From: Millie Odhiambo <odhiambomillie@yahoo.co.uk>
Date: Tue, 3 Aug 2010 13:00:52 +0000 (GMT)
Subject:
To: professionals_ke@googlegroups.com
Cc: odhiambomillie@yahoo.co.uk
Dear Peter Waiyaki,
Thanks very much for responding to me. Since it has been a while, I
have had to
re-read my earlier piece to you and I am still very convinced over its
contents. I therefore re-attach it for the information of anyone who may not
have seen it. I will only add a few clarifications. I have put your
comments in
red and mine in black (and occasional green emphasis) for ease of reference.
Again I have taken time to respond to issues you raised now only. You
note that
you had done a very long piece. I hope either myself or someone else will make
time to respond to the other issues before end of Tuesday.
Peter's comments: Thank you for your partial response to my issues. You
responded to 4 out of 10 concerns. You made a promise you did not keep, to
respond to all my issues.
Millie's response: This is what I had indicated in my earlier email: "I am
currently on a campaign trail in the country side and …so I may not participate
actively in all issues raised here ... I am however moved to respond to the
well thought out comments by my learned friend, Peter Waiyaki, and who was also
my Christian Union Chairman when I was in 3rd year in Parklands
Campus, while he
was in Second year. I will try to respond to all issues but if I don't manage
now, I hope I will manage when I get a little bit of a breathing space from the
campaigns." The issue of making a promise and not keeping does not therefore
arise.
Peter's comment: As an aside, I am appalled by the fact that none of those in
this forum supporting the proposed constitution went to any length to the
substance of the issues. I do not believe the issues raised were
frivolous and I
can only assume that there may not have been convenient answers.
Millie's response: Let me assume that you put the word 'none' here accidentally
since I have responded to you, otherwise I would only say the Bible
exalts us in
the book of 1 Peter 5:6 to "Humble ourselves therefore before God so
that in due
season he can lift us up" and also to "Do nothing out of selfish ambition or
vain conceit but in humility consider others better than ourselves."
Philippians
2: 3-4.
Peter's comment: I will respond to your 4 responses: As a preliminary,
I confirm
to all that yes, I was chairman of the CU at Parklands Campus. My Christian
faith and understanding of non-compartmentalization of life and integration of
life and faith continues to inspire my involvement in society, and in
particular
my interaction with law-making. I believe my dual citizenship - of
heaven and of
Kenya - must be brought to bear on all my undertakings and I am
therefore not at
liberty to see constitution-making, or indeed my legal practice, as merely an
earthly undertaking without eternal consequences.
Millie's response: Glory to God and Amen!
Peter's Comment: We are not merely voting in a proposed draft or in
status quo.
It includes inherent in a NO vote a chance to a better law. A YES vote is an
expression of reasonable satisfaction with the draft. Had Kenyans voted in 2005
a YES, we would not be having the proposed new constitution. It is
also improper
to merely compare on the basis of better or worse the current with the proposed
constitutions. If they are both mediocre, which I think the proposed draft is,
what should we do? As it is everybody seems agreed that the Draft needs urgent
amendments!
Millie: Most of us in Yes believe this document is excellent to the extent
humanly possible and NOT mediocre. We nonetheless are willing to amendments to
accommodate our dissenting brothers and sisters. For me, most of the
amendments
relate to form and not substance. Example- 5+2-6= 1; we can also say 2-1=1.
In both cases, we have arrived at 1 using different language. That is our
contention. We are seeking amendments that will let us arrive at the same
philosophy or logic i.e. that we need to preserve the life of the child and the
life of the mother. The YES are not fronting for abortion and neither
is the NO
side. We have not disagreed on substance but form. Why? I believe abortion is
not permitted even in the manner presented. You believe there may be loopholes
permitting abortion on demand. I do not agree with you but in order that we
move forward, I am agreeing we can bring amendments LATER. We attained
"Consensus" in PSC and some members later changed their minds. What
is stopping
them in future from doing the same thing? We tried severally in Parliament to
bring amendments but failed. I believe what we have is good enough to go to
referendum. If it passes, we move on as a country. If it fails, we move on.
Kenya will remain one Country and for me as a Christian, Jesus will remain Lord
under either of the circumstances.
Peter's Comment: The COE and PSC were duty bound to deliver to Kenyans
what they
believed reflected the wishes of Kenyans. There cannot be excuses of who
contributed what. We have seen COE members disown some of the sections of the
draft in various fora. Does COE and PSC believe that they produced the best
draft? Further, it was not evident to all that after Naivasha, COE recieved any
further memoranda so it is a surprise that so much change happened on
key issues
such as Right to Life after Naivasha. When a draft is changed at COE
last stage,
then taken to Parliament where MPs theatrically ensure that no change can occur
inspite of over 150 proposed changes, what is the citizenry supposed to do? I
hope you notice in your quotation of the memorandum you say was from the
Catholic church, the omission of a key word: only. This word would have made a
world of a difference in Article 45 on family. Why was it excluded while at the
same time you allege you took the clause from the memoranda? Incidentally it is
largely the omission/inclusion of a few key words that makes a mess of this
draft (e.g. in Article 27, and 32).
Millie's response: As a matter of fact, the CoE did what it was obligated to do
under the law and it took Kenyans views into consideration and they even have a
booklet that they produced showing those views as the basis of their drafting.
