By LUKOYE ATWOLI
Sunday Nation 04 April 2010
In African folklore, it is often said that we only discover who our true friends are in times of our greatest want.
For a number of unfortunate Kenyans who happen to occupy the position of minorities, this aphorism has never been truer than during this final phase of our constitution-making process.
As we seek to write a basic law that will govern this country for generations to come, our opinions on what should be included in it have laid bare our thinking about the place of minorities in our society.
Even those that have traditionally purported to speak for ‘‘minorities’’ have been left tongue-tied at crucial moments when these vulnerable groups have come under withering attacks from those that hold the ‘‘majority’’ view.
Views expressed about homosexuals and others that practise their sexuality differently have exposed a rabid intolerance and imperviousness to alternative opinion in almost all sectors of Kenyan society.
Suggestions were made in public forums that ‘‘these people’’ need to be beaten up, jailed, ‘treated’ or even killed for daring to practise sexuality in a way the rest of us consider ‘‘unusual’’.
Even as the proposed constitution was being introduced for debate in Parliament, the issue of abortion remained a sticking point.
The chairman of the Parliamentary Select Committee, while initiating debate on the draft, proudly declared that the interests of all protagonists had been taken into consideration by maintaining the clause that ‘‘abortion is not permitted’’.
Notwithstanding any subsequent clarifications on the matter, such legislation raises many fundamental issues.
Firstly, it exposes a certain attitude towards the women of our country, implying, as it does, that they are unable to practise their sexuality responsibly and need constitutional control over their reproductive processes.
Given the patriarchal nature of our society, it is not surprising that all organs of constitutional review that have so far touched this matter have attempted to control what happens to a woman once she conceives.
Secondly, the wording of this clause is problematic because it is, quite simply put, nonsensical.
The lawyers will tell us that an important principle of law-making is that a law must not be made in vain.
All laws should be enforceable if they are to enjoy legitimacy within their jurisdiction. It is, therefore, nonsensical for a legislative body to enact a law that, for instance, provides that ‘‘there shall be no rain on Thursdays’’.
No legislature worth its salt would make such a law. It, therefore, beats logic why all the responsible organs, including the Committee of Experts and the PSC, allowed this ‘‘non-sense clause’’ to sneak through in the proposed draft. Saying that ‘‘abortion is not permitted’’ is akin to banning rain on Thursdays!
Just like nobody has any control on when such natural phenomena as rain will occur, it is exceedingly difficult to control abortion in nature.
Indeed, a significant proportion of women undergo what is known as ‘‘spontaneous abortion’’ where they lose pregnancies through no actions of their own.
In the first three months of pregnancy, a lot of abortions occur even before the women become aware that they are pregnant!
With a clause that categorically states that ‘‘abortion is not permitted’’, who will be responsible for these abortions?
Who will be penalised should it be discovered that a woman has had a spontaneous abortion?
More fundamentally, who is the custodian of this ‘‘permission’’ that is now being withdrawn from pregnant women?
It is in this light that one would comfortably refer to this clause as a ‘‘non-sense clause’’, and NARC-Kenya leader, Martha Karua, seemed to allude to this in her contribution on the floor of the House.
The only conceivable reason such a clause may have been sneaked into the proposed constitution is as a product of such deep-seated intolerance that its drafters were blinded to the fact that it was not within their realm to ‘‘permit’’ or refuse to permit abortion.
That the PSC went further and made even more nonsense of the clause by subsequently adding ‘‘saving clauses’’ only goes to show that reason was an afterthought in this process that was very clearly led by raw emotion.
It is, therefore, imperative that having examined the true nature of our beliefs and attitudes during this constitutional review process, we must now begin taking serious steps to address the biases and prejudices the process has exposed.
The proposed draft constitution must be scoured for similar instances of prejudice and intolerance and raked clean if this constitution is to last beyond one generation.
Alternatively, if the National Assembly passes it as it is and Kenyans accept it at a referendum, a process must be put in place to initiate amendment procedures in order to rationalise the document with the aspirations of a modern state.
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University School of Medicine