BY NJOKI NDUNG\’U
Throughout this review process and in all its deliberations the Committee of Experts was consistent with regard to the provisions on the Right to Life, which is that everyone has the right to life and that life could not be taken away unlawfully unless provided for under any written law.
The above position is what was reflected in the draft which was submitted to the Parliamentary Select Committee in January of 2010.
There was no reference to the definition of life or any provision with reference to Abortion in this Draft. Although many Kenyans submitted that they wanted the death penalty included, and a few wanted abortion mentioned (and even then there were two different positions – one outlawing it completely and the other providing it on demand), the CoE decided in line with current international constitutional practice that these issues are best dealt with by legislation and not in the constitution.
It is Catholic Church that approached the PSC while it was meeting in Naivasha, and persuaded the Politicians to include a new subsection 2 " Life begins at conception" and a new subsection 4: " Abortion is not permitted, unless in the opinion of a medical registered practioner, the life of the mother is in danger.”
It is important to note that according to the CKR Act of 2008, the PSC was to reach consensus only on the chapters relating to the Executive, Legislature, Devolution and related chapters of Representation and Public Finance and Transition. This change was therefore made outside of the law and did not receive any expert advice on the unintended or other legal implications that it could bring about.
In February 2010, the PSC and the CoE met to have discussions particularly with regard to the chapters which the PSC were not mandated to revise and also to seek clarification on areas that the experts had legal issues with throughout the Draft. At this meeting the CoE raised four issues with regard to the changes made to Article 26.
The first was with regard to the definition of that life begins at conception. This is a belief that is held by most Christians (not all) but not shared by Muslims, Hindus, Traditionalists, Atheists and other Kenyans. This means that this article is in direct contravention with the article on Freedom of Religion, which states that, no one religion can impose on another.
The second issue is that conception and Pregnancy do not mean the same thing. Conception occurs when the egg is fertilized by the sperm. Pregnancy occurs when the fertilized egg implants in the uterus about 10 days later. This puts into jeopardy the ordinary contraceptive pill or injections used for family planning, as science has not yet found a way of preventing fertilization, these contraceptives inhibit not conception but implantation. The definition that life begins at conception therefore could provide for grounds to declare all forms of family planning injections and contraceptive pills as illegal and unconstitutional. We can speculate that this may be the intention of the Roman Catholic Church which has consistently been opposed to contraception, but this position is not true for Protestant and other churches. Alongside ordinary contraception, this definition will bring difficulties with regard to rape protocol procedures which include emergency contraception and IVF infertility procedures, both of which may interfere or enhance, whichever the case may be, with the processes of conception but not with pregnancy.
The third issue was that the wording given by the Catholic Church to the PSC, also confined the treatment considered under S26 (4) to that done by a registered medical doctor. The CoE was concerned that in Kenya access to Doctors, particularly in poor peri-urban, low income and rural areas was rare, and would limit this service only to women who can access doctors in urban areas or middle to high income patients.
We advised that after consultations with the Ministry of Health Services, we thought it better to use trained health professionals who are nurses or clinical officers as is done for other health services in areas where there is no access to doctors. We also pointed out that most gynecological services in these areas are already being provided for by Clinical Health Officers as provided for under their parent Act.
Further, the wording given by the church to the PSC only provides for a situation where the mother is dying. The CoE were concerned that this would prevent women from getting post rape care treatment, treatment for normal miscarriages, inducement for fetal death cases, treatment of ovarian cancers and other serious cases where the mother may not be on her deathbed, but her health in relation to future fertility, and maternal health would be seriously under threat. We submitted a report on this to Parliament, outlining the serious health problems that we had considered, after consultations with the registered Medical Professional Associations.
The response from PSC to our concerns, was a plea that the CoE should not remove the definition of life, because they did not want to offend the Church, but which could be resolved in court after enactment of the Proposed Constitution. They did however agree that the unintended consequences of the definition were very serious, and required a rewording to ensure that such problems would be addressed. The PSC however was clear that the bottom line was that Abortion on demand should not be provided for. The Committee therefore reworded the sections as follows, with changes that were made on the basis of the above concerns: “Abortion is not permitted unless, in the opinion of a trained health professional, there is a need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.”
The inclusion of the words any other written law in reference to already existing acts of Parliament that have a direct correlation to the issue at hand, namely the Penal Code (sanctions for criminal abortion), Sexual Offences Act (post rape care treatment), The Clinical Officers Act and other various laws that affect the medical profession, public health and family planning.
The Committee of Experts is satisfied that it reworded the clause to deal with the problems arising from the Churches wording, while keeping faith to the PSC’s request not to include abortion on demand, and included this explanation in its report which was widely circulated with the Draft that was submitted to Parliament.
It is becoming increasingly apparent that some Kenyans have not yet grasped the meaning of this clause, as many of them are being told an otherwise distorted version by members of the Clergy itself, who may also not have knowledge of its history and background. In all fairness, however, spokespersons of the Catholic Church, such as Ms. Achieng, should at least have the courage and honesty to take responsibility for the loopholes, if any, in this clause.
They did not consult medical or legal professionals before taken a decision on the inclusion of the definition of life and abortion clauses. They did not consider actual demographics in Kenya such as the shortage of medical doctors and reality of the poor rural woman in the Kenyan village and her access to medical services and family planning.
The fact that the current official position of the Catholic Church (in the latest pastoral letter by Cardinal Njue to his flock), is now seeking to delete this clause altogether, points to the fact that the Expert’s position from the very beginning was in fact, the correct one.
(The writer is a member of the CoE. This article was first published in the Standard).