The government has recently been in the news for promoting the policy of male circumcision to combat the spread of HIV/Aids. While this move is commendable in that it seeks to reduce the spread of a disease which has taken the lives of many Kenyans and left even more infected and affected, it raises some serious legal, constitutional and ethical issues that need to be resolved. It is not clear how the government intends to ensure the success of this policy. However, if not implemented in a socially-cum-human rights based manner, it is sure to touch a raw nerve with many people.
The first thing that needs to be considered is the constitutional effect of the policy. Article 2 of the Constitution of Kenya declares it as the supreme law of the Republic and binding on all state organs at both levels of government. Article 19(1) further states that the Bill of Rights is an integral part of Kenya's democratic state and is the framework for social, economic and cultural policies. This means that the state is bound by the Bill of Rights in the policies that it makes. One might be tempted to ask, are there any constitutional rights that might be affected, taken away or violated by the government policy of promotion of male circumcision?
Article 28 of the Constitution states that every person has the right to inherent dignity and to have that dignity respected and protected. Does the state intend to compel all men to be circumcised and if so, doesn't this violate the right to inherent dignity as set out in the above article? Should circumcision be a personal decision? How will we balance between the reproductive health rights, the right to life as read along the right to health so as to get the best of this policy?
Article 29 (f) states that every person has the right not to be treated in a cruel, inhuman or degrading manner. By compelling men to be circumcised, if in fact that is what it intends to do, wont the government be violating the Bill of Rights?
Finally, Article 43 (1) (a) provides for the right to the highest attainable standard of health. Male circumcision has been scientifically proven to greatly reduce the chances of a man getting infected with HIV/Aids. By developing a policy to encourage male circumcision, is the government performing its duty of ensuring the highest standard of health by reducing the chances of HIV/ AIDS infection?
The second thing that needs to be considered is the custom and practices of the various Kenyan communities that do not practise male circumcision. If at all the policy is to yield fruit, then the implementers of the policy need to fully understand why some communities did not practise male circumcision. This can then be used in trying to build up a case for why the members of that community should adopt the practice of male circumcision. If there is no research to find out why there is no male circumcision in the community, then this initiative is likely to come up against a stone wall.
Article 44 (3) states that a person shall not be compelled by another person to perform, observe or undergo any cultural practice or rite. Is circumcision being presented as a cultural rite or as a health issue? If it is being presented as a cultural rite, then the government is not only violating the Bill of Rights but also bound to fail in its mission. The State might have a good case if the issue is attended to from a health perspective.
Another issue that needs to be considered is the opinion of the sexual partners of the uncircumcised men. We need to consider what the spouses want and what is in their best interests. We need to consider whether they prefer to have their men circumcised or uncircumcised. If it is the latter, then do they have attendant rights especially if they are a married couple? In a marriage, the parties are recognised as having conjugal rights. Does this mean that they have a related right to obtain pleasure from their conjugal union?
We need to consider the two competing rights of a sexual partner's wants versus her interests. Should she be allowed to have a say in the matter? Should she be allowed to put her health at risk for the 'right' to pleasure?
While this might seem to be a straightforward matter of the government protecting the life and health of its citizens, clearly there are more factors at play here. The government therefore needs to think soberly about this policy especially during this nascent stage of constitutional implementation when we are laying the foundation for a new order of business.
That having been said, we cannot bury our heads in the sand. A healthy nation is a wealthy nation. We have to fight HIV/Aids from all angles.