There are issues we as the PSC, advised them to draft wording for and they did
exactly that. For instance, under Article 26, as soon as we came up with "Life
begins at conception and abortion is not permitted" we advised them to come up
with wording that would save the life of the mother in emergencies and they did
just that. We had a further meeting with them in Karen where we
discussed their
final draft. We further had a meeting as the PSC and audited the
draft with the
AG. There was nothing sneaky the CoE did. Most of the amendments were done by
the PSC led by the "Deletion corner" who are now championing NO. This
Constitution recognizes that we can marry under many systems of law including
customary law where a man is allowed to have more than one wife. Inserting
"only" as you suggest, implies that all of us want to be monogamous, which is
not true. Everyone has a choice. Those of the Christian faith can have one
wife and those who are of the Traditional African and Muslim faiths and also
nominal Christians can have more than one wife. The CoE looked at what Kenyans
asked for.
Peter: Millie, You are part of the Church, you were there, was the Church not
represented? Please also be informed that on quite a few of the issues, I
personally talked to the CE of the COE, I sent in a marked draft and I
also sent
in an Article on Kadhi's court to the COE. I think I did quite a bit, and many
other "Church" people did a lot more. We have not been indolent, and surely for
a national constitution, it cannot be the first past the line, can it?
Millie's response: Yes Peter, I am part of the Church and I believe I and
several others, very ably represented the Church. There were members who were
of the view that we do not need to acknowledge God in our Constitution as they
preferred "Secular" Constitution. Read the Hansard. I and others said, "We
need God in our Constitution" and we need God in our institutions. Why I think
we are all behaving like "Jonnie come lately", If we as the Church had
differing
opinions on issues, we should have consulted and agreed amongst ourselves. We
did not. I was not in CoE so I cannot vouch for what you gave them and we did
not rely on them because we did not have them at the PSC. I have
copies of what
was presented to us at the PSC by the Church and they do not contain most of
what is in now in the public domain. I can assure you the Catholic Church was
persistent on the issue of abortion. That I will vouch for them. They wanted
us to introduce "life begins at conception and there is no abortion" and we
did. The borne of contention is the limitation clause. I am comfortable with
the product, you are not. The first time I was called for a TV interview after
the Constitution passed in Parliament, I was up against a doctor from the
Church. I was not happy opposing him because of my Christian background and
upbringing. I thought it was wrong to go against the Church. Guess what? I
prayed immediately after that show and asked God to forgive me if I had done
anything wrong. I thereafter did my normal and pre-scheduled Quite-Time Bible
reading. My reading for that day was: "It is okay to disagree with the Church,
just love them anyway."I love you Peter with God's love, I love the Church, I
just respectfully disagree with you on this issue. I am at peace with God and
with what I am doing Peter. The Bible says where there is disagreement over an
issue between brethren, it is the ballot that sorts it out. I think
this is one
such instance.
On the specific responses:
Peter's commment: 1. Clause 2(5) - You know that there is no unanimity on the
general rules of international law. Using your words, you say that there is
"near unanimity". We are including as the law of Kenya something in respect of
which there is "near unanimity". Surely we cannot be that reckless. Even where
they may be agreed, not all are suitable, are they?
Millie's response: Sorry perhaps I was not as clear. One of my specialties in
theory and practice is International Human Rights Law. I re-attach my earlier
response and respond further as follows: What I meant is that for a law to
crystallize to a General Principle of International Law, it must have
passed the
test of acceptance by many countries. That is what I meant by saying
that there
should be near unanimity by almost all Countries of the world for a law to be
considered as a General Principle of International Law. Reaching that level is
hard and hence, there are very few general rules of international law such as
prohibition against torture and disappearances. I am sure as a country we
would like to adopt a principle that outlaws torture and outlaws the
inexplicable disappearance of people. Abortion, Gay and Lesbian Rights are not
remotely anywhere near being General Principles of International Law now or
anywhere in the near future as getting this unanimity or near
unanimity is close
to impossible. I also said if they were to be, Kenya, as a persistent
objector,
cannot be part of it. Kenya has already excluded itself by being a persistent
objector. Your arguments are actually supportive of my conclusion. Where there
is no unanimity, there is no General Rule of International Law so there is
nothing for Kenya to be bound to.
Peter: Clause 2(6) - as you admit, Parliament is not involved in the process.
This now involves the executive in making laws for Kenya (exclusive of
parliament), yet a strength of the draft is supposed to be how well the
separation of powers has been achieved. Ratification has nothing to do with the
people, but everything to do with the executive arm. Yet under Article 1, the
people of Kenya are entitled to exercise their sovereignty through
their elected
representatives. Surely if the mischief you wanted to beat was parliament being
dilatory, all you needed to do was to say that Parliament must approve within a
certain period. The real intention here was clearly is to ensure express
application of such treaties as the wording is, without nosy parliamentatians
being involved. Sadly, this will include conventions which the Kenyan
parliament
has already found inappropriate e.g. the one on anti-terrorism. Kenyans are
simply opening up its legislation process to unelected officials and
well-heeled
lobbyists. Treaties that otherwise would not find parliamentary
approval are on
the way no doubt.
Millie's response: First, let us also agree what we clearly want. In some
instances the NO team do not want Article 26 because of "Any other written Law"
because we don't trust our parliamentarians. Now here, they are the only ones
we trust with our treaties. We can't have our cake and eat it. Nonetheless,
whichever organ is involved in treaty-making is bound by Article 20 (1) "The
Bill of Rights applies to all law and binds all State organs and all persons".
