The Constitution of Kenya is a hodgepodge of constitutional principles and styles from across the word: South Africa, India and the United States of America. As a result, though it is lauded as one of the "most progressive constituents in the word", it lacks a certain coherence. Even reading the Preamble, one is struck by the fact that it is incapable of articulating a uniting philosophy. It does not have the We-Are-The-First sensibility of the US's preamble; nor does it ring with the fervour of self-determination in the Preamble to the Constitution of India; nor even the declaration of self-determination in the Constitution of South Africa. The Constitution of Kenya is proof that constitution-writing-by-committee doesn't always work.
What the makers of the Constitution of Kenya borrowed from the United States of America isn't even found in the US Constitution: the securitisation of the public service and the culture wars between the broadly progressive left and hard-line white-supremacist right. Of the most destructive elements of US constitutionalism that Kenya has adopted, are the White Supremacist Christian values such as the definition of family and the black-and-white fight over the right to life. In respect of the right to life, Kenya has adopted the language of live-begins-at-conception favoured by the White Supremacist Christian right wing of US politics. Article 26(4) states that "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".
The US constitution does not expressly mention the right to life or abortion. The Indian constitution protects life but does not mention abortion. South African declares that everyone has the right to life and the right to healthcare, including reproductive healthcare (which has been interpreted by many to include the right to abortion). Kenya is the only one that goes into some detail regarding abortion, in addition to the right to health care under Article 43(1)(a). Kenya's abortion constitutional provisions are a reflection of the religious and cultural wars among US political actors, and the recent annulment of the US Supreme Court decision in Roe v. Wade, decided in 1973, will further entrench the US cultural wars in Kenya's constitutional evolution.
It is moot that the Government of Kenya relies a great deal on development partners to finance public health services. Among those development partners who help finance health services in Kenya is the federal government of the United States. The funds provided by the US government are provided in accordance with laws passed by the US Congress, including a law known as the Hyde Amendment which bars the use of federal funds to pay for abortion, except to save the life of the woman, or if the pregnancy arises from incest or rape. President Joe Biden eliminated the Hyde Amendment in the 2021 US federal government budget, but the recent Supreme Court decision on Roe v. Wade will surely complicate matters as the Republican Party, which is wholly opposed to abortion, is on the legislative ascendancy and Joe Biden's legislative plans are unlikely to survive the coming losses the Democratic Party will experience n the November 2022 mid-term elections.
Though Kenya is not directly impacted by the decision to overturn Roe v. Wade, the effects of that judgment will certainly affect the US federal government (including its financial assistance to overseas partners), and consequently, Kenya must be prepared to weather the cultural war that is surely to follow. But because we seem not to have developed a constitutional language, philosophy or principle regarding individual liberty, it is likely that the debate that will ensue will be just as incoherent as the preamble to our constitution. Ministries of faith (mainly Christian) that are affiliated with like-minded US (mainly Christian) ministries of faith will lead the debate. Government officials will try to square the round peg of US federal government rules in Kenyans' square peg of reproductive health care needs.
I encountered a band of teenage girls, they didn't appear older than sixteen or seventeen, who were discussing "kutoa mimba ya miezi tatu". At first glance, they wouldn't appear as if they knew anything about anything. But taking a moment to reflect, it is clear that the proportion of mostly-young Kenyans facing difficult reproductive healthcare questions is growing. More and more young people are engaging in unprotected sexual relations, the majority of which is experimental, though a growing number is coercive. Many girls are getting pregnant and are faced with extremely limited reproductive healthcare choices, whether due to legal restrictions, or cultural and religious ones. It is reckless to ignore this growing cohort of young people on the basis of religious, cultural and political decisions made in a country so far away like the US.
Kenya's constitutional debates are obsessively about the organisation of the Government rather than the Bill of Rights and the realisation of the principles enshrined in the Bill of Rights. We worry about the sharing of political power among the same cadre of men to the almost total exclusion of the advancement of the rights of the individual to make choices regarding her or his liberty, life and body. As a result, we are led by the nose by an extremist and vocal religious minority in support of racialist white supremacist principles that have proven to be destructive throughout mankind's history.