The COE Draft – Troublesome aspects from moral perspective

Background

Every replacement of one constitution with another is an opportunity for substantial changes in the way society operates. Kenya’s constitution review process is no exception – it intends to catalyse social engineering on a large scale. This may be a good, bad or indifferent thing depending on what is being changed. But what we need to inform ourselves of is that there will be many changes to our society.

From a legal perspective, the changes will come in 3 ways:

1. The Constitution enacts new articles, establishes new institutions and frames new legal principles.

2. Numerous Acts of Parliament are required to be enacted under the COE draft (see e.g. 5th Schedule). Also numerous provisions in existing Acts of Parliament will become invalid immediately because of inconsistency with the COE draft.

3. The Courts will become the principal driver of constitutional interpretation. They are expected to be proactive, even activist, and to develop the law (art 20(3)(a)) and adopt expansive and purposive doctrine of interpretation on the principle that the law is always speaking (art 259(3)).

Human rights provisions

Troublesome aspects of the COE draft will mainly be found in the human rights provisions, since it is a wrong understanding of human rights that has often been used in contemporary Western law and philosophy to attack the moral fibre of society. To this end it is important to note that article 2 of COE draft actually makes international law, both conventional and customary, a source of law in Kenya. This is a radical departure from the current position, where international law has to be domesticated through Acts of Parliament before binding the country’s nationals in the municipal legal arena.

Further, article 20 of the COE draft urges the Court to adopt the “spirit, purport and objects of the Bill of Rights”, hence to favour the widest possible enforcement of the Bill of Rights. Also art 21(4) expressly asks the State to “enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms.” This is a good thing on the surface; however, what goes for human rights in the international arena includes the full homosexual agenda, abortion, euthanasia, etc.

The UN Human Rights Committee, set up under the 1966 International Covenant on Civil and Political Rights, routinely urges nations to liberalise abortion and homosexual laws purportedly under authority from the Covenant. The same thing happens with the Convention for the Elimination of all forms of Discrimination Against Women (CEDAW) and the Convention for the Rights of the Child. The UN Fund for Population Activities (UNFPA) has long been activist in spreading contraception and abortion, and seeks to urge governments to fund all these activities.

The interpretations and observations of these bodies will now be a source of law in Kenya, which means that they can be legitimately used in interpreting the provisions of the Constitution and of other laws. This is tragic.

Kindly also note that because of the high amendment threshold for human rights provisions under the COE draft (including a popular referendum; see art 255, 256, 257), most interpretations given by the Courts will effectively become part of the Constitution. This is how the US Supreme Court made the right to privacy then the right to abortion constitutional rights in America (thru 1965 Griswold v Conneticut and 1973 Roe v Wade). Although no such rights exist in the text of the American Constitution, the judicial decisions effectively introduced those rights into the constitutional law of the land.

Specific human rights provisions

At the outset, it should be noted that the COE draft (following the previous drafts) adopts a generally imprecise approach to statement of human rights. The current Constitution contains specific wording on rights and derogations to those rights. The COE draft has very few derogations, undesirable reliance on what future Acts of Parliament will say, several euphemisms and expansive grants of rights that could bring problems in future.

Some of the troublesome provisions include:

1. Art 26 – Right to life. Art 26(3) “except to the extent authorised... or other written law.” This is problematic because it allows an Act of Parliament to derogate from the general constitutional right to life. Art 26(4) – The whole clause is problematic because it authorises abortion, because it talks of the individual unverified opinion of a health professional, because of the health of the mother exception and because it allows any other written law to derogate from the constitution.

2. Art 27 – Equality and freedom from discrimination. Art 27(4) introduces new prohibited grounds of discrimination i.e. pregnancy, marital status, health status, age, disability, religion, conscience, belief, culture, dress and language. Art 27(5) introduces an even larger expansion of rights against discrimination by extending the corresponding duty from the State and public persons to all other persons! Finally art 27(8) requires the State to take measures to ensure that all elective and appointive bodies have at least one third of members from each gender. It is not defined whether “bodies” means state, public or all bodies including private entities. The implications are astounding:

   1. Some of the new prohibited grounds will introduce into our jurisdiction several of the problems being confronted by persons in some Western countries. E.g. churches and religious institutions having problems denying non-adherents certain services, schools being forced to integrate boys and girls, persons having a constitutional right to wear whatever they want and even to walk around in a state of undress in institutions, etc.

   2. The extension of the duty against discrimination to private persons will cause untold mischief. I don’t think I need to spell out the various scenarios. Think about the ground “age” for instance.

   3. Also sub-clause 8 has potential minefields if the courts were to later interpret bodies (as per their mandate for expansive interpretation of the bill of rights) to include private bodies e.g. private schools, churches, etc. It is not a far-fetched possibility.

3. Art 29 – Freedom and security of the person. Art 29(d) prohibits torture in any manner, where physical or psychological. Art 29(e) prohibits corporal punishment. The concern is with psychological torture and corporal punishment, which basically means that parents will find it difficult to punish their children without potentially contravening the Constitution. Mainly because the clause is worded in too generic a form. The State will eventually become more intrusive into family life through some form of Child Protection Services.

4. Art 30 – Slavery, servitude and forced labour. Art 30(2) prohibits forced labour. Because of the casual way in which the sub-clause is worded, this will mean even punishment in schools that involves labour, or any compelled labour even in homes is now proscribed.

5. Art 31 – The right to privacy has been made an absolute right without any derogations. I can’t begin to say how poorly this article has been worded.

