by Martha Karua

Thank you for your ongoing interest and inquiries regarding the Draft Constitution and on the issues I have expounded on.

I have summarized many of the questions that have been raised here and will continue to endeavor to respond to as many of you as possible.

Let us continue to have dialogue on this issue so that we can make informed decisions.

On Abortion

How does the clause on abortion protect from those who have bad business practices and will the clause not permit doctors to abuse the law to their advantage?

Abuse of the law even as it occurs today should be dealt accordingly, as stipulated by the law.
Medical doctors and health professionals are subject to regulations that govern their professions and any misconduct that violates these regulations and or the law would be subject to the law and those regulations.

It should also be noted that the Draft Constitution is actually more explicit in regulating health professions than the existing Constitution which currently states in the Penal Code that “any person who performs a surgical operation”, whereas the Draft Constitution states “any health professional”, clearly indicating who can appropriately determine the need for a medical intervention. Also, the constitution cannot restrict language to only state “doctor” because that would bar health professionals from attending to emergencies that arise in absence of doctors including child birth.

Haven’t you supported a Health Reproductive Rights Bill which provides Abortion On Demand and doesn’t clause 3 allow for enactment of another law?

I can say with certainty that no Reproductive Health Bill has so far been tabled in parliament and whether such a bill if tabled would include legalizing abortion is speculative and should not be used to scare people from the draft. We cannot legislate to stop people from making whatever proposals they wish in the future but society must remain vigilant to ensure that only those proposals that meet its moral standards are accepted.

Clause three and four of section 26 of the draft make reference to “any other written law which currently are the Penal Code the Medical Act” (discussed above) and other laws that may be passed in line with the constitution and not contrary to it.

Doesn’t the Draft Constitution permit abortion?

“Abortion is prohibited” is not in our existing constitution and it only appears in chapter 63 of our laws of Kenya. However the Draft Constitution, and it should be noted this is largely due to the insistence and lobbying of church groups, states that abortion is prohibited and this is in section 26 (4).

This made it necessary to put a clause in this section which exempts a health professional from criminal responsibility should a life be lost in the course of providing care especially in saving the life of a mother. Otherwise health professionals who despite exercising the highest professionalism and applying reasonable care and skill in providing care, lost the life of a mother or a child in that process would be at risk of prosecution.

On Kadhi’s Courts

Shouldn’t State and Religion be separate?

The American Constitution states that the church and state shall be separate and this should not be confused with our Draft Constitution, section eight which states that “there shall be no state religion”

This means that none of the faiths will be the official religion of Kenya. Section 32 gives freedom of conscience, religion, belief, and opinion. And it gives everyone the right to practice, teach, and observe their religion, including day of worship.

Will Kenya not become like Nigeria where there are a lot of killings among Christians and Muslims and is this not tied to the Abuja declaration?

First, we must always remember that Kenya is a multi ethnic, multi racial, and multi religious state and therefore we must all exercise the highest degree of tolerance without which we threaten our foundation.

Second, lawlessness and insecurity are due to a failure of government institutions that are mandated to uphold and enforce the law so concerns over an increase in any crime, religious or not, would be addressed through these institutions not the constitution. The role of the constitution is to outline those laws and not uphold them. This is why I emphasize that a good constitution is a great start and it must be carried out by a government capable of effectively upholding the laws outlined in that constitution.

Will the government not incorporate Muslim judges into mainstream judiciary and discriminate against other religions?

Section 170 of the Constitution Draft limits Kadhi courts to personal matters between Muslims who choose to utilize the Kadhi courts and their jurisdiction or extent of authority is determined and limited by the Constitution.

Why can’t we have Christian courts or what is to stop other religions from demanding courts that can cater to their personal matters?

The current Kenyan judicial system, including the training of its lawyers and judges, is modeled after a British Christian tradition. Therefore, in essence, Christians have a court system that is rooted in a tradition that reflects their faith. Our Judicial system and its lawyers and judges are not trained in Muslim or customary/traditional law and therefore hire, as is the case with Kadhi courts, and consult with those who are.

Why can’t Muslims utilize other courts like other religious groups?

Muslims who choose to have their personal matters addressed in a court that can comprehensively address their issues in accordance to Islam, would not be effectively catered for in our regular courts which are modeled after British Christian tradition and lawyers who are not trained in Islamic law.
Furthermore, Christians, Muslims, Traditional/Customary law adherents and Others are all tax payers and are entitled to and are catered for by our court systems.

Will not enacting this draft with provisions of Kadhi courts subject children to early marriage?

Section 45 of the Draft Constitution is very clear that only consenting adults can marry.
Age of majority in Kenya is eighteen years and both our Children’s Act and our Penal Code prohibit child marriage. The enactment of a new constitution will not invalidate our laws except to the extent such laws are inconsistent with the new constitution.

Overall Question

Why cant we take out the contentious issues and vote for a Constitution Draft that will be more widely acceptable?

Opening the draft for new negotiations does not guarantee that additional issues will not arise and continually delay the process of acquiring a new Constitution. Furthermore, what criteria will be applied and whom will determine and limit the ‘contentious’ issues which should be separately voted on? Who is to set the goal posts and ensure demands will not continually shift?

If you recall in Naivasha, this Constitution Draft had been lauded as a good document so what went wrong since then? The laws we enacted to protect this process were done with these challenges in mind. It was imperative that if we were determined to have a new constitution we set a timetable in which this could be achieved. A timetable which was negotiated and agreed upon by the Coalition Government, endorsed by Parliament and by Civil Society through the Parliamentary Committee on legal affairs. And that is precisely what we are on – an agreed upon timetable to ensure that we actually are able to vote on a new Constitution and move forward.