The Bill of Rights in the proposed constitution does not adequately protect Kenyans

By Charles Kanjama

A constitution, in legal philosophy, is a social contract. It is the supreme document that establishes relations between the governed and the government. It is a deal between citizens on how to organise their lives together.

We can distil from all constitutions five core chapters. The three chapters dealing with the basic structure of government, namely the Executive, the Legislature and the Judiciary. Then the Bill of Rights, which set out the inalienable rights we reserve to ourselves as human persons. Then finally the chapter on citizenship, which determines how we gain the right to determine the form of government.

It is indisputable that the chapter on the Bill of Rights is the most important of the core chapters, because it establishes the basic minimum of conditions we need to effectively operate in the social sphere.

Mortality statistics

Out of the 264 articles and six schedules of the Proposed Constitution, none is so important as article 26. It begins well by declaring that every person has the right to life, and that the life of a person begins at conception. Similar wording is used in article four of the 1969 American Convention on Human Rights, ratified by more than 20 states. Likewise, Article 4 of the 1981 African Charter on Human and Peoples’ Rights, ratified by more than 50 states, is clear that every human being is entitled to respect for his life and the integrity of his person. Interestingly, Chile and Ireland, which protect the unborn explicitly in their constitutions, have one of the lowest maternal mortality statistics.

Instead of setting out clearly the limitations to the right to life, such as self-defence, criminal punishment or war, Article 26 allows any Act of Parliament an unlimited licence to derogate from the right to life. It is the perverse result of bad drafting. If the right to life becomes a statutory issue, what other clause can justify remaining a constitutional issue?

Article 26(4) then adds the crown of ignominy on the Proposed Constitution. A super-majority of Kenyans support the right to life for the unborn. So did the Parliamentary Select Committee’s proposal to the Committee of Experts (CoE). But in a classic betrayal, CoE instead gave us the poison pill of abortion coated in the sugar and syrup of a new constitution.

The problems with article 26(4) are myriad. It derogates from the right to life for ‘emergency treatment’, which is not defined. It sanctifies a single medical opinion, which can be subjective and unreasonable. It elevates any trained health professional, including nurses, clinical officers and birth attendants, into the status of a full Court of Appeal bench with unsupervised power to dispense life and death. It approves the health of the mother, which is often the avenue for abortion on demand. It even allows any Act of Parliament or delegated legislation like ministerial rules to abrogate the right to life of the unborn.

Even the exception created for the life of mother, which sounds reasonable, is unnecessary because Article 24(1)(d) already caters for all conflicts of rights situations. If Article 26(4) was not bad enough, Article 43(1) on the right to reproductive health care and Article 2(5,6) on direct application of international law are fallback provisions to introduce abortion in Kenya.

Abortion proponents will tell us that the Proposed Constitution defends, and even improves, the right to life of the unborn. This is a classic conflict of interest situation. It is the fox guarding the hen-house; the hawk watching over the hen’s chicks. Read sections 158 to 160 and 240 of our Penal Code for yourself. You will discover what the farmer and the hen did, who let the fox and hawk guard their precious ones.

—The author is an advocate of the High Court