6. Art 32 – Freedom of conscience, religion, belief and opinion. Interestingly, the imprecise wording of the COE draft has even managed to render the clause on conscience and free exercise of religion problematic. Art 32(3) states that a person may not be denied access to any institution, employment or facility... because of the person’s belief or religion. What this means is that only where the COE draft expressly provides otherwise (e.g. Kadhis’ Courts, religious practice (art 32(2)) will it be permissible to discriminate based on religion. So this excludes Church sponsored schools or indeed any other public or private institution. This also excludes any other activity that the Churches or other public or private institutions may be engaged in.

7. Art 33 – Freedom of expression. Art 33(1)(c). Freedom of artistic creativity – if not defined often ends up as a simple euphemism for pornography. Our current Constitution expressly derogates from the freedom of expression to the extent reasonably required in the interests of defence, public safety, public order, public morality or public health. You tell me what the absence of derogations from the COE draft implies.
   Further, art 33(2)(c) expressly excludes hate speech and 33(2)(d) extends this to advocacy of hatred that constitutes vilification of others or is based on any ground of discrimination. Due to the casual way these rights have been worded, we may potentially find ourselves hindered from ever expressing our opinions on those defined groups falling under a discrimination category. In the Nordic countries, the UK and Canada, Christian preachers have been prosecuted for hate speech, for example for preaching against homosexuality or maybe atheism in our case.

8. Art 34 – Freedom of the media. There has been a long discussion between industry players and the Government on the content and regulation of the media in Kenya, culminating in the Media Act (2008?). Art 34 jettisons the achieved consensus and seeks to free the media of any control by government, political interests or commercial interests. Ask yourself how is this possible? Aren’t the owners of the media house commercial interest? Don’t political entities have the right to set up and run media stations? Shouldn’t the public interest in ensuring fairness in airwaves, access to information, decency, etc be provided for?

9. Art 43 – Economic and social rights. Art 43(1)(a) creates a right to reproductive health care. This clause is a very unnecessary clause. First because it is subsumed under the general right to health care and is thus mere surplusage. Second because the human body has numerous physiological systems including circulatory, respiratory, muscular, skeletal, nervous, excretory, digestive, hormonal, etc and there is no reason why the reproductive system should get preferential mention. Third because reproductive health care is often used in certain sectors of the international community as a euphemism for a right to abortion.
   Art 43(2) talks about emergency medical treatment. This should be restricted to life-threatening or similar situations. Otherwise a situation where any sickness becomes deemed an emergency by the courts, or morning after pills become deemed emergency treatment, will develop.

10. Art 59 – This creates the Kenya National Human Rights and Equality Commission. This Commission will become a very powerful organ in Kenya’s future legal landscape under the COE Draft. It will have enforcement powers, investigative and determinative powers, etc. In art 59(1)(f), it is required to ensure compliance with obligations under treaties and conventions relating to human rights, and will thus be at the forefront of introducing to Kenya the understanding of foreign activist human rights bodies on moral issues.

Conclusion

The COE draft fails to capture the aspirations of Kenya’s moral majority, and lays the basis for a liberalisation and tearing down of the moral fabric of our society. This is a pity and is a sign that the COE draft is not really in the best interests of Kenyans.

If you read the draft, you notice numerous problems with the document. You notice for example that:

1. International law will now become a direct source of Kenya law (art 2). This is good for the international community, but severely affects our country’s sovereignty. No wonder the diplomats are happy.

2. The number of MPs in Parliament will be increased from 222 by an extra 127 MPs and 68 Senators (art 97, 98). This almost doubles our MPs, who will earn substantial taxpayers money despite 84% of Kenyans in Synovate’s recent poll saying they prefer number of MPs to remain the same or decrease. No wonder politicians are happy.

3. The media (art 34) is to be fully freed of control from any government, political or commercial interests (whatever that means). No wonder the media are happy.

4. The principal issues that led to the clamour for constitutional reform and the chaos of 2008 were (a) too much power in the Executive, (b) too much power in Central Government and (c) fiddling with the electoral process especially through unilateral Presidential appointment of electoral commissioners. It is debatable whether there is any substantial improvement in these areas:
   (a) The Executive with a majority party will now be more powerful than before. This is the norm with presidential systems like USA (No wonder power hungry cliques are happy).
   (b) Local government will effectively be replaced with county government in a cosmetic change that does not devolve power. There will be only 46 counties while there were __ local authorities. Senate is weak; funding sources haven’t changed. (No wonder central government is happy)
   (c) The President is still responsible for appointing electoral commissioners save that this requires prior approval of Parliament, and an Act of Parliament may specify further conditions. In contrast, the current Constitution after 2008 amendment requires electoral commissioners to be nominated by the Parliamentary Select Committee through a competitive process and upon approval by the National Assembly to be appointed by the President in consultation with the Prime Minister. (Do you seriously believe that the COE draft will reduce or eliminate electoral fraud in Kenya?)

5. Meanwhile, the moral majority has been left with a document that does not take care of their interests. Only 6% of Kenyans know a great deal about the COE draft according to Synovate’s poll while 67% of Kenyans know nothing or very little. It will be a pity that this majority will be led to vote for the draft by the vested interests indicated above.

Now the Yes camp is led by the government, cheered on by the media and supported by the international community. Government is using taxpayer funds despite the Electoral Code of Conduct and are confident that they will lead Kenyans to this over-hyped new Constitution. It will be interesting to see whether Kenyans are able to see beyond their game. Are rank-and-file Kenyans more political than moral? The referendum will tell.

Charles Kanjama, 29/4/10.

(The author is an Advocate of the High Court of Kenya practising in Nairobi).