The Bill of Rights outlaws abortion and Gay and Lesbian marriages. This
proposed Constitution also allows for limitations by other written law. We
already have laws such as the Penal Code that deal with these issues. Read it
also with my earlier comments on limitations.
Peter's comment: You state broadly that none of the ratified treaties can be
harmful. You quote specifically the one on non-discrimination on Women (CEDAW).
Perhaps you do not know but this treaty has as recent as 2006 been interpreted
in Colombia to allow abortion by virtue of article 12 which is on family
planning. This is harmful to Kenya. We also do not know what other
treaties will
come in. What is the necessity of by-passing our elected representatives.
On this ground alone, this draft is bad for our sovereignty, our legislation,
our children and our country.
Millie's response: I actually cited several Conventions including CEDAW, CAT,
ICCPR, ICESCR, CRC and I can also add African Charter on Human and People's
Rights; African Charter on the Rights of the Child; Convention on Biodiversity;
amongst others. I can tell you that I have followed keenly, the development of
International Human Rights Law for a time. There have been attempts to include
language or wording that includes rights you are not comfortable with but most
African countries have always resisted this. There is no Convention
that refers
to the issues of worry or of concern to us as Kenyans. It is good to be
vigilante but let us be modest. Let us not cause unnecessary panic and alarm.
Why is Columbia interpreting "family planning" broadly? Because that article 12
you mention, does not allow it. Colombia as the conservative country
it is, may
see abortion in anything and we have no control on how it interprets
international treaty. Their legal interpretation of a treaty has no
legal value
to Kenyan jurisprudence as their interpretation can only be merely
persuasive to
a liberal judge and not binding. I have even heard NO people interpreting the
proposed Constitution as including Gay and Lesbian rights through the use of
"Non-discrimination on the basis of sex". This is the first time I am hearing
such an argument which anyway also implies that the current Constitution then
allows for Gay and Lesbian rights since it outlaws discrimination on the basis
of sex through the 1997 IPPG Amendments. We have no wording in the draft that
alludes to that. I guess they are confusing it with "Sexual Orientation". In
short- we can't stop people interpreting things the way they want but
when we go
to a Court of law, we shall be guided by principles of interpretation which
includes (1) Plain meaning (2) Legislative history. In Kenya's Legislative
history, it is clear abortion is not permitted and gay and lesbian rights are
not permitted. We can also, under Cap 2 of the Laws of Kenya, define any
terminology we are not comfortable with. Please also read the more "legally"
acceptable interpretation of this article and you will note that they are
careful not to use the word abortion and only merely advice countries to use
their conscience in developing such laws and to ensure women are protected.
Peter's Comment: 2. Citizenship: I sympathize with Kenyan women who
have married
foreigners. They must be allowed to confer citizenship on their children
automatically, and their foreign husbands after a decent period of marriage. In
other countries though, there is requirement at least for residence and not
merely marriage. There must be limitation on whether somebody even knows where
Kenya is on the world map before citizenship by birth is conferred;
there should
at least be an expressed interest in such citizenship before we force it on
people who may have no need or wish for it, yet consider them part of citizens
by birth.
Millie's Response: I agree with you fully and that is why Article 15 (1)
provides that "A person who has been married to a citizen for a period of at
least seven years is entitled on application to be registered as a citizen". We
are not unleashing citizenship on unsuspecting husbands of Kenyan women like my
poor husband. If he is interested, he must have been married to me for seven
years, he must apply for it (this indicates interest) and over and above that,
Parliament must approve under article 18. How hard can it get?
Peter's comment: I am glad you appreciate that indeed Botswana is flooded. You
are also probably aware of the devastating impact HIV has had on those smaller
south african countries. You are also aware that those are countries which do
not have as porous borders as Kenya does (talking of the whole citizenship
clause).
Millie's response: I agree with you having visited most of those countries. My
point is- its Kenyans who are busy flooding other countries so let us stop this
unnecessary phobia that is not reciprocated with equal measure. I even found
Kenyans in some small islands called Turks and Caicos in the Caribbean, that
most of us have never even heard of. Yes we have porous borders- Hon Otieno
Kajwang together with Hon. Saitoti needs to deal with that- not the
Constitution. Yes we have insecurity, same applies. I liked a comment by some
participant in a Meru Constitutional Forum: "Kwani wa Somali watarusha watoto
Kenya kama mawe hii katiba ikipita?" We have genuine concerns but we are
addressing them the wrong way. No one is going to throw children into Kenya
like stones. Nonetheless if we are apprehensive, over to Hon Kajwang and Hon.
Saitoti.
Peter's Comment : Thank you for the compliment but surely the constitution
cannot be passed based on the expectation that one bright lawyer will volunteer
a Citizenship Bill. Please note that parliament does not have to pass such
limitations under 14(3), and you have not said how it would not be
discriminatory anyway.
