Tuesday May 4, 2010

Unveiling of Kenya Constitution with Abortion Provisions Set for Thursday

By Peter J. Smith

NAIROBI, Kenya, May 4, 2010 ( – The new proposed Kenyan Constitution is set to be unveiled on Thursday. Meanwhile Christian leaders are getting in full swing to vote “no” on the upcoming referendum on the document, over the inclusion of provisions which they say open the door for a legal right to abortion and would harm religious equality and justice by setting up a parallel legal system for Muslims.

Kenya’s attorney general Amos Wako will make the draft constitution publicly available on Thursday for Kenyans to consider. The Interim Independent Electoral Commission will then schedule and conduct a popular referendum, which will take place within 90 days.

Efforts to draft a new constitution resulted from a power-sharing deal between Mwai Kibaki, the president, and his rival Raila Odinga, the prime minister, and was designed to resolve the post-election violence in 2008, where approximately 1300 people were killed in two months of bloody fighting.

But the constitution that was drafted by a panel empowered by Parliament to do so, includes several provisions Christian leaders believe will eventually abolish Kenya’s strict abortion ban. Leaders from the National Council of Churches of Kenya, the Anglican Church of Kenya, and the Catholic Church, have vowed to oppose the constitution.

The draft language allows two critical exceptions for abortion, which critics see as going beyond the “life of the mother” exception that currently exists in Kenyan law. The proposed constitution would permit abortion if the “health of the mother is in danger,” “or if permitted by any other written law.”

Pro-life forces say, however, that the term “health” is so broad that the use of the term could pave the way for effective abortion on demand in Kenya, as it has in many other parts of the world.

In addition, the phrase “permitted by any other written law” could further open the door to abortion, since the constitution also says that the international treaties to which Kenya is a signatory (some of which have been interpreted to include abortion “rights”) are binding law.

Marie Smith, Director of the U.S.’s Parliamentary Network for Critical Issues (PNCI), expressed concern that, “International pro-abortion organizations are manipulating and distorting treaty obligations to advance the abortion agenda claiming access to abortion is a country’s ‘obligation’.”

Under the proposed constitution, the Kenya National Human Rights and Equality Commission has the responsibility of “ensuring compliance with obligations under treaties and conventions relating to human rights” on behalf of the state. But Smith said that he human rights commission “will easily be manipulated to advance legalized abortion.”

Kenya has signed – but has not yet ratified – the 2005 Maputo Protocol of the African Union, which says that participating states must, “protect 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 unborn child.”

The health exception of the Maputo protocol could, therefore, provide yet another backdoor for introducing practically unrestricted legal abortion into Kenya through the human rights commission.

It is likely that Kenya will face enormous pressure to comply with the abortion-mandates of international treaties, which, while not having an explicit mandate for abortion, have been interpreted by standing committees to include one. Kenya is a signatory to the Convention on the Elimination of Discrimination against Women (CEDAW), which makes no mention of a right to abortion: but this has not stopped the CEDAW committee from telling Kenya in 2007 that they had a treaty obligation to establish “access to safe abortion.”

An April analysis from the global research firm Synovate showed that 64 per cent of Kenyans support the draft constitution. However, Christian leaders are determined to use their influence and numbers to change that. National Council of Churches of Kenya General Secretary Canon Peter Karanja announced that “the Church has numbers to push for the rejection of the new law” and would use Sunday services, weddings, and funerals to educate their flocks to vote “no” on the referendum.


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