Clash over abortion rights in new constitution
A harmonised draft constitution has now been handed over to Kenya's Parliamentary Select Committee. Influential Christian leaders are warning that the question of abortion could derail the constitutional review process. The draft, assembled by a Committee of Experts, actually contains no specific reference to abortion, but the National Council of Churches (NCCK) and the Catholic Church are up in arms about a phrase stating that "everyone has a right to life" while failing to define where life begins and ends. Church leaders are adamant that any ambiguity that could see abortion rights in Kenya expanded is unacceptable. Canon Peter Karanja of the NCCK told IPS, "Life is sacrosanct. The definition of life must be stipulated in the supreme law of the land, the Constitution. Life must be defined as starting at conception and ending at natural death."
When the expert committee heard submissions from the public on the draft in 2009, the clergy and other anti-abortion campaigners took issue with the fact that the document did not reinforce Kenya's current law and clearly outlaw abortion, except where a mother's life is in danger. During hearings in July, emotions ran high, with church leaders literally shouting down speeches by the Reproductive Health Rights Alliance (RHRA), warning that legalising abortion would "make or break" the constitution review process. The vice chair of the committee, Atsango Chesoni, had to intervene. "I am asking my Christian brothers and sisters, if you had been born a woman or a girl and had the misfortune of being raped, what would you want and what are the choices you would want available to you?"
Currently, abortion is permitted in Kenya only to save the life of the mother. Despite this, every year large numbers of women seek assistance to terminate pregnancies wherever they can find it. Dr Joachim Osur, an advisor with reproductive health rights organisation IPAS - a member of the RHRA - argues that opponents of expanded abortion rights in Kenya have their heads buried in the sand. "Despite termination of pregnancy being restricted in Kenya, induced abortions remain common.
In Kenya it is estimated that 300,000 spontaneous and induced abortions occur annually, about 29 abortions for every 100 live births," says Osur. "Unsafe abortions contribute a significant margin to the maternal deaths in this country at 30 percent. It is estimated that 2,000 women die annually from unsafe abortions."
Nerida Nthamburi, executive director of Kenya's Centre for Legal Information and Communication, says the experts' decision to resist the call to define the right to life in line with the churches' demands is a victory - at least for now - for women's rights.
"It is commendable that the COE considered the issue of abortion as resolvable. Failure to take such a positive position could result in restrictions whose tragic results are most often felt by vulnerable women, among them the young, poor, those living in rural and marginalised areas," Nthamburi says. "Having witnessed firsthand the devastating effects of laws and policies that fail to protect women's lives and health, such as the existing restrictive abortion law, the draft will have a great impact on reducing maternal deaths in Kenya."
But the churches are furious, threatening to mobilise against a 'yes' vote in the eventual referendum on the constitution. "Should the harmonised draft remain as it is without defining when life begins, we shall explore legitimate options as stipulated under the Kenya Constitution Review Act, 2008 to seek amends. What is clear is that this issue needs to be taken seriously as it will definitely take centre-stage with regards to the referendum," says Karanja. Presented with statistics on deaths resulting from unsafe abortions, the canon was adamant. "It must be understood that pregnancy is God's design, results from sexual contact between a man and a woman. God, therefore, holds the man and woman responsible to control themselves and engage in sex as a husband and wife. In any case, that a pregnancy results, it is not the problem of the unborn child. Why kill the innocent, helpless human life when it has resulted from the behaviour of adults?"
In a memorandum to the COE, the alliance states that the way the draft constitution presently guarantees a right to life, without further definition, is consistent with that adopted by other states and by major international human rights instruments. The Reproductive Health Rights Alliance views the recommendations by the church as being tantamount to imposing Christianity on all citizens - other religious communities have largely steered clear of this debate in the constitutional review process.
The select committee will spend 21 days working to resolve "contentious issues" before a draft is submitted to the National Assembly for approval. To more forcefully intervene in this stage of the process, a group of pastors went to court in December seeking clarification of what formally qualifies as a "contentious issue". The COE identified the type of government (parliamentary, presidential or hybrid), the devolution of powers away from central government, and how a new constitution should be brought into effect. These questions will be the central work of the Parliamentary Select Committee between now and the end of January; church leaders want abortion, among other issues, to be elevated to the same level.
As the debate continues from the pulpit, in the media, and in court, University of Nairobi obstetrician and gynaecologist Joseph Karanja offers a timely reminder.
"Those arguing for the restriction of abortion in the Constitution are misguided and refuse to accept the reality. Whether it is put in the Constitution or not, hundreds of women will continue dying from unsafe abortion every year," says the professor.
"The solution is to address the source of unwanted pregnancies in the first place instead of expending energies on arguing about including it in the Constitution."
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