Millie's Response: Indeed we are passing the Constitution on the strength of
the Transitional Clauses as well and see Schedule 5 on laws and so if the Lord
has blessed us with a brilliant lawyer like you, it's a bonus as we shall then
finalize quickly and without mediocrity. I would urge that you read the
legislative history (as a lawyer). Most of us felt that we do not want to over
restrict acquisition of citizenship to persons whose parents are Kenyans but
because there may be instances where it may be necessary, then parliament may
pass such a law. It is not discriminatory because the same proposed
Constitution provides so and we can only challenge it using a law higher than
the Constitution which we do not have now. Where we thought the concern was
greater, e.g. presumption of citizenship by children found in Kenya, we
obligated parliament under article 18 and transitional clause to pass the
legislation by using the word "Shall". Please also note that in passing the
Citizenship Bill under 18, you will necessarily include 14 (3) and
that is where
your brilliance will help.
Peter's comment: On the children under 8 issue: your explanation falls far
short. You know that article 53 requires every child be registered and
conferred
with nationality. Article 14(4) is open and for all time. For the few children
(even if they would be 100,000) who are under 8 and parents and nationality
unknown, we are prepared to open up our country to all and sundry. For
a country
with several refugee camps, we can surely do this? It would appear to me that
the drafters of this clause which you are so passionate about probably do not
appreciate the realities of Kenya. Surely we can require every child born in
Kenya to be registered in accordance with Article 53, and so anybody not so
registered can safely be deemed not to have been born in Kenya. We have a chief
and a councillor in every part of Kenya. This is by far perhaps the most
dangerous clause of the whole document, whatever the innocent intentions may
have been.
Millie's response: I am generally a passionate person over things I believe in
so, thanks for the compliments. My explanation is sound especially in light of
what you have indicated under article 53. I plead with you to talk to Sister
Mary of Nyumbani Children's home so she can explain to you the realities of
these children despite there being laws even now that requires such
registration. That is why we have gone for a presumption which is rebuttable
under article 17. The Bible, says "suffer these little ones to come unto me…"
My gosh Peter, they are children! What happened to Christian love?
Let us deal
with our porous border but let us love children of all races, nationalities and
ethnic groups. If Jesus lived now, I wonder if he would have said let us keep
these Somali children off our borders because…. ? (Prejudices, Peter,
prejudices…) They played out dangerously in 2007 in an ethnic form. They are
emerging in religious undertones. Many wars have been fought and people killed
in the name of the Lord. Let us remember, "For the weapons of our warfare are
not carnal but they are mighty to the pulling down of strongholds".
Peter's comment: We seem to have mimicked America in making our nation a nation
of immigrants, without regard to our level of development and resources and
population. Clearly we have opened up citizenship to the erich foreignors who
need only be in Kenya for 7 years legitimately (work permits, passes,
consultancies, ambassadorial positions) to come and lord it over us. Bear in
mind that Kenyans go out to say US generally as the lowest of workers,
while the
westerners come here as the highest of white color.
The draft fails flat on this issue. Kenya cannot afford to be a nation of
immigrants.
Millie's response: This should be addressed through executive action as I have
suggested above but having travelled widely, Kenya should first bring
its people
back before seeking to throw others out. Elsewhere you have alluded to Obama's
alleged citizenship especially with the passage of this Constitution. He is
currently the President of the USA even though the father is Kenyan.
Recently a
Kenyan was elected to a Local seat in the UK, another in Canada and I have met
several Kenyan judges in USA and other parts of the world. Let us not throw
stones when we live in glass houses but cautiously work out how we can
deal with
this growing concern.
Peter's Comment: 3. I take it that you concede that amendments are not possible
until at least 2012, since we need a senate and counties for them or for any
referendum. So the President, the Prime Minister and others are not entirely
truthful when they say that we will amend any problematic issues immediately?
All the pamplets by the YES campaigns that promise this are not
truthful? So you
are saying that if in fact abortion is allowed, we cannot correct this and we
can live with it for 2.5 years, if there is injustice in how the judiciary is
structured we can live with it for 2.5 years, we can have floods of children
under 8 for at least 2.5 years, we can forego express freedom to
propogate faith
for 2.5 years, Religious institution will be forced to employ people who do not
share their faith for at least 2.5 years, children can lord it over their
parents for 2.5 years at least, we can stand pornography in the name
of artistic
creativity for at least 2.5 years, all the trouble with the land
chapter must be
suffered for 2.5 years; and even after that a process that is akin to the laws
of the Medes and Persians must be followed. Woe unto Kenya! What would have
happened if the post election violence had to wait for 2.5 years to be resolved
because a constitutional amendment was not possible?
Millie: Given that I do not share your views about the alleged flaws, all I can
say is there is no need to wait for 2.5 years for any substantive
amendments but
merely amendments in form. Nonetheless even if you deemed them substantive as
you do, amending the Constitution is not the only way to go. A lot of the
articles you refer to talk of legislation or Acts of Parliament as provided for
under the Transitional clause. Through these Acts of Parliament, we
can clarify
issues opponents think are not clear to them (which are clear to me and to the
Yes people). Nobody is being untruthful but merely giving their different
points of views, otherwise I would also say you are also not being truthful by
the assertions you are making here since I do not agree with them. I
nonetheless choose to see them as a different view points and I can only try to
persuade you and would only hope that you too would try to persuade us
to buy in
to your view point. So far, I am not persuaded.
Peter: Why is it anyway that the Church is always being told it can raise 1m
signatures while Parliament only needs to raise 150 MPs to make changes to the
law to accommodate consunsus.
Because it is also presumed that the Church apparently has better persuasive
power over its congregants. MPs already tried to get the 150 and failed to
agree.
