Why is the Church saying “NO” to the Proposed Constitution? NPC Buruburu

Contentious Provisions Kadhi Courts - Article 170 Abortion - Article 26

Kadhi Courts Current Constitution provides as follows in Section 66:- (1) There shall be a Chief Kadhi and such number, not being less than three, of other Kadhis as may be prescribed by or under an Act of Parliament. (2) A person shall not be qualified to be appointed to hold or act in the office of Kadhi unless - (a) he professes the Muslim religion; and (b) he possesses such knowledge of the Muslim law applicable to any sect or sects of Muslims as qualifies him, in the opinion of the Judicial Service Commission, to hold a Kadhi's court. (3) Without prejudice to section 65 (1), there shall be such subordinate courts held by Kadhis as Parliament may establish and each Kadhi's court shall, subject to this Constitution, have such jurisdiction and powers as may be conferred on it by any law.

Kadhi Courts…cont (4) The Chief Kadhi and the other Kadhis, or the Chief Kadhi and such of the other Kadhis (not being less than three in number) as may be prescribed by or under an Act of Parliament, shall each be empowered to hold a Kadhi's court having jurisdiction within the former Protectorate or within such part of the former Protectorate as may be so prescribed: Provided that no part of the former Protectorate shall be outside the jurisdiction of some Kadhi's court.

Kadhi Courts…cont (5) The jurisdiction of a Kadhi's court shall extend to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion.

Kadhi Courts…cont Article 170 of the Proposed Constitution provides as follows:- 1) There shall be a Chief Kadhi and such number, not being fewer than three, of other Kadhis as may be prescribed by or under an Act of Parliament. (2) A person shall not be qualified to be appointed to hold or act in the office of Kadhi unless the person— professes the Muslim religion; and possesses such knowledge of the Muslim law applicable to any sects of Muslims as qualifies that person, in the opinion of the Judicial Service Commission, to hold a Kadhi’s court. (3)Parliament Shall establish Kadhi’s courts, each of which shall have the jurisdiction and powers conferred on it by legislation, subject to clause (4).

Kadhi Courts…cont (4)The Chief Kadhi and the other Kadhis, or the Chief Kadhi and such of the other Kadhis (not being fewer than three in number) as may be prescribed by or under an Act of Parliament, shall each be empowered to hold a Kadhi’s court having jurisdiction within Kenya. (6)The jurisdiction of a Kadhi’s court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.

Kadhi Courts…The Problem Jurisdiction now extended from the Protectorate (10 mile coastal strip) to the whole country Courts currently outside the 10Mile coastal strip are unconstitutional Historical reasons for this earlier clause (Agreement -Kenyatta & Sultan of Zanzibar) not considered Clause declaring all religions equal removed – effect is to elevate Islam above other religions - One religion entrenched in the Constitution The term “judicial Officer” now defined to include Kadhi (Article 260) Muslims recognized in the Bill of Rights and provisions of the Bill of Rights qualified (Article 24 (4)) with respect to Muslims Future amendments on Kadhi courts will require a long tedious process including a Referendum

Article 26 (4) - Abortion Article 26 of the Proposed Constitution provides as follows:- 26(1) Every person has the right to life. (2) The life of a person begins at conception. (3) A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law. (4) 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.

Abortion ….. Current law Section 240 of the Penal Act, Cap 63 of the Laws of Kenya provides as follows:- 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.

Abortion ….. cont (4) 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. Note:- 1. Decision to abort will be based on “Opinion” – earlier safeguards now liberalised 2. “Trained health professional” not defined 3. “or if permitted by any other written law”

Abortion ….. cont Which is the “other Law” envisaged in the Proposed Constitution in Article 26 (4)?

Reproductive Health Rights Bill

“Reproductive rights” Defined Reproductive rights include the right to: decide freely and responsibly the number, spacing and timing of their children, and to have access to safe, effective, affordable and acceptable methods of family planning of their choice; new and safe reproductive technologies, including artificial insemination; safe and accessible abortion services for women and adolescents, and abortion-related care;

Contentious provisions in the proposed RHR Bill Abortion made legal Access to Contraceptives to minors Removal of parental consent on sex education issues of adolescents – Bill encourages children to be sexually active The Bill inspires a spirit of defiance and rebellion amongst the children

Legalisation of Abortion A person may terminate a pregnancy only: a)Where the continuation of the pregnancy endangers the life of the woman or poses a risk of injury to her physical or mental health; or b) Where there is a severe fetal anomaly; or c)Where the pregnancy resulted from sexual assault, rape, or incest; d)At any time during the first twelve weeks of the pregnancy. The statement by the woman is adequate to prove that her pregnancy is the result of sexual assault, rape or incest.

Consent to terminate pregnancy termination of pregnancy may only take place with the consent of the pregnant woman. In the case of a pregnant minor, a practitioner shall advice the minor to consult with her parents, guardian or such other persons with parental responsibility over the said minor before the pregnancy is terminated. However only the minor’s consent is required in order to terminate the pregnancy.

Access To Contraceptives The Minister shall make regulations to improve access to high quality family planning information and services that involve a wide range of contraceptive methods that all persons can choose from. In particular he shall prescribe guidelines to: Guarantee all persons access to contraceptives;….

Way Forward Register as a Voter Read the Proposed Constitution – Understand the provisions - Sources – CoE Website, Government Press, kenyalawreports.org, copies distributed in newspapers etc Church to intensify in-house civic education Christians to apply to do civic education to avoid skewed interpretations and also participate and raise issues on the floor Whatever happens, be on God’s side, be counted as a “remnant for the cause of Christ”– this is a spiritual warfare

Psalms 33:10-12 The Lord foils the plans of the nations; He thwarts the purposes of the peoples, But the plans of the Lord stand firm for ever, The purposes of His heart through all generations. Blessed is the nation whose God is the Lord, the people He chose for His inheritance.