CONTENTIOUS ISSUES IN THE HARMONIZED DRAFT
Below, please find a summary of contentious issues we feel need to be revised for us to accept the
harmonized draft of the constitution.
We think it necessary to work with the Committee of Experts and all the other stakeholders in ensuring
that we get a good document that will direct us as a nation for the years to come.
A WORD TO THE COMMITTEE OF EXPERTS
As an organization, we would like to beg you to take note of a few points with regard to your privileged
position to provide the ultimate guidance for nearly 40 million Kenyans and their descendants. First,
kindly note that the decisions you make now will be binding for generations to come. They will apply to
us now, but also to your children and ours for many years to come. The freedoms, obligations, rights and
limitations thereof are not about paper work, lobbying or mere consensus. They are about determining
the total life of everyone in Kenya, both now and days to come. Hence, you need to conclude the
process with the solemnity it deserves.
Second, you are considered experts for a reason. If you succumb to any kind of political, economic,
social or even religious pressure, you would lose the right to be called experts with regard to giving
direction to the nation on this crucial matter. Right here, we beg you to uphold fact, reason, fairness,
common sense and a high sense of responsibility for anything you finally include in the draft. We must
be left seeing you as experts in the harmonization of all the issues, not as connivers or men and women
whose hands can be easily twisted. We have allowed your description as experts also for the reason that
we believe you can listen to everyone without tiring and accord them space because you have been
bequeathed with the power to make final decisions on their behalf.
Lastly, we would remind you that it is God who has allowed you to be in that position. There are many
Kenyans who could have been appointed to sit on the Committee of Experts, but God saw it fit for you
to. We are all created by Almighty God as our constitution acknowledges, and so, we are obligated to
represent Him fully. You may choose to listen to Kenyans or ignore them, but ultimately you will be
answerable to Almighty God, whether you believe in Him or not. If you choose to bypass His truth or
will, you will be judged by Him both in this life and in the life to come. You must thus take into account
everything He has plainly revealed and act responsibly to it.
It is with this in mind that we share our plea that you amend the following sections of the harmonized
draft constitution.
ARTICLE 10 (STATE AND RELIGION)
We are happy with the three clauses you have included, but the provision is incomplete. We need one
more clause – a clause (4) – which should read: “Despite the provisions in Clauses 1, 2 and 3, the state
shall not permit any religion to practice any ritual or exercise a belief that encourages
(a) The taking away of the life of a person.
(b) The use of fraud in the name of charity or propagation and
(c) The physical abuse of children in the name of religion.
The reason for this inclusion is that guaranteeing the equality of all religions by treating them the same
implies that the state will be unable to condemn any diabolical practices done in the name of religion,
e.g. ritual killings or merely killing for religious reasons. We are all aware that there have been ritual
killings of Albinos in East Africa for religious reasons. We know what happened in Northern Ireland
between the Catholics and Protestants. We also know what has happened in Nigeria where Muslims and
Christians have fought and even killed each other for religious reasons. We must make this criminal. We
are also aware of people who have fraudulently got money from faithfuls in the name of faith. We are
also aware of child trafficking for religious reasons. We must seal this loophole by expressly adding a
fourth clause in article 10. Some may argue that articles in the constitution are not to be read in
isolation, but certain emphases and qualifications throughout the harmonized draft prove my point of
making each article as complete and concise as possible.
ARTICLE 20 (CHILDREN FOUND IN KENYA AND ADOPTED CHILDREN)
Everything in this article is fine except clause (1) which provides that a child found in Kenya “who is or
appears to be less than eight years of age and whose nationality and parents are not known is presumed
to be a citizen by birth.”
This provision is subject to abuse by neighbouring countries, given the porous nature of our borders and
the increase in child trafficking. Neighbouring and other countries could dump their “street children” on
Kenya given this provision. We believe that parliament should be given the power to enact laws
regarding this matter.
CHAPTER 6 (THE BILL OF RIGHTS)
This is the most contentious chapter in the entire draft. Instead of providing for concise clauses that
should guide action, the Committee of Experts sets out to do quite a bit of the work of the courts, but
leaves everything to qualification. The problem is not entirely the provisions, but the language used
throughout. The tone sounds angry and legally utilitarian. Instead of simply and clearly declaring the
fundamental rights every Kenyan is entitled to, the chapter seeks to please everybody, and some groups
more than others. Articles 49 and 51 are a good example. Here, we see the literal lobbying of groups
rather than the harmonized provisions of the Committee. It is here that the Committee of Experts loses
its fairness and impartiality. The language of this chapter is subject to endless qualification and
interpretation. You can lose any right in this chapter, but you cannot gain any by using the provisions
accorded by the language. The Committee gives a right and takes it away a few clauses later.
In article 33, words and phrases such as “extent”, “reasonable and justifiable,”, “open and democratic”,
“relevant factors”, “nature” of the right or fundamental freedom, “importance”, “purpose”, “need”,
“relation between”, “whether there are less restrictive means”, “essential content”, etc are subject to
endless interpretation.
