Why the church may say Yes to draft law

Church leaders may drop their No stance to the constitution draft after a meeting with lawyers.

The church leaders agreed to soften their opposition to the draft after lawyers who are also Cabinet ministers showed them a way out on their unyielding stand on abortion.

Lawyers in the Cabinet pointed out to them clauses in the current and proposed constitutions that undermine the church’s unyielding stand on abortion during a meeting on Thursday.

The meeting has raised hopes that should clergy withdraw from the ‘No’ camp this would significantly boost the chances of a successful conclusion of the latest review round.

Penal code

Sources at the meeting between President Kibaki, Prime Minister Raila Odinga, Vice President Kalonzo Musyoka and senior members of the clergy said the church leaders seemed taken aback when Justice Minister Mutula Kilonzo pointed out that the clause they have complained about in the proposed constitution already exists in the penal code.

Mr Kilonzo and Lands minister James Orengo pointed out that the proposed constitution had made it even harder to procure an abortion than the current law, because it expressly states that abortion is not permitted.

It had also elevated the provision from the penal code to the constitution, they said.

That clarification, according to sources at the meeting is said to have caused the church leaders to relax the uncompromising stand they took into the talks.

Section 26 (4) of the draft constitution states that abortion is not permitted unless the life or health of the mother is in danger, “or if permitted by any other written law.”

Breakthrough

But the Justice minister told the church leaders that the current penal code makes similar provisions.

The parties resolved to form a 10-member committee to unlock the deadlock which is seen as a major breakthrough in the search for a new constitution.

The church objects to the section of Article 26 which empowers doctors to end a pregnancy if it endangers the woman’s life or she needs emergency treatment.

Christian leaders are also opposed to the retention of kadhis’ courts in the proposed Constitution under Article 169 and 170, which limit their authority to disputes over personal status, marriage, divorce or inheritance, where all the parties are Muslims and agree to take the case to a Kadhi.

The church’s adamant opposition to the abortion clauses in the draft and the kadhi’s court were seen as among the biggest threats to the enactment of a new Constitution.

However, their position that the kadhi’s court should not be enshrined in the constitution remained unchanged even after the Thursday meeting, pending the work of the 10-member team.

In an interview on Saturday, National Council of Churches of Kenya secretary-general Peter Karanja told the Sunday Nation: “I’m completely optimistic and I have confidence in the commitment the President and Prime Minister made that a settlement will be arrived at,” he said.

An avenue proposed to the church was Section 257 (1) of the draft which allows changes to the constitution through raising one million signatures from registered voters.

The proposed changes would come into law if approved by a majority of counties or Parliament. Should parliament reject the proposal, the initiative can be subjected to a referendum and if it wins popular support, it comes into law.

Mr Kilonzo is said to have pointed out that with Kenya’s large Christian population, the church could easily raise the million signatures.

Attorney-General Amos Wako told the church leaders that there were no reasonable grounds for a dispute between the church and the state because nobody in the government supports abortion.

Catholic Church’s John Cardinal Njue is said to have asked the president what guarantees there were that abortion would not be permitted under the new constitutional order.

But Mr Kilonzo said it would be impossible to offer such guarantees, saying “even the people who commit abortions are Kenyans” and the president could have no way of stopping all abortions.

Mr Kilonzo said: “I oppose abortion. But we must be realistic and recognise that not every woman who is heavy with child will have an uncomplicated pregnancy. There will be those suffering from diabetes or high blood pressure who the doctor may determine are at risk of losing their lives. Also when the foetus develops in the fallopian tube, these are terminated because if allowed to go to full term, the fallopian tube will burst and the mother will die.”

On the kadhi’s courts, Mr Kilonzo said the government did not want to be seen as suppressing Muslims.

Tourism Minister Najib Balala supported this and said he would vote ‘Yes’ for the draft because it recognises the rights of Muslims and creates a form of devolution.

“Although the draft did not give us the majimbo we were looking for, it gives us mini-majimbo. People from upcountry will never approve majimbo because of fear. We should pass it.”

Parliament approved the draft submitted by the committee of experts on April 1, raising hope of a successful end to the nation’s decades-long search for a new constitution. A referendum on the draft is expected by July 2.