Peter's comment: 4. Abortion and taking of life: Articles 26(3) and
(4) envisage
taking of life, where permitted by written law. I have already referred to
written law (treaties) which already permits the taking of life of innocent
children. All the exceptions in 26(4) point to no safety for the unborn. The
recent draft Reproductive Health Bill gives a very clear indication of the
direction of this matter. We are not safe from euthanasia, killing of the
infirm, the old, suicide pacts, or any other such vices. If you seriously
believe that this is a "pro-life" draft, I would hate to see what a pro-death
one looks like. I can only say I hope that the drafters of this law know that
polls consistently indicate Kenyans do not want legalized abortion. Yet all the
exceptions in 26(4) are legalized abortion. And God hates people who are swift
to shed innocent blood.
Millie's Response: Please forward to me this famous or infamous Reproductive
Health Bill that has never appeared in parliament but is often used as an
example of abortion. There may be a draft out there somewhere but the Kenyan
Parliament which is very pro-life has not seen it and it will not pass
if it has
abortion on demand. By the way, let us also disabuse ourselves of the notion
that any Reproductive Health Bill must be something to do with abortion. I
would love us to have a Reproductive Health Bill to deal with all the
Reproductive challenges not related to abortion, that women and young
girls face
daily. A pro death constitution would have the issues you imagine are in this
one which are not in it such as euthanasia.
Looking at all the issues, one must ask, what is it that like a moth
to a light,
is drawing Kenyans to pass a draft constitution with such obvious
flaws, in such
a mad rush?
May God, whom we claim to acknowledgein the Preamble of the draft, but whose
dictates we systematically edge out in the body of it, save our Nation.
After all the sectarian interests are considered, may yet there be people who
truly love Kenya and who will reject this draft for the sake of Kenya.
NOis the best answer to this draft.
Peter Waiyaki
Millie's response :
I hereby attach a sermon by Pastor Oscar Muriu of The Nairobi Chapel of 25th of
July 2010. I identify with him. He has spoken so simply to the issues that I
am struggling to put in lawyerly terms and sometimes not making sense. For
those who do not get the attachment, look it up on
www.nairobichapel.org/sermons/sermons.esp
In brief he encourages the congregation to follow certain steps towards the
referendum which includes (1) Reading (2) listening to others especially with
opposing views (3) prayerfully making and informed decision. What speaks to me
is what I have been grappling with and I will summarize what he concludes with
as follows:
1. We can never get 100% consensus. Having been in BOMAS and now having
been in the PSC, this to me is the closest we have come to an agreement. In
Parliament, the AYES had it. I hardly heard any NAY. The Nays are coming
outside parliament. I will not impute any improper motive as they alone know
the reason for this change of mind.
2. Christianity is a gospel of good news to the poor, afflicted,
down-trodden etc. The Bible is replete with verses that encourage us
to protect
the widows, the orphans, the foreigners and the poor. Pastor Oscar
quotes Psalms
82: 3 "Give justice to the weak and the fatherless; maintain the right of the
afflicted and destitute; rescue the weak and the needy; …" I like what he says
which is a departure from what you and I have been saying. For you, this is
mediocre so throw it out. For me it is good accept it. For him, it provides a
dilemma. It has very good provisions on justice, protecting the
foreigners, the
poor, the weak, the orphans etc. We have sought to protect them for 20 years
and failed and it is scriptural that we do so. Then he says the Church has
rightful concerns (According to him, that mischief might come into play in the
limitation clauses especially on abortion) and also on how we handle
the Kadhi's
Court in future. For him it is a choice between (1) the good and (2) the good
which has room for correction. He urges us to vote with our conscience as he
does with his. According to him therefore, it is not a foundational challenge
but dealing with fixtures and fittings in future.
3. He urges to think back to why we needed a new Constitution as a Country.
4. He notes that the real battle is after 4th when the Constitution either
passes or fails.
I have listened to you and to others including Pastor Oscar and other
professionals and my conclusion as Millie is that:
1) This is a very pro-life Constitution.
2.) Christianity is a very pro-choice religion that is why most Christians
choose life. In I Kings 19:20, Ahab sent to all the people of Israel, and
gathered the prophets together at Mount Carmel. And Elijah came near to the
people and said, : "How long will you waiver between two opinions; if
Jehovah be
God then serve him and if Baal be God then serve him". Joshua, before his
demise, informed the Israelites under Joshua 24 of the good the Lord
had done to
them and the journey they had traversed and challenges they had faced for all
those years. He then tells them: " Now therefore, fear the Lord and serve him
in sincerity and in faithfulness; put away the gods which your fathers served
beyond the River, and in Egypt, and serve the Lord. And if you be
unwilling to
serve the Lord, choose today whom you shall serve whether the gods whom your
fathers served in the region beyond the River, or the gods of the Amorites in
whose land you dwell; but as for me and my house, we will serve the Lord."
We have traversed the wilderness as a country and God has given us a chance to
choose. I choose life, I choose justice, I choose prosperity, I choose love, I
choose peace. In all these though, may the Lord's will reign supreme.
As for me Millie and my house, we will serve the Lord and will vote Yes with a
clear conscience before man and God".
Hon Millie Odhiambo-Mabona
Advocate
Dear all,
I have read the various comments and thank those in this forum for a very
vibrant debate on the Proposed Constitution. Let us remember whatever side you
vote, lets remain peaceful and respectful of one another.
