raila Odinga is fond of pointing out that if you say everything is a priority, nothing will be a priority in the end. This analogy applies with equal force to rights. If every important wish or interest is categorised as a right, then real rights lose value or utility. Nowhere is this truism starker than in the Bill of Rights under the Proposed Constitution and the heat generated by it is evidence that the struggle for a new constitution could well fail or founder upon the matter.

Generally speaking, the expanded Bill of Rights has met the approval of many people but Article 26 which deals with the right to life is certainly the major bone of contention for the Church leadership and many people with conservative sensibilities. Article 26 provides as follows: (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 authorised by this Constitution or other written law; and (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.

Power elite

In normal circumstances, when we speak about rights we have in mind real human beings who can crawl, walk or breathe on their own as opposed to foetuses or the unborn.

Read together with the right to human dignity under Article 28, the guarantee of right to life under clauses (1) and (3) of Article 26 will go a long way to ensure that life is worth more than it usually is in Kenya when you fall under the suspicion of powerful politicians and the police.

The keener you listen to the abortion controversy the harder it is to resist the conclusion that the heat is being generated by the ideological clash as well as the rising intolerance which is partly traceable to the 2005 referendum campaigns. Instructively, in June 2005, the Ufungamano Multi-Sectoral Forum, whose members include the leading lights of the religious wing of the ‘Red’ campaign, published a draft constitution whose Article 14 on the right to life and human dignity provides as follows: Article14 (1) Everyone has a right to life, which begins at conception; and (2) Everyone has inherent dignity and the right to have that dignity respected and protected.

Notably, there is no mention of the prohibition of abortion and even the reference to life beginning with conception seems to be an after-thought.

When you think about it, the Church is to blame for trying to introduce irrelevant matters into the constitution only to be outsmarted by the gender warriors who had the ears of the liberals in the Prof Yash Ghai-led Constitution of Kenya Review Commission and the Nzamba Kitonga-led Committee of Experts. In truth, getting the phrase about life beginning at conception adds no value to the right to life. The Penal Code (Cap 63) prohibits abortion in near-absolute terms. By insisting that the prohibition of abortion be contained in the Constitution, the Church was bound to get nothing in practical terms. Tragically, their insistence has succeeded in providing for a valueless prohibition, which contains exceptions that will sooner or later require MPs to remove the near absolute prohibition of abortion under the code of criminal law. Viewed this way, pro-choice activists are the real winners under Article 26 of the draft but it would be foolish to reject the Proposed Constitution because when all is said and done the Church and its supporters were simply tactless on this issue and the Constitution is not a moral code whether or not we are a Christian dominant country by happenstance.

—The writer is an advocate of the High Court