Fahamu (Oxford)

3 June 2010

Kenya: The 'Yes' Camp Has It Right

opinion

As Kenyans living in the diaspora, we have followed with keen interest efforts to revamp our constitution, going back to the first major draft effort by the Constitution Review Commission of Kenya in 2002 through the Bomas days when we felt fairly optimistic that a new constitution would surely be passed and made the new law of the land.

For reasons well documented and therefore not necessary to repeat here this did not come to be, but thanks to a dogged determination by Kenyans that a new constitution we must have, we are now in round two of this fight for a new constitution and a new Kenya. This pits those reflecting the public's long thirst for a new constitution, namely the 'Yes' camp, against those who would rather have the country stuck in the past without constitutional reforms, namely the 'No' camp.

It goes without saying which of these two camps should prevail come 4 August 2010 as this is a matter of common sense, particularly given the 'No' camp has yet to articulate a single plausible reason why Kenyans should defeat the proposed constitution. To be sure, the 'No' camp has advanced various reasons in support of their untenable position to just say 'no' but even a cursory examination of these reasons clearly reveals none of them is plausible.

For example, the 'No' camp recruited as its ally members of the church leadership - and note not church membership - who have more recently become extremely vocal that they do not support the proposed new constitution. To the best we can tell, these leaders claim they are opposed to the draft because, according to them, it guarantees abortion on demand. This is simply false. The proposed new constitution does not guarantee abortion on demand and to the extent abortion is being advanced as an issue or reason to oppose passage of the constitution, it is as disingenuous and fake an argument or reason as any can be for a number of reasons: First, abortion ought to be a matter between the individuals directly faced with the issue and their doctor, or at most their immediate family too, but nobody else, including the government.

However, to the extent our government - like other governments before it - has chosen to address this issue, it has always made abortion illegal except where performed 'in good faith and with reasonable care and skill ... upon an unborn child for the preservation of the mother's life', according to Section 240 of the Penal Code. The right to life language in the proposed constitution simply modernises Section 240, which has been in the books unchanged for more than 80 years, by continuing to make abortion illegal '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 expressed in Section 26 of the Proposed Constitution of Kenya, passed by Parliament in April 2010. The church leadership is therefore clearly misleading the public by saying the new Constitution enshrines abortion on demand when it clearly does no such a thing. Not even reading together Section 26 and Section 43 of the proposed constitution (ensuring good health for all Kenyans) can one find even a remote basis to advance the false position taken by the church that the new constitution supports abortion on demand. The abortion argument is therefore untrue and has only been raised in efforts to scuttle the constitutional review process for the benefit of a handful, when passage of the proposed constitution is desired for the benefit of all Kenyans.

Second, the 'No' camp is now advancing another religion-linked reason for their untenable position and that is the inclusion of a provision regarding Kadhi courts in the new constitution, which the 'No' camp is now peddling as good enough reason to defeat the draft. This Kadhi argument is a classic red herring brazenly being advanced by the 'No' camp to confuse the uninformed public about what the Kadhi issue really is in the hopes that confusion will aid in their destined-to-fail efforts to defeat passage of the new constitution. Just like the abortion issue, the Kadhi argument being raised by the 'No' camp against the proposed new constitution is disingenuous and fake. This is because the Kadhi provision is nothing new in the Constitution of Kenya and neither is it anything new in our country's history; indeed, the underlying reason for the express inclusion of the Kadhi courts in the present constitution predates our independence. This inclusion is so firmly grounded and an intricate part of our history that those wishing to now suddenly challenge it are either ill-informed and ignorant, which I doubt, or they are pulling no stops, including using the Kadhi issue, to confuse and divide the public on religious grounds in order to reach their stated goal of denying Kenyans a new constitution - neither of which says anything good about this group.

Third, some of the church leadership, and by extension the 'No' camp, have questionable credibility as to the true reasons they are suddenly so vocal in opposition to the proposed constitution, particularly in their focus on abortion. As was recently widely reported in the media, a US-based anti-abortion group known as the American Center for Law and Justice (ACLJ) bragged that it is donating 'tens of thousands of dollars' to help defeat Kenya's proposed Constitution.[1] The question to be asked is how much of this money have the so-called church leaders received from these and other foreign groups to advance these groups' interests, as opposed to advancing the interests of Kenya? Asked differently, to what extent is the so-called opposition to the new constitution, by church leaders and others, informed by their core moral and principled beliefs as opposed to monetary influence by groups like the ACLJ? As I pose these questions, I am reminded of the axiom: If it quacks like a duck, waddles like a duck, it is probably a duck.

In sum, the opposition to the new constitution by the church, or by the 'No' camp for that matter, is spurious at best and something more serious at worst, but given the enormity of the issue at hand - namely creating a new Kenya - one would hope those in the 'No' camp and the church leaders would reevaluate and join the 'Yes' camp. Doing otherwise serves no known or plausible public interest.

To be sure, no one is saying the new constitution has to be passed without dissent or opposition; far from it. As in any republic, healthy debate is desirable, and indeed, necessary for effective discourse in policy formulation. However, dilatory and propaganda tactics intended not to inform but to confuse and to defeat good public measures should never be mistaken for debate. It is clear those in the 'No' camp are engaged in dilatory and propaganda tactics intended to defeat passage of the proposed constitution in Kenya. As for genuine debate, we have indeed debated the new constitution vigorously since 2002 so anything that has to be said about it has; anything major that has to be included in it is; and anything not included in it is not by consensus among those tasked with spearheading the process, namely parliament, guided by the Committee of Experts.

That the president and prime minister have both endorsed and are therefore firmly in the 'Yes' camp on passage of the new constitution, is indicative that enough has been said and done about the proposed new constitution and now it must simply be a matter of formality before passage by way of the referendum; technically not necessary but is nonetheless part of the process which must be honoured but not abused. For this reason also, namely the mutual support of the proposed constitution by Kibaki and Raila, one need not read further writing on the wall to determine where this process is headed. But for the sake and unity of the country, perhaps those in opposition need to pay attention to this writing on the wall to finally determine why theirs is an exercise in futility, and therefore abandon their quest and join the rest of the country in saying 'Yes' to the new constitution.

For those still recalcitrant and intent on denying Kenyans a new constitution, there is good news and bad news for them. The bad news is, it is unfortunate we still have these characters amongst the Kenyan political class, as we have gone through so much. The good news is, Kenyans are far more informed and sophisticated today than in any other time in our history, so they are quite capable of identifying the antics of those intent on denying them a new constitution. Given the top leadership in the country is for passage of the new constitution, this is as good as done and one wonders why these characters still search for ways to defeat this irreversible momentum. They seem nonetheless intent to go down this path of clear defeat and perhaps would not if it wasn't for blind ambitions not at all related to passage of a new constitution in Kenya, in which case all we can do is to be curious about how these same individuals will behave in the new Kenya after passage of the new draft.

There is time to do the right thing, however, and one hopes those on the 'No' camp have not mistakenly taken the view, as the character Mulili did when he declared in playwright Francis Imbuga's 'Betrayal in the City', that it is better never than late, when the opposite is the wisdom.

Samuel N. Omwenga is a lawyer.

NOTES

[1] The Daily Nation, online, 1 May 2010.

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