I am currently on a campaign trail in the country side and only come in for a
day or two on days we are in session in Parliament so I may not participate
actively in all issues raised here because of the schedules. I am
however moved
to respond to the well thought out comments by my learned friend,
Peter Waiyaki,
and who was also my Christian Union Chairman when I was in 3rd year in
Parklands
Campus, while he was in Second year. I will try to respond to all
issues but if
I don't manage now, I hope I will manage when I get a little bit of a breathing
space from the campaigns.
My preliminary remarks:
a) We have the current Constitution and the Proposed Constitution. If you
vote "yes", you are voting for a new Constitutional dispensation. If you vote
"no", you are in effect telling us the Current Constitution is better than the
proposed Constitution. I will not therefore focus my debate on other drafts.
They may have been better or worse, but we are not voting them in or out.
b) I benefited from discussions at the PSC in Naivasha and in Parliament.
It is understandable that some of us are apprehensive, especially
those that are
Evangelical Christians when they see variations from BOMAS and other earlier
drafts. There is often a presumption that these clauses were "sneaked" in by
the CoE and sometimes by "Muslims". Indeed this is not correct. Both the PSC
and the CoE did amendments and we consulted at each stage and there was no
sneaking in. A lot of amendments were informed by memoranda that we received
from various sectors including the Church and CSOs. Unfortunately I
do not have
a scanner at home, otherwise I would have scanned and attached the Memos for
information. Information is power. There were days we were
deadlocked for more
than 36 hours (I remember clearly the contentious issues were (a)
representation
on "one man one vote" and (b)"Devolution" and not the issues appearing now. It
would be important to know that:
· A lot of amendments were done by the PSC in Naivasha by those who are
in "No" and "Yes". Some amendments were expressly by those in the "No".
· We were persuaded to have a lean document, hence the deletion of most
of the wordings, a lot of which were repetitive or in our view, could
be covered
by Acts of Parliament, especially because the PSC was very "lawyers-heavy" with
Orengo, Mungatana, Martha, Wetangula, Ababu, Abdikadir, Kilonzo, Munya,
Wetangula and myself. ( I hope I have not forgotten any one).
· We wanted to include as many Kenyans as we could, so we took
the views
of many who made presentations to us by way of memorandum and other means as I
have indicated. I personally was uncomfortable with the inclusion of "Life
begins at Conception" because it is problematic for me as a Christian
(Life does
not begin at conception) and as a Lawyer, (I made arguments on this in my 3rd
year Law school dissertation). I will quote the preamble of the
Memorandum dated
January 21st 2010, submitted by the Kenya Episcopal Conference, Catholic
Secretariat and signed by Rt. Reverend Philip, Bishop of Kakamega/Vice
Chairman,
Kenya Episcopal Conference and 23 other eminent persons' names appended- "
Before I formed you in the womb I knew you; before you came to birth I
consecrated you..Jeremiah 1: 4-5". Despite this, we agreed to live with "life
begins at conception in order to accommodate the Church".
· We accepted several direct amendments from the Church and some of it
is now a cause of concern for the Church. I will quote an example from a
Memorandum from the Catholic Justice and Peace Commission dated 15th January
2010 on Family: "Family; we hold to our opinion that every adult may only marry
a person of the opposite sex and from this the family would be founded." This
provision is now alleged to introduce gay and lesbian unions!
· There are also others who were unhappy with our amendments but were
not successful in getting their way. The Kenya Obstetrical and Gynecological
Society in an undated memo wanted sub clauses 2 and 4 of 26 deleted. The
Reproductive Health Alliance, Kenya, via a memo dated February 12th
2010, wanted
the same amendments and wanted any reference to the word "abortion" removed.
These are groups that are generally perceived as "pro-choice".
· From the memorandum I have, the Church was consistent on article 26.
I do not seem to see all other issues emerging now from most of the memorandum.
· In future though, I wish the Church would be more proactive. In law
there is a Maxim along these lines that equity assists the diligent and not
indolent. Even though I do not think the issues you raise are fatal, pray thee
Peter, why did you not raise them at the appropriate time?
Having made those preliminary remarks, I wish to now respond to specific issues
by Peter Waiyaki as follows:
The PCK clearly allows the application of international law in Kenya
without the
necessary legislative oversight by the Parliament. This is effectively
legislation by the executive. This will amount to a rule by decree, in a
situation where the executive will not be elected except for the President and
the Deputy President. It has been said by activists that Parliament takes too
long to domesticate treaties. Therefore let nobody say that Parliament is
empowered to oversee treaties - it was never intended by the drafters or else
they would not have removed the clear provision in the draft in February 2010.
Is that what we want in Kenya. If so, vote green.
Countries that value their sovereignty and believe the People must be
represented by legislators, always ensure the people's representatives consent
to ratification, or domesticate international conventions. Not so Kenya under
PCK. We want to be ahead of everybody else. Does anybody out there know the
totality and implication of all the treaties ratified to date by the executive
which will become law under the constitution if it passes? Does anybody care?
My Response:
Article 2 (5) The general rules of international law shall form part of the law
of Kenya
Article 2 (6) Any treaty or Convention ratified by Kenya shall form part of the
law of Kenya under this Constitution.
