Greetings in the name of the Risen Lord.
We are all aware that a Referendum on the Proposed Constitution for Kenya will take place later in 2010. As Bishops of the Catholic Church in Kenya, we are supportive of a new Constitutional Order for our country and have worked long and hard to bring the process to its present state. We encourage all of you to prepare carefully for this important event by first of all registering, and then on Referendum day, to go out and vote.
It is our duty, as moral leaders and shepherds of the Catholic Church in Kenya, to present for your reflection certain, serious problems connected with Article 26 (paragraph 4) of the Proposed Constitution. In order to refresh your memories, this article states:
“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”.
If this article is maintained in the Proposed Constitution as it is, we will be compelled based on moral grounds to advise the people of Kenya to vote NO.
To begin with, let us be clear on one point. The Catholic Church has always recognised the “emergency” situation when the life of the mother is in danger. The mother has a right to treatment in life-threatening situations. But we have always recognised that both the mother and the unborn child have an equal, personal right to life.
This is already recognised in the Kenya Penal Code. The physician must do all in his/her power to save the lives of both mother and child. The doctor, by his/her Hypocratic Oath, is bound to save and protect life. The State must expressly state in its Law to respect, defend and vindicate the rights of both mother and child.
But then, in extending the right of abortion to include a threat to the health of the pregnant woman, the article is opening the doors to “abortion on demand”. Those of us who live close to the people know that very many women suffer from ill-health in Kenya. There are many endemic diseases throughout this country. Most of them are preventable and treatable.
Is a danger to the health of the mother a sufficient reason to abort a child in the womb? Is the stress which a young schoolgirl undergoes on discovering that she is pregnant a sufficient threat to her health, so that she can demand and obtain an abortion? Further, on the other side of the economic scale, there are elitist groups who demand that abortion be legalised on spurious health grounds, such as “psychological damage to the ego”, body image or even the need to be accepted among one’s peers. All these are social problems – needing various social responses. They should not be addressed as medical - needing medical solutions.
Where there is a danger to the health of the mother is when she has procured an abortion. There are many “trained health professionals” who vouch for the fact that the guilt or trauma known as “post abortion syndrome” is a factor that can damage a woman’s emotional life. This is a result of aborting the child – an act that cannot be reversed.
There is another point in Article 26 (paragraph 4) which is not clear. What does it mean by “a trained health professional”? Is it a medical doctor, a clinical officer, a nurse, a mid-wife, a patient attendant or a Traditional Birth Attendant? All are “trained health professionals”. In any law – and particularly in the fundamental law being proposed for a country – the people have a right to precision before being asked to commit themselves to something. Clarification is needed from those who wrote and passed the Draft. We need to know the mind of the legislators. Then it can be stated clearly in the proposed article.
A final ambiguity with Article 26 (paragraph 4) is the phrase “any other written law”. The Constitution is the supreme law of the land. Are we satisfied with assurances or even MOUs that “changes can take place after the Referendum”? Are we prepared to allow Parliament or a majority of counties to pass other laws on issues of life and death? What is “a majority” in Parliament or of counties – referred to in Article 257 (vii) and (viii)? Do we want another Referendum in the near future? (Article 257 (x)? Can we financially afford this? Do we wish to spend time and money in seeking interpretations from the Judiciary?
“Nothing and no one can in any way permit the killing of an innocent human being, whether foetus or an embryo, an infant or an adult, an old person or one suffering from an incurable disease or a person who is dying”. (Compendium of the Social Teaching of the Church No. 108).
“We are called upon to do as much as we can to defend the lives of unborn children, who cannot of their nature, defend themselves….Once abortion is sanctioned by parliament and the law, it becomes “OK” in the minds of many, and as a result a society loses its respect for the value of human life. Such a society is not a good society: the practice of abortion has a morally corrosive effect”. (A Catholic Catechism No. 332).
1. That the Clause 26 (4) be removed from the Draft Constitution.
The President has stated on at least two public occasions that abortion would not be allowed in any proposed Constitution for Kenya.
The responsibility is now squarely in the hands of the “Two Principals” – President Mwai Kibaki and Prime Minister Raila Odinga.
2. That all Catholics will hold a Prayer Day in Defence of Human Life. The date, manner and content for this Prayer Day will be communicated at a later date.