What we want here is a simple and concise statement of what is inalienable to every Kenyan without
trying to fight for certain loby groups through verbosity. The question is, what fundamental right does
the Kenyan have that nobody should take away; not what one person likes or dislikes. We, for instance,
have a right to life, education, health, speech, etc, but nobody should include among fundamental rights
exemptions and qualifications intended to put one person or group over another in the constitution.
The application of the rights in this chapter are overqualified and sets out to do the work of the courts.
The entire chapter is horrible, but suffice it to give the example of exempting persons who profess the
Muslim faith from the provisions of this chapter as seen in article 33 clause 4:
(4) The provisions of this Chapter on equality shall be qualified to the
extent strictly necessary for the application of Islamic law to persons
who profess the Muslim faith in relation to personal status, marriage,
divorce and inheritance.
It seems as if this is a provision intended to secure the religious freedom of the Muslim. But, if a Muslim
has a problem with what is settled under this provision, where does he/she go? The constitution puts
the Muslim above this provision; thus discriminating against others, but leaving the Muslim with no
other alternative within the constitution. Besides, the constitution is supposed to treat all religions
equally. Why this qualification for Muslims? It means their faith is considered by the state to be more
special. For several reasons, we request that this clause in particular be expunged.
ARTICLE 35 (THE RIGHT TO LIFE)
Here, the Committee of Experts is both irresponsible and out rightly partisan and prejudiced. Usually,
compromise means that having half a loaf is better than having no loaf at all. This is not the case here.
The arm of the Committee has been twisted to decriminalize abortion in the constitution. Both the
Bomas and Wako Drafts had two clauses that you have decided to leave out, namely:
“The life of a person begins at conception” and “Abortion is not permitted except as may be provided
for by an act of parliament.”
This was “half a loaf” in the harmonization process. Why were these two clauses taken out if it is not to
provide for abortion?
Notably, according to Article 45 (human dignity), the remains of a dead person have rights, but the
unborn child who, medically speaking is a full living person, has no stated rights and no stated human
dignity.
The aim is to decriminalize abortion is further provided for in Article 62(health) which states in clause 1
that every person has the right to health, which includes the right to health care services, but then adds
another point, “including reproductive health care”. If one has the right to health care services, it is
clear. If, however, we are to qualify each kind of care, then why single out “reproductive health” and not
mental health care, nutritional care, etc? Why doesn’t clause 2 define emergency medical treatment?
Besides, Article 35 does not define when life ends. Neither does it tell us whether, as a country, we are
for or against capital punishment, especially for capital crimes. What about killing for self defence? How
are we to treat euthanasia and infanticide? What about killing in a state of war or the protection of
property?
There is no constitution that generalizes on the right to life the way the experts have. As a matter of
fact, the current constitution in its Article 71 gives more light on this matter. Why it is not a reference
point in harmonizing the right to take away life, for instance, is not clear.
Our proposal is thus that Article 35 includes the following:
1. Every person has the right to life.
2. The life of a person begins at conception and ends at natural death.
3. Abortion is not permitted in Kenya except when the life of the mother is in danger.
4. Capital punishment is not permitted in Kenya except for capital crimes.
ARTICLE 42 (THE FAMILY)
Kindly expunge clause 3 and revert to the Wako Draft on this matter.
ARTICLE 49 (FREEDOM OF CONSCIENCE, RELIGION, BELIEF AND OPINION)
If the article is to remain as is, then kindly include a clause permitting a person to change from one
religion to another at will.
The clause could read: “Every person has the right to change from one religion to another.
ARTICLE 51 (FREEDOM OF THE MEDIA)
We are media owners ourselves and find this unacceptable both in wording and intent.
A media without an amount of control or accountability is a rogue tool. It can only destroy. The media
has been put above the state and above the law. Only state-owned media is supposed to be fair and
needs to check content. This is unacceptable. Some clear clauses on media accountability need to be
included.
We all know how the Kenyan media has contributed to violence in the country through incitement. If we
are to secure the freedoms provided for in this chapter, the media needs to be made accountable as
well. Please note that the media is simply a channel of communication and should, as a channel, be
divorced from the individuals who use it. These individuals should be made fully accountable for what
they put in the media. Besides, consumers of media content should be protected in this article. The
article as is, is completely unacceptable.
ARTICLE 209 (THE KADHIS COURTS)
Dear Experts, these are religious courts. By providing for them in the constitution, you are putting the
Islamic faith above other faiths, which is a violation of Article 10. Besides, there is the usage of the word
“protectorate” in this article. Do we still have a protectorate in Kenya? If we must include the Kadhis’
courts in the constitution, since they are subordinate courts, then let the Chief Justice be given the
power to provide for legislation on such courts. The constitution must be seen to be clearly impartial.
The Christian community in particular feels the Committee has been arm-twisted to favour Islam, given
Article 33:4 as well.
Email: info@wtmkenya.org
P.O. Box 3608, Eldoret, Kenya
Tel: 053-2061130
Web: www.wtmkenya.org
Cell: 0733-725 273, 0710 384 384