· "General rules" are rules that have been developed by the
international community over time, there is a near unanimity of agreement by
States on it and is not necessarily written down and the whole world
agrees that
no country should derogate from them under any circumstances. These
are few and
include things like prohibition of slavery, prohibition of torture and
unexplained disappearance of persons. I am sure Kenya has no problem
subscribing to such rules unless we want to torture people, have people
disappear mysteriously or get people back to slavery. It takes long for other
such rules to develop as getting unanimity is hard to develop. A country can
refuse to be part of such general rules by being a "persistent
objector". Kenya
is a persistent objector to "abortion" and "gay and lesbian rights". Even
though these are not part of general rule of international law, should they
start crystallizing as such, Kenya cannot be bound as a persistent objector.
· 2 (6) I would be worried if we made provisions without stating
"ratified". "Ratified by Kenya" means there is a deliberative act by
Kenya. We
voluntarily go to New York or Geneva and sign and thereafter ratify by
depositing documents of ratification after going through an Executive process
with the Church and other Civil Society Organizations watching keenly. I have
been part of this process and believe you me, it is hard to ratify something
without the watchful eyes of especially these two categories. We are not
helpless lambs to the slaughter. While ratifying, we have the choice to put
reservations to articles we do not like, like we did with the Convention on the
Elimination of All Forms of Discrimination against Women. We can also fail to
ratify all together like we did with the Maputo Protocol on Women's Rights.
However, for avoidance of doubt, and to enable us be more proactive, there is
nothing stopping us from coming up with a Ratification Act and I already have a
draft that obligates us to pass through parliament.
· Do we know which treaties Kenya has ratified? Yes we do. Let us not
alarm others through mystery. There is none with any negative connotation on
issues of concern to us. I will give examples but hope that I will have time
enough to attach the full list which should be available with the
Kenya National
Commission on Human Rights. These include: (1) Convention on the Rights of the
Child; (2) Convention against Torture; (3) Convention on the Elimination of All
Forms of Discrimination Against Women; (4) International Covenant on Civil and
Political Rights; (5) International Covenant on Economic Social and Cultural
Rights, (just to name a few). They have no gay and lesbian rights or right to
abortion.
· In relation to this, I am satisfied and will vote yes.
2. The PCK opens up the citizenship of Kenya, by birth, to every person who was
ever born of a Kenyan parent. This means that any person who has had a Kenyan
parent will be a citizen of Kenya whether he wants it or not. This may please
some people because somebody like Obama, his wife and children will become
citizens of Kenya by birth. But what are the implications? We will have a
population that nobody knows. Who knows how many people in the universe have a
Kenyan parent, where they are, what they do, etc. How can a government even
start planning for such people who cannot even be counted. You do not have to
believe me: just check Article 14(1) and (2), even though Parliament may limit
the effect of the clauses. What if they do not and on what basis would they
without being discriminative? If you do not care about that, Vote with the
General. I will on touch on 14(4) in case I am called a conspiracy theorist.
My response:
· This Constitution was proposed to deal with issues of concern to all
Kenyans including those who have married out of the country, like myself.
Fortunately, or unfortunately (depending on where you stand), I have no child.
I know my friends who are Kenyans, including my learned friend and former
classmate, Koki Muli, formerly of IED, who have gone through nightmares trying
to get their children into Kenya. Under the current law, even though she is a
Kamba and lives in Nairobi, her children can only be given a visitor's pass for
six months because a woman cannot confer citizenship upon her child if
born of a
foreign father, out of the country. This has been a common problem in
Commonwealth Africa that inherited this discriminatory law from Britain and
there are countries that have dealt with them and have not been flooded with
these unknown persons you allude to. In the famous case of Unity Dow vs
Attorney General of Botswana, Unity successfully challenged this provision and
her country's Constitution was amended to allow for a similar provision.
Botswana does much better than Kenya despite this (in terms of development) and
indeed its Kenyans with Kenyan passports, without such a law, who have flooded
Botwana and not unknown children of Botswanian women who flooded Botswana after
the amendment. During the last referendum, the Church was opposed to a similar
provision. Perhaps this is what still informs your view. There is nothing
wrong with it as there are many examples in the Bible of children who were not
born in their home turfs but were still regarded as part of that turf and still
went back to their original homes. This includes our Lord Jesus
Christ and many
others. It is scriptural and legally sound.
· Secondly you have clearly said Parliament may make legislation to
limit its application but you fear it may not. That will be unconstitutional
under the Fifth Schedule of the Transitional Clauses where Parliament is
obligated to do so within one year. As the brilliant lawyer I know you are, I
urge you to please prepare a draft for the same so that we obligate parliament
within the Constitutionally provided time.
· You do not want to comment on 14 (4) but I will. I have
worked in the
children sector for a long time as an advocate for children. Before I joined
parliament, I also served in Nairobi Pentecostal Children Center in
the Advisory
Board. The children we need to presume as Kenyans here are the ones like the
ones my church took in and who, we in the children sector, know very clearly
from a variety of facts (accent, appearance, language spoken) that they are
Kenyan but are either lost or were abandoned, especially those in Nyumbani
Children's Home. I hear Sister Mary's presentation many times on this
issue and
though often the same, is very depressing every time as though I just heard it
the first time. I wish you had an opportunity to listen to her. Many children
are born in this country, are never given birth certificates and die without
death certificates, despite the efforts of their guardians. What is the
implication, they do not find it easy to access the basic services
that your and
my children do, like education and medical services because they are only for
"Kenyans". Even though we know these children as Kamau, Atieno, Makau,
Chepngetich or by any other local name, they never existed in Kenyan records.
