The Draft constitution is getting drowned in the “YES and NO clamour”

The Draft constitution is getting drowned in the “YES and NO clamour”

As the referendum on Kenya’s new constitution draws near, the debate over abortion and the Kadhi’s courts are taking centre stage and threatening to derail the two-decade old struggle of Kenyans.
By threatening to vote “No” in the upcoming referendum if the political class fails to delete the Kadhi court and amend the clause on abortion in the new law, the Christian clergy appear to be stoking up a Church-State war in which the religious leaders must either win or perish as a political force in this country.
Despite the fact that abortion has never been legal in Kenya, and the new draft expressly provides for matters to remain that way, church leaders have vowed to mobilise their followers to reject the document.
The church objects to the section of Article 26 that empowers doctors to end a pregnancy if it endangers the woman’s life or she needs emergency treatment.
Christian leaders are also opposed to the retention of Kadhis’ courts in the proposed Constitution under Article 169 and 170, which limit their authority to disputes over personal status, marriage, divorce or inheritance, where all the parties are Muslims and agree to take the case to a Kadhi.
The controversy over the termination of pregnancy has pitted the church against pro-choice activists and is largely fought on the battlefields of values and morality. The debate has degenerated into shouting matches over the viability and humanity of foetuses and when exactly life begins. Lost in all this is the fact that, from a public policy perspective, these considerations are largely academic.
The statement by the catholic Bishops released on April 16th reads in part: “…As Bishops of the Catholic Church in Kenya, we are supportive of a new Constitutional Order for our country and have worked long and hard to bring the process to its present state. We encourage all of you to prepare carefully for this important event by first of all registering, and then on Referendum day, to go out and vote.”

“It is our duty, as moral leaders and shepherds of the Catholic Church in Kenya, to present for your reflection certain, serious problems connected with Article 26 (paragraph 4) of the Proposed Constitution. In order to refresh your memories, this article states:
Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger or if permitted by any other written law.”

“If this article is maintained in the Proposed Constitution as it is, we will be compelled based on moral grounds to advise the people of Kenya to vote NO.”

Apparently lost in the cacophony is the concession made by the political class to introduce article 26(2) that states that life begins at conception as a concession to the demands of the Church leadership which is well aware that such matters are usually not for constitutions.

One is inclined to opine, should the political leadership cave in to the demands of the clergy and amend the clause on abortion will that alone lead to an upright nation? This is in the backdrop of Studies in Kenya in 2009 showing that 47 per cent of all young people below the age of 20 years who get pregnant while in school resort to abortion. “Young unmarried women would rather seek an abortion than let their parents know that they’re pregnant,” says Wanjiku Gikang’a, a family therapist and university lecturer.

The clergy has also trained its focus on the Kadhis’ court in an orgy of myth-making that mines the road to the referendum. The anti-kadhi crowd has depicted the “Muslim family” as a new creation of the current draft, yet the truth is that it is as old as the republic.

There is also the erroneous view that the kadhis courts are an elevation of one religion (Islam) over the others and a threat to other faiths. It is equally disquieting for the some clergy members to claim that the Kadhis’ courts is a route to usher in Sharia law, and thus frightfully invoking the spectre of Islamic extremism that has bedevilled such countries as Somalia and Afghanistan to instil fear and win the hearts of Kenyans.

Article 170 (5) of the proposed law is very clear on the authority and sway of the kadhis’ courts, whose jurisdiction is limited to personal status, marriage, divorce and inheritance in cases where all parties are Muslims. Further more the kadhis court is at the bottom of the top heavy judicial system along with magistrates’ courts, courts martial and local tribunals.

Far from being a threat to organised religious, civilization, public order or individual freedom, the court should be allowed to come through as a blissful symbol of Kenya’s olive branch to religious minorities as part of an emerging permissive democratic culture
The Proposed Constitution has various provisions which will accrue and ameliorate the condition of individuals in respect of their age, gender, citizenship and enables individuals to benefit from envisaged elevated rule of law. For example, a young woman stands a good chance of participating in political affairs, enjoy equality with spouse during marriage and upon its dissolution and participate in governance.
Religious leaders ignore the fact it is not only spiritual matters which enable an individual to live a wholesome life but also other factors — economic, political and social. The Proposed Constitution seeks to put these three spheres into proper perspective.
An examination of Kenya’s socio-political and economic panorama shows that there have been laws that are not against Christian teachings per see but poor governance and human rights violations. While the religious leaders have a right to make their views known, they should do a cost- benefit analysis while calling for the rejection of the draft, so that their call is not ostrich activism.
The second point is that the calls by religious leaders is not only based on misinterpretation of Article 26(4) that allows for indiscriminate abortion but also exhibit the attrition between free will and choice, thereby bringing to fore the values system that informs our lives. The crux is that abortion is wrong based on Christian teachings. If abortion is wrong and Christians believe that God’s law is a higher law, is there a need for the same to be spelt out in the constitution in order to convince people that it is wrong hence deter them from engaging in it?
If indeed God’s law is higher, then a true test of commitment to God’s law would be the willingness to follow it even if circumstances and law permit it. To underscore this point, it would be important to draw from the experience of an early Christian in 7th Century, Origen, a disciple of Clement. After he converted to Christianity, he castrated himself to stifle sexual desires. One day he saw women taking bath and he was not sexually aroused, whereupon he pronounced ruefully, the classical words: Salvation from God is by grace not by law. In similar fashion, rather that push for adherence to biblical teachings through constitution, the religious leaders should push for the same through the values system and natural law that might reside in the hearts of their congregants.
Most importantly, there is need to unveil the fears covered by the fig leaves on call for rejection of draft based on provision on Kadhi’s courts. The downside of the “No” call by a section of religious leaders is that it will provide an opportunity for political nabobs to cloak Christianity in rejecting the draft.