The facts vs myths in the proposed Constitution


1. That the Proposed constitution of Kenya permits elective abortion or abortion on demand.

FACT: This assessment is factually incorrect. The draft constitution, contrary to the current one, entrenches the right to life of the unborn child. The law would only permit abortion in the case where the life of the mother is in danger.

Other circumstances are where the health of the mother is at risk or where otherwise permitted by any written law.

The opinion of a health professional is what is required before an abortion may be procured.
Questions have been raised on the meaning of “health professional” as well as the import of just an “opinion”.

It is trite law that a law cannot be enacted to take away the principle that is being espoused by the main framework, on the case of abortion, the Right to Life.

Secondly, a health professional cannot be taken to be any person in the employ or in association with a health facility. This can only be a person trained in such professional discipline as to make and render a professional opinion regarding the safety of the pregnancy.

2. That the proposed constitution takes away the right of worship, to propagate one’s religion and will permit infiltrators to the community of Christ.

FACT: The right of worship and to manifest such religion and belief is protected. Individuals are safeguarded against discrimination on the basis of their religion or belief. It is prohibited to deny people access to institutions founded on religion. This is intended to safeguard people from being for instance denied medical services or an education from an institution run by adherents of a religion other than his own.

3. That the proposed constitution will eliminate the local authorities and provincial administration.

FACT: The local authorities will be reorganized by a law to be passed by parliament that will state how they will operate within the framework of the devolved government. This is in recognition of their role in government. They will however continue to operate as usual subject to the enactment of the relevant law.

The provincial administration too will be reconfigured to take into account the reality of the new form and frame of government. This, like all other institutions of government will have to meet the criteria of probity, national goals and objectives as well as the principles of leadership. Parliament will enact a law within five years to make that configuration a reality.

4. That private land will be taken away by the national government and allocated to other people.

FACT: Land will be recognised in three parts: a) Public land, b) Community land, c) Private land. All land that is for the time being used for or recognised as government land will be controlled by the county governments for community purposes.

The National Land Commission, which shall be devolved, will have power to recommend policy to county governments on land use and planning. It will also have power, as may be given by parliament in a law to be passed, to investigate the propriety of title in cases where land may have been acquired in unclear circumstances. Where it is clear that the land was unlawfully acquired, the Land Commission may direct that the land reverts to the jurisdiction of community land. After the reversion, the county government will decide in the best interest of the community how to proceed with such land. This may include offering a new lease to the person with condition or in any other lawful manner acquire the reversion.

5. That the Presidency remains imperial and stronger than in the current Constitution.

FACT: There are many areas that the powers of the president have been checked. No senior appointments, including to the Cabinet, will happen without the approval of Parliament. The judicial appointments have been made more independent, the president is liable to impeachment, and it’s declared that the president is under the law rather than now being considered as if he were above the law. Conjecture about the possible abuse office or corruption by a future president is just that.

6. That the proposed Constitution will be impossible to amend as the threshold is too high.

FACT: The history of Kenya is replete with serious fundamental amendments to our Constitution thus making it impossible to recognise in its principles and theory. For that reason, the threshold was set adequately high to make it necessary for as many Kenyans as possible to participate in the reform or change of the Constitution.

However, one other possible way of causing amendment would be through declarations by the Supreme Court. Options therefore do exist. Further, some of the issues being touted as necessary to amend are really misunderstood but would be clearer with the application of the new Constitution.

7. That the proposed constitution has set out minimum and maximum land ownership in Kenya.

FACT: The proposed constitution, in recognising the practical problems of land in some areas where a few individuals own land the size of a province while others have nothing or some bits are too small to grant titles on, the proposed Constitution provides the opportunity for Parliament to make a law that may recommend the sizes of land individuals may own in order to do justice and equity to all Kenyans. This is desirable as it is heavily borrowed from the National Land Policy which was largely people-led and influenced.

8. That the proposed Constitution takes away the right to preach and convert people into Christianity and to preach or propagate their religion. That the Church will by virtue of the new constitution permit nonbelievers in the Christian faith to infiltrate the church and become pastors.

FACT: There cannot be anything more preposterous than this assertion. Section 32 of the Proposed Constitution clearly asserts the right of every individual, in community with others or alone to manifest their religion in teachings, worship, practice etc. Further, it is a constitutional heresy to try the use of the constitution as an evangelizing tool. Whereas the proposed constitution DOES NOT PROVIDE for infiltration, it should be expected that non believers should join the church and convert. It is also known that sin within the clergy and laity is commonplace and the CONSTITUTION IS NOT THE PLACE to prohibit or encourage sin.

9. That the proposed Constitution creates two religious classes of people, namely the Muslims and Christians. Further that by providing for the Kadhis courts in the section relating to the Judiciary, the proposed constitution is entrenching a religious court for Muslims while not giving other religions the same right.

FACT: The Kadhis courts are a judicial organ that historically dispenses justice to people who profess the Islamic faith. They are not religious or courts of religious doctrine. The common law that is accepted by majority of Christians is Judeo-Christian in nature and origin. In the case that Christian courts had evolved with unique judicial and morally acceptable features such as the Kadhis courts, it is entirely possible that there Christian courts would exist.

NOTE: The remarks attributed to the Kenya Church, whose part concerns are hereinabove referred and are being circulated publicly border on hate speech contrary to the National Cohesion and Integration Act. It is a shame that any church or religion in a civilized country should spread hate speech by portraying some religions as being less important or less Kenyan. The Attorney General of Kenya should be encouraged to take the necessary steps to ensure that the country does not slide to indecency due to religious or ethnic bigotry.

It must be recalled that it is the hate speeches such as the one referred to that the political elite in Kenya propagated in the run up to the 2005 Referendum that led to the bloodshed that happened in 2007/8. Without individuals and organisations being held accountable to what they say, impunity is entrenched.

(Haroun Ndubi is an advocate of the High Court of Kenya and Director of Haki Focus).

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