If you go to the Hansard in Parliament, Hon. William Ruto clarified to members
using the same logic as I do now. I feel sad when we theorize with children's
issues. I wish you could use other sections to encourage us to vote No.
3. The often promised amendments of the contentious issues can never be
delivered by President Kibaki - they need a referendum most of them - a
referendum or amendment to the constitution needs counties and these will only
come after 2012. Is it dishonesty to say things can change soon after knowing
they cannot. Can we truly afford referenda to deal with "small matters" we are
unwilling or unable to deal with now? If you do not care about
honesty/dishonesty, vote Yes.
· If I knew what counted as contentious to you, I would address this.
This is because if you look at Chapter 16 on Amendments, there are different
ways of bringing amendments including by Parliamentary Initiative and
by Popular
initiative and amendments vary depending on the issue you are dealing with.
Right now, all I can say is that on the whole for me, this draft is way much
better version than what we have now. It took us over 40 years to effect major
amendments. I am happy if we make major strides and took only two years (2012)
to effect what is conceived as contentious. Furthermore, people did not want
too much power in the hand of the Executive for amendments that was abused in
the past. That is why it has been given to the people. It may be hard but NOT
impossible.
· The part that is harder to amend is on issues such as the Bill of
Rights, territory of Kenya, national values and principles etc, however, this
should be relatively easier for the Church with millions of followers.
· On issues of honesty or dishonesty, may God have mercy on us as God
alone knows who is dishonest or not. May be I am, may be you are. May be our
leaders saying "No" are may be the "Yes" are. But I know for a fact, I was in
Naivasha and I heard what people said, and like you, I care for honesty.
4. We can use words the way we wish but words have meanings which we
cannot wish
away. The real truth is Article 26 of the PCK permits the introduction of all
sorts of reasons for taking life, under sub-clause 3, euthanasia,
suicide pacts,
infanticide, capital punishment for any offence can all be permitted. As for
right to life for the unborn we refuse the real meaning of sub-clause 4 to
deceive ourselves. Again, if one does not care for assured preservation and
maximum respect of life, one should just vote Yes.
· Under sub clause 3, parliament shall make laws to that effect. While
making that law, they will be guided by article 24 on Limitation of rights and
fundamental freedoms that provides in 24 (2) (e) as follows:
"Despite clause (1), a provision in legislation limiting a right or fundamental
freedom – shall not limit the right or fundamental freedom so far as
to derogate
from its core or essential content." What is the essential content?
Heading of
26: Everyone has a right to life. Parliament cannot therefore make laws that
introduce all manner of things as you suggest. This also applies to sub clause
4.
· On sub-clause (4), I am sure I am not deceiving myself because it
starts with the words "Abortion is not permitted" and then gives
exceptions when
it is permitted. I am sure I do not want to see a woman die because of
pregnancy-related complications or other life-threatening complications because
that could even include me. If I were to be in a situation like that, I do not
want theories, I do not want you to read the Constitution, please just save my
life then we can theorize after that. If your wife were to be in this
situation, I pray that you would do the same.
· If I were to use your argument elsewhere, that what is not provided
for expressly in law is permitted, that means therefore that abortion,
according
to you, is permitted under the Current Constitution. Which is better
therefore-
one which is silent and which then, according to your argument, may mean it is
permitted, or one which expressly outlaws abortion and then gives grounds under
which it may be permitted and which grounds are an improvement on the current
permissible grounds under the Penal Code (which you and I as lawyers know is
part of the laws of Kenya and therefore applicable, contrary to some
insinuations I have read here). I will now proceed and give the current
permissible grounds:
· Section 214. " A child becomes a person capable of being killed when
it has completely proceeded in a living state from the body of its mother,
whether it has breathed or not, or whether it has an independent circulation or
not and weather the naval-string is severed or not." This means the Proposed
Constitution provides a higher standard by stating that life begins at
Conception not at birth.
· Section 240. "A person (not a trained health professional as per the
proposed Constitution) is not criminally responsible for performing in good
faith and with reasonable care and skill a surgical operation upon any person
for his benefit, or upon an unborn child for the preservation of the mother's
life, if the performance of the operation is reasonable, having regard for the
patient's state (what is a patient's state?) at the time and to all the
circumstances of the case." Clearly, the proposed Constitution has higher
standards.
· I know of only four countries in the whole world that provide strict
standards on abortion as Kenya is in the Proposed Constitution- Malta,
Chile, El
Salvador and the Vatican.
· I attended the Commission on the Status of Women's Meeting
which is an
annual worldwide meeting setting standards on women's rights. Many sessions
were held where many so called "pro-choice" groups castigated Kenya for
developing a very "pro-life" Constitution. I have worked in this sector for
years, take it from me, this draft, is very "pro-life".
Its late and I leave at 4 am for a rally 800 kilometers away. I hope when I
get a breather next week, I will take up from Peter's No. 5 on land.
Thanks Peter for urging us to vote with the General if we are not convinced by
you. I will vote with the General, informed by my understanding of the law and
my Conscience, which is clear before God and man on this.
God bless Kenya. Peace, Mercy and Grace to us.
Hon Millie Odhiambo-Mabona
Advocate
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