On Abortion

In the heated debate over whether Dr Willy Mutunga is suited to be our next CJ, using his positions on homosexuality and abortion to reject his nomination, a critical consideration of abortion has not been conducted. It should go without saying that no woman immediately considers the termination of a pregnancy, even if it was caused without her consent or without planning. The decision to terminate one is usually arrived after a careful consideration of all alternatives, including psychological and social ones. The debate surrounding abortion in Kenya, it seems, has cut out women from the conversation, seeing that it is men who seem to have the most strident opinions on the matter, holding themselves out to be the moral defenders of the right to life.

The Chairman of the Constitution Implementation Oversight Committee was quite adamant that abortion is not permitted under the Constitution. He is half right. It is not permitted, except in certain circumstances. The Constitutional interpretation of the Right-to-Life Clause in the Constitution will occupy the minds of the Judges of the High Court, Court of Appeal and Supreme Court soon enough, and it will be interesting to see the manner in which the legal debate is phrased during the hearings, and whether the interested parties in the debate will abide by the decisions of the three Courts. Just as in the United States, the Supreme Court of Kenya is set to declare what the true interpretation of the Constitution is regarding this knotty question; without a doubt, this decision will divide Kenyans into warring camps.

The Church in Kenya, for the most part, is headed by men. Very few women head churches in Kenya, or church organisations, or play a dominant role in shaping church doctrine or policy. As a result, an impression has been created that church leadership in Kenya is the preserve of men, at least when looked at from the perspective of the major churches such as the Roman Catholic Church and the Anglican Church. Women church leaders dominate in the evangelical and Pentecostal churches, which also see to espouse some of the most conservative aspects of Christian doctrine. As it is, therefor, many vulnerable women cannot expect the support of the church in making decisions regarding whether or not to terminate their pregnancies, but instead face the possibility of official opprobrium from the spiritual guides.

The Right-to-life movement is not restricted to the Kenyan church alone, but is shared by the conservative elements of Kenya's other main faith, Islam. The partnership between the two faiths on wide-ranging social issues has been startling, to say the least. They collaborated, in the 1990s, on the programme to oppose the introduction of sex education in all Kenyan educational institutions, insisting that 'family life education' posed a threat to the moral fabric of Kenyan society. More recently, even while they differed over the inclusion of Kadhis' Courts in the Constitution, they were united in rejecting any interpretation of the Constitution that would be seen to widen the scope for the termination of pregnancy. They joined together to denounce the relevant article in the Constitution, alleging that it virtually opened the floodgates. As with the Kenyan Church, Islamic leadership in Kenya is dominated by men. Indeed, all 11 Kadhis in Kenya are men.

The abortion debate mirrors the culture wars of the United States, with faith-based organisations uniting in challenging the US Supreme Court decision in Roe -v- Wade that affirmed that the Constitutional right to privacy also included the right of a woman to decide what could and could not be done to her body. This war has now crossed the Atlantic and is now being waged in Kenya through proxies, including arguably, The Ford Foundation and FIDA Kenya. In the lofty campaign rhetoric between the pro-choicers and the pro-lifers, the voice of the ordinary woman has been drowned. Everyone involved in the debate claims to speak for her, yet they have done precious little to highlight whether or not they truly represent her views.

President Barack Obama of the United States, refusing to be drawn into the culture wars, stated that while he recognised Roe -v- Wade as American law, he would work to ensure that abortion was rare, but when it needed to be performed, this would take place in the safest possible environment, protecting the rights and the life of the mother. This should be the approach in Kenya. Rather than worrying about the possibility of an outbreak of abortion in Kenya as a result of the Constitutional interpretation of the right to life, the government and all the interested parties must work together to reduce the incidences of abortion by addressing the reasons why it may be necessary in the first place. Key among this would be ensuring that young and youthful persons have access to sexual and reproductive health information that will enable them to make responsible choices and ensuring that the social welfare systems in Kenya offer support and protection to mothers and children. Further, in safeguarding and protecting the interests of family as the foundation of society, it is imperative that newly recognised and developed social mores related to the rights of women, girls and mother be affirmed and protected. In the end, if all stakeholders work together, the issue of abortion may not be as divisive as the church in Kenya has led us to believe.