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Right to Life: Debate from the Womb to the Tomb

by Tom Kagwe
Tom Kagwe
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on Aug 15 in Economic, Social & Cultural Rights.
In the last few weeks, a lot of time has been taken debating on the RIGHT TO LIFE. Many have stated that termination of pregnancy (read abortion) must not be allowed. And if allowed, the Catholics and other Christian faithful will organize to vote NO at the upcoming referendum. No doubt, it is erroneous to terminate life. And the Word of God is clear in the Sixth of the Ten Commandments that reads: thou shall not kill. Indeed, the Roman Catholic Church uses the translation ‘kill’ (less specific and more inclusive) instead of ‘murder’, as seen in the Torah or the initial Ten Commandments. There is controversy as to which translation is more faithful (‘killing’ or ‘murder’), and both forms are quoted in support of many opposing ethical standpoints.

Further, while killing a human being is a capital sin, the same does not apply during war. Indeed, the Hebrew word for murder is retzach which is found in the Ten Commandments. The Old Testament (in Exodus 20:13) prohibits unjust killing, rather than a universal injunction against all killing, as retzach is never used in reference to the slaughtering of animals, nor the taking away life in a war situation. With regard to war, according to the Catechism of the Catholic Church, if rigorous conditions of moral legitimacy are met, the use of arms must not produce evils and disorders graver than the evil to be eliminated, and hence is not a violation because governments cannot be denied the right of lawful self-defense, once all peace efforts have failed.

With regard to abortion, many Christians (Catholics, along with many Lutherans) and Muslims consider abortion as sinful and a violation of the Sixth Commandment. Second, the right of States to execute criminals has not been fully resolved since to some it is not absolutely forbidden by the Sixth Commandment while to others capital punishment (read ‘death penalty’) should be fully outlawed. Nevertheless, the RIGHT TO LIFE is protected internationally. Article 6(1) of the International Covenant on Political and Civil Rights (ICCPR) states: “every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” Article 6(2) does not abolish the death penalty, but urges countries that have not outlawed it, only to impose it for “serious crimes”. Currently, only 58 countries actively practice it while 95 countries have abolished it. The others have not used it for 10 years or allow it only in exceptional circumstances such as wartime.

Debate on Draft

When we fast forward all these principles to current debate about the Proposed Constitution of Kenya (PCK), we see lack of a whole-some debate on the RIGHT TO LIFE. Indeed, most of the debate has concentrated on Article 26(4), which reads: “Abortion is not permitted 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”. And through partisan quotation of this Article, many have opined that the State has opened a window to what these NO ‘crusaders’ call “abortion on demand”. Some have asked about what “other written law”, should be and who or what informs these other laws. Today’s laws, which contain restrictive sections about abortion, are found in laws such as: the Penal Code itself, as quoted below; Criminal Procedure Code; and Public Health Act among others. Simply put; the Constitution cannot contain all laws, but is only a basis of guiding “other written laws”. Such Acts of Parliament constitute “other written laws”.

But when the above Article 26(4) is compared to Section 240 of the current Penal Code, then one sees no actual problem with drafting or meaning. Section 240 reads: “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.”. So perhaps the text missing is “there is need for emergency treatment”. But the “patient’s state at the time” as seen in the Penal Code is far much weaker than the phrase; “need for emergency treatment”. Further, Kenyans should realize that Section 240 is weak when it makes reference to a “person” rather than “a trained health professional” as seen in the PCK. Debate has also been on what “opinion” constitutes, but the Penal Code refers to “reasonable care”, which is the same thing.

Right to life today

There is need for a whole-some debate on the RIGHT TO LIFE and compare what are the net gains of the PCK are, as compared to the current Constitution. We need to see how the latter protects the RIGHT TO LIFE, and then contradistinguish the same provisions with the PCK. This is useful so that we make meaningful analysis of what the right is, and which provisions protect this right in a better way.

According to the current Constitution, there are 8 ways in which the RIGHT TO LIFE can be violated. The first way is contained in Section 71(1) that allows the Kenyan High Court to issue an ruling of ‘hang till death’, for criminals accused and found guilty of capital offences that include treason, murder, robbery with violence and attempted robbery with violence. Indeed, the Section states: “no person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the Law of Kenya of which he has been convicted”. If we were to debate the RIGHT TO LIFE fully, then such retrogressive sections should and must be eliminated from our law books. The PCK on the other hand provides: Article 26(1): “every person has the right to life”.

But when life must be taken away, and somewhat similar to Article 6 of the ICCPR quoted above, Article 26 (3) provides: “A person shall not be deprived of life intentionally, except to the extent authorized by this Constitution or other written law”. Two things need to be pointed out. First the constitution does not envisage any person losing their life save for circumstances that are contained in Article 26(4). And second therefore, all “other written law” must of necessity respect the RIGHT TO LIFE unless for executing what has been provided for in that Article 26(4).

No one shall be arbitrarily deprived of life. The other seven ways where the RIGHT TO LIFE can be arbitrarily violated and are included in Section 71(2), which states: “a person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use of force to such an extent as is reasonably justifiable in the circumstances of the case”: 1) for the defence of any person from violence; 2) for the defense of property; 3) in order to effect a lawful arrest; 4) to prevent the escape of a person lawfully detained; 5) for the purpose of suppressing a riot, insurrection or mutiny; 6) in order to prevent the commission by that person of a criminal offence; or finally, 7) if he dies as the result of a lawful act of war. Such broad and sweeping powers have always given to the Kenya Police Force, and other armed forces, powers to kill people with impunity. Due to such retrogressive ways, many have died in massacres, in mysterious circumstances, in legal and illegal confinements and/or in our streets openly while we are told of most wanted criminal. Indeed, Section 28 of the Police Act exposes these powers where “a police officer may use arms” to take away the RIGHT TO LIFE, and has only to show “reasonable grounds”.

Forward looking

These 8 circumstances point to a country that respects the RIGHT TO LIFE, only when it comes to matters of the womb, but after the person is born, then shauri yake. The debate on this right as led by Christian leaders seems to take this tangent. The leaders seem to care about protecting fetuses, and not anything or anyone else. Indeed, they seem not to care that current laws provide for abortion in the same circumstances. Second, they refuse to appreciate the need for a whole-some debate on this right. And finally they ignore that the RIGHT TO LIFE is guaranteed, protected and promoted better in the PCK than in the current Constitution.

As seen above, all the 8 circumstances that have brought a lot of suffering for all Kenyans will NEVER operate again and are NOT in the future constitution – the PCK. Indeed, Article 244 (c) and (d) of the PCK is very robust. It requires the National Police Service to: “comply with constitutional standards of human rights and fundamental freedoms; and train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity,” respectively. All those who violate the RIGHT TO LIFE will be prosecuted and the courts of tomorrow will use the Article 26 to rule whether someone has violated the right. So, every Kenyan must ask himself or herself, whether to vote YES or NO. The cards are on the table. What would you rather wager on? The current Constitution or the Proposed Constitution of Kenya? Think deeply before voting YES or NO to the latter.

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