International conventions open doors for homosexuality, abortion

Ann Mbugua

Forget the belaboured argument that the Proposed Constitution legalises procurement of abortion via the exception "when the life of the mother is in danger". The window to mass abortion lies elsewhere — international laws and conventions.

Whereas Kenya, as part of the global community, can embrace international law and conventions at will, some conventions open doors for abortion and homosexuality.

And what is worrying is the reality the Proposed Constitution accommodates international treaties and conventions ratified by Kenya "as part of the law of Kenya".

Chapter One Section 2 (5) and (6) opens doors for entrenching international law, treaties and conventions as part of the law of Kenya without scrutiny or consent of Parliament.

"The general rules of international law shall form part of the law of Kenya, while any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution," they state in part.

What is more, there is no saving clause to the effect that if such rules are inconsistent with the constitution, they shall not form part of our laws. Many conventions have elevated abortion the world over under the guise of "human rights".

Kenya has signed and ratified treaties and conventions, which open doors for abortion and homosexuality to be entrenched in our laws.

For example, Cedaw (Convention on Elimination of Discrimination against Women) adopted by UN Assembly in 1979 and entered into force in 1981. Kenya signed the convention in 1981 and ratified it in 1984. Article 12 of Cedaw, the right to reproductive healthcare, obligates governments both to ensure availability of reproductive health services and remove legal barriers to reproductive healthcare.

As a follow up, the Proposed Constitution advances the case of abortion in Article 59 (g) by creating the Kenya National Human Rights and Equality Commission to ‘act as the principal organ of the State in ensuring compliance with obligations under treaties and conventions relating to human rights".
In Maputo, Mozambique, a protocol was adopted by African Union on July 11, 2003. On November 25, 2005, the protocol entered into force. Kenya is among the 45 countries that signed the protocol pending ratification.

Article 14 of the Maputo Protocol deals with "Health and Reproductive Rights" and demands total abortion legalisation by the nations who have ratified it.

"States/parties shall ensure that the right to health of women, including sexual and reproductive health, is respected and promoted. This includes, protecting the reproductive rights of women by authorising medical abortion in 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 foetus," it states in part. The Maputo Protocol means abortion on demand for an entire continent. This is the first time an entire continent will have enshrined a right to abortion.

Article 27 of the Vienna Convention on the Law of Treaties states that a party may not invoke the provision of its internal law as justification for its failure to perform a treaty.

In other words states cannot invoke their internal laws and procedures as a justification for not complying with international obligations.

Similarly, there is a general duty for states to bring domestic law into conformity with obligations under international law — which brings me to the Kenyan instance. Parliament ought to be involved before ratification of treaties and conventions.

This will ensure that the Executive does not alter Kenyan law without the consent of Parliament and Kenyans. Unfortunately, the proposed law ignores this factor.

The writer is an advocate of the High Court of Kenya.