Opponents of the clauses on abortion in the draft constitution have not drawn attention to the extraordinary process by which the majority of traditionally anti-abortion Kenyans have suddenly been convinced that dramatically increased accessibility to abortion is in the nation's best interest.

Although various studies indicate that most voters are not familiar with the draft constitution, pollsters claim that almost two-thirds of Kenyans are ready to endorse a document that will, for all practical purposes, introduce abortion on demand in Kenya.

The process of revising the constitution raises questions about the basic intelligence of the revisers, the role of influential interest groups with their social-sexual agendas, and political manipulation.

The revision process passed through three stages: the November draft, the PSC's January revision, and the February document now in the hands of the Attorney-General. The first stage came to a conclusion with the Harmonized Draft of the Committee of Experts in November 2009. Sec. 35 of the November draft treats the right to life as follows:

1. Every person has the right to life.
2. A person shall not be arbitrarily deprived of life.
3. Furthermore, Sec. 62 deals with health:
4. Every person has the right to health, which includes the right to health care services, including reproductive health care.
5. No person may be refused emergency medical treatment.

The foregoing clauses contain nothing about permitting or prohibiting abortion. Arbitrary deprivation of life, however, might allow statutes authorizing the restrained or limited taking of life, e.g., abortion to save the life of the mother. Admittedly, many would interpret reproductive health to include abortion; nevertheless, Sec. 62.1 provides no explicit sanction for abortion. Sec. 62.2, on the other hand, might leave abortion as an option in emergency medical care­again, a situation in which the mother's life is gravely endangered.

Because the November draft did not expressly outlaw abortion, various groups, most prominently some religious leaders, called on the PSC meeting in Naivasha during January to include an explicit prohibition of abortion in the draft. Stage two in the revision process ended in January with the PSC's modifications in Sec. 25, which deals with the right to life:

1. Every person has the right to life

2. The life of person begins at conception

3. No person shall be deprived of his life intentionally save as may be authorized by this constitution or any other written law.

4. Abortion is not permitted unless in the opinion of a registered medical practitioner, the life of the mother is in danger.

Note the significant change in the January draft: the November document contains no explicit statement on abortion; then in the January revision, a registered medical practitioner can authorize abortion in a life-threatening situation. Keep this evolution in mind when we come to stage three in the revision process, the February draft.

The second clause of the PSC revision is especially problematic: first, it seems to prohibit "the morning after" pill or any action that prevents implantation after conception; second, it may prohibit the termination of ectopic pregnancies and gestational tumours, two post-conception conditions that can be fatal to the mother.

The PSC revision of January is both a highly restrictive and confusing proposal on abortion. It leaves one wondering about the basic intelligence of the revisers. Clause 2 speaks of a person's beginning, not the beginning of a biological process called human life. "Person" shifts the meaning discussion of abortion from debate about when life begins to the meaning of person-hood. "Person," unlike life, is a highly evocative philosophical and legal term implying inalienable entitlement, rights equal to those of a mother, and the moral claim to innocence when an unborn person unintentionally threatens the life of the mother. If the unborn living being is, not an "it," but a person and an innocent, then how can the state or any moral agent deprive her/him of life, the foundational human right? Why should the state consider a mother's life more valuable, more deserving of protection than the life of an unborn person?

How the revision process moved from an extremely restrictive, if confused, stage two January draft to a decidedly expansive stage three February draft will probably remain just another mystery of Kenyan politics. In their November document, the Committee of Experts did not even mention abortion, but in their revision of 23 February, abortion is permitted for health reasons, which in effect amounts to abortion on demand. Sec 26, on the right to life, reads:

1. Every person 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 the health of the mother is in danger or if permitted by any other written law.

The current revision retains the language of person with all its intricate philosophical and legal problems. In the November draft, the second clause of Sec. 62 seemed to leave abortion as an option in emergency medical care­probably a situation in which the mother's life is endangered. The present draft expressly allows abortion as an emergency treatment, although emergency is not defined.

Obviously, however, the major change in the February draft is the elasticity of "trained health professional," rather than the more restrictive "registered medical practitioner," and the term "health." A "trained health professional" can be anyone from an assistant nurse to a trained abortionist. Moreover, "health" is a term open to ready change, easy expansion, and widely variant interpretations. Just consider the famous WHO definition of health: a state of complete physical, mental, and social well-being, and not the mere absence of disease or infirmity. From a November draft with no mention of abortion, we have moved to a draft that allows abortion on the basis of mental well-being, even momentary feelings of unhappiness and transient stress.

By failing to amend the 23 February draft, Parliament has consented to abortion on demand. And most Kenyans seem willing to follow the President, Prime Minister, and Parliament in introducing abortion on demand into this country.

Opponents of the abortion clause in the current draft have not drawn attention to the process by which unaware, anti-abortion Kenyans have been deviously persuaded to legalize abortion on demand. The Catholic bishops are not holding Catholic politicians, and above all the President, accountable for their support of the current draft. The media are not interested in informing Kenyans about the incontrovertible consequences of the draft. And the politicians are the politicians.

Rev. Lance P. Nadeau is Catholic Chaplain at Jomo Kenyatta University, Nairobi. Views expressed in this section do not necessarily represent the opinions of CISA.