Kenyan Women’s Rights and Constitution – Challenging ‘Men of Faith’

What gives a church in which celibacy is equated with holiness, in which males have all the undemocratic power, the right to a place at the table where laws are made about women’s bodies?

A large number of contradictions have arisen in the Kenyan debate on the new constitution just passed through the Kenyan parliament in preparation for a referendum scheduled for 2 July 2010, and particularly around the clauses on the right to abortion.

We are Kenyan women in the diaspora who have struggled with other women in Kenya and other nations on the right to life for the mother as well as the unborn child. With CEDAW (Convention on the Elimination of all Forms of Discrimination against Women) and the African Charter on Human and People’s Rights, particularly the Protocol on the Rights of Women in Africa, established, we wish to join a debate which is a fundamental concern over the fundamental right to life and which is critical in the bill of rights and the Universal Declaration of Human Rights.

However, we would like to state from the outset that this debate is currently moribund as far as the referendum is concerned as time has lapsed in relation to the act. Opening the door now to one group of people will raise further questions about democracy and the rule of law. As women, whose lives and bodies this is all about, we therefore cannot remain silent as we do not believe that those who purport to represent us either seek our view or care about our humanity. We have to question the protests by religious groups and politicians such as William Ruto, who hope to manipulate the ignorance and vulnerability of the faithful to jettison the new constitution on this specific aspect on emotive and pseudo-religious grounds. We believe that they are seeking power and hiding behind religion to derail what is a very important document in our lives as Kenyans, the new Kenyan constitution, which we unequivocally support as it gives all Kenyans greater protection, rights and freedoms than the old one.

In reality, the current position is that the clause itself to make abortion legal was not introduced in the new constitution, nor the old and existing law relating to the termination of pregnancy on medical grounds deleted. A vote, for or against the new constitution will therefore not change anything on this question.

The clause in question is Section 26 (2) of the new draft constitution, which says ‘every person has a right to life and that life begins at conception’, while Section 26 (4) allows the termination of a pregnancy when in the opinion of trained health professionals there is a need for emergency treatment, or the life or health of the mother is in danger. Allowing abortion during a medical emergency is nothing new in Kenyan law. Under the current law it is legally permissible to carry out an abortion to save the life of the mother. Section 240 of the penal code, which was drafted in 1930 and has never raised any controversy, states: ‘A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.’

All this means that the church leaders are being dishonest when they cite abortion as one of the main reasons for their opposition to the draft constitution.

Nonetheless, the NCCK (National Council of Churches of Kenya) has gone on record as saying they will and are indeed already mobilising their constituency to defeat the constitution in the referendum, and the Catholic church and conservative elements in the political classes have promised the same.

The key questions of women’s human rights – of a woman’s right to determine her life and destiny – will be left to institutions in which women have little democratic representation or say owing to their historical structures and cultural practices, for instance, in the Catholic church hierarchy and its make-up of only male priesthoods who are supposed to practice celibacy as religious norm. Furthermore, in the wider political context, such a significant voice cannot be said to be democratic in its representation nor sympathetic, by its experiences, to the plight of women and their bodies. How else can one explain that Article 43 of the new draft, which states that every person has a right to the highest attainable standard of health (which includes the right to healthcare services including reproductive healthcare), is similarly seen with suspicion by the men of the church as another way of smuggling in abortion?

We have witnessed the agony of women caught in catch-22 type situations. Some of these are married women in need of contraceptives to avoid those accidents of unwanted pregnancy especially, where they too cannot make decisions when and how to have sex.

Even when contraceptives are available and women are ready to use them or persuade their male partners to use condoms, the men of the church, especially those of the Catholic church, forbid contraceptive use and burden women with what they call the natural method. The women are thus forced to make a choice of the better evil. Often they choose contraceptives, but thereafter carry the psychological burden of perpetually ‘living in sin’. If any misfortune befalls them or their family, say, they or somebody else in their family falls ill, they carry the burden of guilt as they believe this to be punishment for doing what the men of the church forbid. These are the lucky few compared to the millions of women who, even when mass- and gang-raped (as was the case during Kenya’s post-election violence) and become pregnant, are not allowed to have a safe abortion.

With little choice, up to 300,000 women undergo backstreet, unsafe abortions in Kenya each year, though abortion is banned. If they are lucky not to be part of the 3,000 women who die annually as a result of these unsafe abortions, they may be injured and traumatised for life. This is because of the illegal nature of the abortions which they cannot talk about or seek medical, counselling or moral support for. The traumas associated with illegal abortion are well-documented, while the link with HIV/AIDS and other sexually transmitted diseases is also only too clear. This further violates the women’s right to life in a context where she would find it difficult to violate her conjugal responsibilities.

The majority of those who seek abortion are young women under 25 years of age. This is of course termed as criminal because those who have the power to change the law for the benefit of women find no need to do so, and those who have the need to change the law have no power to do so. Instead the blame is solely on the powerless women, a blame-the-victim syndrome.

The message from the men of the church is that women should abstain or be faithful to avoid ungodly sex and abortion. No, being faithful is no option either because the men of the Catholic church neither allow contraceptive use within or outside marriage, nor sexual education for the young and unmarried. This prohibitive script and history of the church is loud and clear, as is evident from the following scenarios.

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