BY HERMAN MANYORA
Whether by default or design, the debate on the draft constitution seems to be fixated on the chapter concerning the Executive.
But the real danger, in my view, lies in the provisions that threaten the very instistitutions we are struggling to protect; the basic of which is family. Kenyans ought to pay more attention to Chapter six, which deals with the Bill of Rights. For example, Section 37 (1) provides as follows:
The state shall not discriminate directly or indirectly against any person on any ground, INCLUDING race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
The use of the word INCLUDING means the list is not exhaustive. In fact, you could remove the word INCLUDING and replace it with E.T.C. (Et Cetera) at the end of the list. Now, this leaves room for somebody to add the word SEXUALITY on the list and thus openly include homosexuality and same-sex marriage. This is more so if read together with the provisions of section 28(3) (a) and (b) of the same chapter.
28.3 (a) the rights belong to the individuals and are not granted by the State.
28.3 (b) the rights set out in the draft constitution do not exclude other rights and fundamental freedoms not mentioned in the draft.
And neither does the provision of section 42 (a) help:
42 (a) Every adult has the right to marry a person of the opposite sex, based upon the free consent of the parties
The right provided for under this section is that of marrying a person of the opposite sex. Now, a right may be enjoyed to the full (by marrying a person of the opposite sex) or partially (by marrying a person of the same sex) or not enjoyed at all (by not marrying).The point here is that a right grants ‘a higher thing’ which might be denied.
An example is a right that may be granted to a prisoner stating that the prisoner has a right to three hours of sunshine or has a right to three meals a day. The prisoner may choose to enjoy the right to the full by having the three hours of sunshine or partially by having one hour of sunshine, or not at all by staying in his/her cell. He/she may equally choose to have the three meals or skip one meal or even have none. So once a right is granted, it is up to the person to enjoy it, or go for the lesser option.
It is important to examine such loopholes because some clever activist may exploit them to have the courts rule in favour of homosexuals, lesbians and abortionists. This threat could also come from parliament, which could enact laws that allow for these obvious ills. Parliament is particularly most vulnerable given that the draft proposes to pack the legislature with nominated persons, most of who are schooled in lobbying.
With so many activists in Parliament, our usually ‘lazy and dumb’ MPs will be outsmarted into legislating in favour of the heavily-funded agenda promoting the rights of homosexuals, lesbians and abortionists.
The new Constitution must guard against this onslaught, otherwise the family, as we know it will disappear.
In order to do this, the Constitution must come out clearly and state in plain terms that homosexuality and abortion are not only criminal offences, but they are also unconstitutional.
I suggest the following:
a) Every adult has the right to marry provided that such a marriage shall be between consenting adults of the opposite sex.
b) Not withstanding any provision in this Constitution, homosexuality and same sex marriage shall not be allowed in Kenya.
c) Parliament shall not make any legislation that legalizes or recognizes homosexuality and/or same-sex marriage
d) Any change to these provisions shall be through a national referendum
And on abortion I suggest the following:
1) Every person has the right to life
(a) Life starts from conception to death
(b) Parliament shall not make any legislation that allows abortion
(c) Any change to this provision shall be through a national referendum.
I therefore invite other Kenyans to come forward and scrutinize the chapter on the Bill of Rights and point out the dangers posed to the family and society in general.
(Herman B.Manyora is a lecturer at the University of Nairobi)