By Njoki Ndungu
This last week my email inbox has been flooded with queries over specific issues on the katiba , many of which I have responded to through email or face book. There are however some issues that keep on cropping up, some misconceptions crafted deliberately, and others more innocent in misinterpretation.
On these, as a member of the CoE, I would like set the record straight. In doing so, it is important to find out how the matter is currently addressed under the current constitutional or legal framework. Also, there is need to cross reference, so that a provision is understood within its proper meaning. Such cross referencing will include not just the provisions of the PC but other laws, or policies already existing that address context of a constitutional principle that is established under the Draft.
One issue on which there are misconceptions is Art 2(6) which states that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the PC. There are claims around this clause that include perceived loss of sovereignty and fear that such a clause can lead to automatic recognition of gay rights, abortion on demand etc.
This position also presumes that at the current time, Kenya does not sign and ratify conventions but will suddenly start doing so under the PC. This is absolutely fallacious. Even now, the Kenya Government signs and ratifies treaties, but it does so only within the confines and secrecy of Cabinet, and when it does, those laws are binding on us, whether or not, Parliament has passed a law to formally domesticate it.
The purpose of Art 2 (6) therefore is precisely to move away from secrecy and to ensure that treaties, conventions and other international obligations are ratified in Parliament. This will be done through the debate of the report tabled by the President under Art. 132. C.iii. Such a report can be adopted; with or without amendments or rejected if Parliament so pleases.
This process means that the public be informed of such debate, and influence the outcome, particularly now that the PC enhances public participation in parliamentary affairs in Arts. 118 and 124. Art 21 (4) also provides that the State shall enact legislation to fulfill its international obligations and Parliament has oversight over cabinet secretaries with regard to international obligations under Art.132 (5). None of these safeguards or processes exists now under the current constitutional framework.
Another issue rife with misinformation is Abortion. Not only do the proponents of this claim state abortion on demand will be sneaked in through a Reproductive health and Rights Bill of 2008, but also through Art. 43 which states that every person has the right to health care services, including reproductive health care.
Let me point out that there is no such thing as a Reproductive Health and Rights Bill. All Bills are printed by the Government Printer and only after Cabinet or Parliamentary approval is given. None of these valid processes has produced anything resembling the so called RHR Bill. Also, Art.43 refers to our National Reproductive Health policy implemented by the Ministry of Health, which includes maternal health care, child birth, HIV, STI’s, fertility, female genital cutting, sexual violence, wife inheritance, nutritional harmful traditional practices, and effects of early marriage. Abortion is not included.
The need to compare the current constitution and the PC cannot be understated. The PC stipulates that marriage can only take place between persons of the opposite sex, the current one does not. The definition of minority groups under the PC does not include gays while the current constitution is silent. The PC states life begins at conception and states abortion is illegal, the current one does not. The PC ensures treaties are ratified by Bunge, the current one does not. The reality is that the referendum choice is between what we have today and what is in the proposed document.