Currently in Kenya, over 80% of news headlines are on the new constitution, given that the country will be deciding on a new set of laws to guide the country as of 4th August 2010. The ensuing debate on the new proposed set of laws has come down to a few Key issues. These issues are being driven by two distinct sides in the debate. On one side are the pro reformers; largely the group of political personalities who championed the cause of a new constitution in the face of a dictatorial regime which was led by the Former president, Daniel Toroitich Arap Moi. This group formed the new government in 2002 and is currently in support of the draft constitution.
The other side interestingly also includes the former president and a group of politicians who were close lieutenants’ in the former regime. But most prominent is the group of church leaders led by the evangelicals, the Catholic Church and a section of the protestant church. While this anti draft constitution group has several issues which they list as contentious the most important ones seem to be; for the church leaders, the inclusion of a law of abortion and the Kadhi courts; the law on abortion allows for limited right for procuring abortions if a woman’s life or health is in danger or in emergency situations; the Kadhi courts law establishes subordinate courts to handle issues pertaining to personal law; marriage, divorce and inheritance for persons professing Islam. The Kadhi courts have some history behind their establishment. Read more….My focus on this discourse is to analyze the law on abortion to ascertain the truths or lies being propagated by the anti draft group with regard to this issue. Some key issues have emerged in this debate, chiefly the terms used in the provision of abortion and the limits or unlimited nature of its restriction of “abortion on demand” as the opponents of the draft have termed it. The provision on abortion reads as follows;
Chapter four on Bill of Rights, Section 26 : Right of life
(1) Every one has the right to life
(2) The life of a person begins at conception
(3) A person shall not be deprived of life intentionally, except to the extent authorized by this constitution or other written law.
(4) 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.
As I stated earlier, the bone of contention lies in the terms used and the limits provided. On terminology what seems to have irked the opponents mainly the church group are the terms “in the opinion of a trained health professional” and “or if permitted by any other written law”. According to the law in Kenya and specifically with regard to the medical profession there is a specific body that is in charge of registering and licensing health professional to practice in Kenya;
CHAPTER 253 - Medical Practitioners and Dentists Act; establishes laws to guide the practice and use of medicine in Kenya. It’s important to note that this part of the law will not change since it is not inconsistent with the constitution. The draft constitution will only change acts in the current law that are inconsistent with the constitution or if the constitution has expressly stated so.
The reason I refer to the Medical Practitioners and Dentist act, is because it defines who a health professional is; section three of the act define terms and it reads
3. Construction of terms in any written law
“The expressions "legally qualified medical practitioner" and "duly qualified medical practitioner" or any words importing a person recognized by law as a medical practitioner or a member of the medical profession, when used in a written law with reference to that person, shall be construed to mean a person registered as a medical practitioner under this Act or, where the context so admits, a person who is licensed by the Board under section 13.”
This clearly puts to bed the argument that the terms ...trained health professional, means that even a hospital genitor can give an opinion on abortion. Clearly the law and the term health professional refer to person(s) who have been registered and by extension trained to practice medicine in Kenya. The other question that one would raise at this juncture is, by arguing that the term health profession will create a loophole for abortions on demand, based on the reasoning that one can approach a nurse to falsify reports that indicate a woman life was in danger, is negating the fact that even a registered senior gynecologist in a national government hospital can be approached to do the same. It thus clear that our trust on the proper application of this provision and lack of abuse of it, lies in the hands of our medical practitioners. The same way we trust their diagnoses of our health every time we visit the hospital is the same way we are bound to trust their opinions on whether a woman’s health or life is threatened by a pregnancy.
On the second hot issue…“or if permitted by any other written law”….this simply implies that abortion for any other purpose other than stated i.e. need for emergency treatment, or the life or health of the mother is in danger, will require a new law to be passed by parliament. The threshold for amending the bill of rights issue is a referendum (popular initiative). As such any other written law on abortion will be dully debated and people will have their say on the matter. It is thus erroneous for the opponent of the draft to suggest that the term any other written law will be used to legalize abortion. It is also important to remember that the penal code will also not change and this provides the specific crimes under abortion and the punishments. Below are two examples
CHAPTER XV - OFFENCES AGAINST MORALITY
158. Attempts to procure abortion.
Any person who, with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for fourteen years.
CHAPTER XXI - OFFENCES CONNECTED WITH MURDER AND SUICIDE
228. Killing unborn child.
Any person who, when a woman is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had then died, he would be deemed to have unlawfully killed the child, is guilty of a felony and is liable to imprisonment for life.
To sum up my argument, those calling the Kenyan draft constitution a pro abortion constitution are misguided. The proposed law is very clear on the issue and has been very well drafted. We must also not forget that a law on abortion is only a set of principles, practically it is very hard to police abortion, countries like Brazil with very strict Laws on abortion see up to 250,000 abortion complications including deaths every year, the larger Latin America continent sees up to 4 million such cases annually. We must therefore not be ignorant of the facts. The only way to fight abortion is by empowering women with information and support systems to ensure that they don’t get into the “unwanted pregnancy” position in the first place. Otherwise they will always seek and procure abortions at will and at that point the law ceases to be an important consideration, the only thing in a woman’s mind is how I get rid of it. Although a very hard decision for a woman, once she convinces her conscience that she must do it, no law will stop her.
0 comments:
Post a Comment