Now we turn to Articles 169, 170 and 172(a). The Question of the Kadhi courts has been linked by commentators to our views on Article 26. There is no such link.
In brief, the articles establish Kadhi Courts as part of our judiciary. In so doing they give a special treatment, to a section of the population that professes the Muslim religion. These courts would then be funded by the state.
The debate on Kadhi courts has been widely misunderstood and has created a lot of unnecessary suspicion amongst Kenyans on the basis of religion. It is not a Christians versus Muslims affair. It is simply about equality of all before the state. Here we are stating an anomaly that is in the current constitution and still maintained in the proposed constitution.
It is a question of Justice, not to give privileges to certain Kenyans (as opposed to others) because of their religion, race or tribe. That is the beginning of discrimination - more so if the issue refers to a religious group. What we are stating is that there is no equity. This right is only reserved to those professing one faith.
Justice calls that the Constitution provide similar rights to other religious groups. This could be regulated by Acts of Parliament. All the Christian churches, Hinduism, Islam, Catholicism etc. which have legitimate concerns, fears or expectations, should rectify and consolidate these through Acts of Parliament.
All are equal before the supreme law of the land and therefore need to be granted equal opportunity to enjoy all the liberties accorded to others.
In allowing certain groups, whether religious, tribal, geographic or otherwise to negotiate special privileges that will be enshrined in the constitution, then we shall be going against the very fundamental principle that we are all equal. We believe a solution can be found to provide for the equity that justice calls for and requires.
Let all religions be treated equally as provided for in the very Proposed Constitution. “There shall be no state religion” (Article 8).
In conclusion, our dear brothers and sisters, we assure you that we are praying with you and for you as we discern the best way forward for Kenya. As your shepherds, we have tried to put forward on many occasions to all forms of committees, groups, commissions and individuals, the legitimate concerns which we have in our hearts concerning these two Articles of the Proposed Constitution. Our patriotism and commitment, and that of the estimated Catholic population of one third of the people of this land (who are drawn from all parts of Kenya) have never been in doubt. The contribution of the Catholic Church to the physical, moral, spiritual, intellectual and developmental aspects of all over the past one hundred years is a matter of public record. We assure you and the people of Kenya that this commitment will continue.
May the Lord strengthen all of us.
His Eminence John Cardinal Njue;
Archbishop of Nairobi.
Apostolic Administrator of Ngong
Chairman, Kenya Episcopal Conference
1. Rt. Rev. Philip Sulumeti - KEC Vice Chairman (Kakamega)
2. Most Rev. Zacchaeus Okoth (Kisumu)
3. Most Rev. Boniface Lele (Mombasa)
4. Most Rev. Peter Kairo (Nyeri)
5. Rt. Rev. Paul Darmanin (Garissa)
- Apostolic Administrator (Malindi)
6. Rt. Rev. Cornelius K. Arap Korir (Eldoret)
7. Rt. Rev. Joseph Mairura Okemwa(Kisii)
8. Rt. Rev. Philip Anyolo (Homa Bay)
9. Rt. Rev. Alfred Rotich (Military Ordinariate )
10. Rt. Rev. Maurice Crowley (Kitale)
11. Rt. Rev. Norman King’oo Wambua (Bungoma)
12. Rt. Rev. Peter Kihara, IMC (Marsabit)
13. Rt. Rev. David Kamau Ng’ang’a- (Auxiliary Bishop Nairobi)
14. Rt. Rev. Anthony Ireri Mukobo, IMC (Isiolo Vicariate)
15. Rt. Rev. Patrick Harrington (Lodwar)
16. Rt. Rev. Virgilio Pante (Maralal )
17. Rt. Rev. Salesius Mugambi (Meru)
18. Rt. Rev. Luigi Paiaro (Nyahururu)
19. Rt. Rev. Emmanuel Okombo (Kericho)
20. Rt. Rev. Martin Kivuva Musonde (Machakos)
21. Rt. Rev. Anthony Muheria (Kitui)
22. Rt. Rev. James Maria Wainaina (Muranga)
23. Rt. Rev. Paul Kariuki Njiru (Embu)
24. Rt. Rev. Maurice Muhatia Makumba (Nakuru)
25. Rt. Rev. Dominic Kimengich – (Aux. Bishop Elect Lodwar)
Thursday, 15th April 2010
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