haiyaa wrote:The competition is very stiff.Yes men /women need to up their act if they are to win.
Go to the grassroots.Funny the 'NO' are just saying 'NO' while the Yes are giving reasons.Is it that people just dont want the constitution for the sake or they have not understood the Draft?
@haiyaa
I vote NO because of the following troublesome aspects as explained by one Charles Kanjama:
1. Art 26 – Right to life.
• Art 26(3) “except to the extent authorised... or other written law.” This is problematic because it allows an Act of Parliament to derogate from the general constitutional right to life.
• Art 26(4) – The whole clause is problematic because it authorises abortion, because it talks of the individual unverified opinion of a health professional, because of the health of the mother exception and because it allows any other written law to derogate from the constitution.
2. Art 27 – Equality and freedom from discrimination.
• Art 27(4) introduces new prohibited grounds of discrimination i.e. pregnancy, marital status, health status, age, disability, religion, conscience, belief, culture, dress and language.
• Art 27(5) introduces an even larger expansion of rights against discrimination by extending the corresponding duty from the State and public persons to all other persons! Finally art 27(8) requires the State to take measures to ensure that all elective and appointive bodies have at least one third of members from each gender. It is not defined whether “bodies” means state, public or all bodies including private entities. The implications are astounding:
a. Some of the new prohibited grounds will introduce into our jurisdiction several of the problems being confronted by persons in some Western countries. E.g. churches and religious institutions having problems denying non-adherents certain services, schools being forced to integrate boys and girls, persons having a constitutional right to wear whatever they want and even to walk around in a state of undress in institutions, etc.
b. The extension of the duty against discrimination to private persons will cause untold mischief. I don’t think I need to spell out the various scenarios. Think about the ground “age” for instance.
c. Also sub-clause 8 has potential minefields if the courts were to later interpret bodies (as per their mandate for expansive interpretation of the bill of rights) to include private bodies e.g. private schools, churches, etc. It is not a far-fetched possibility.
3. Art 29 – Freedom and security of the person.
• Art 29(d) prohibits torture in any manner, where physical or psychological.
• Art 29(e) prohibits corporal punishment. The concern is with psychological torture and corporal punishment, which basically means that parents will find it difficult to punish their children without potentially contravening the Constitution. Mainly because the clause is worded in too generic a form. The State will eventually become more intrusive into family life through some form of Child Protection Services.
4. Art 30 – Slavery, servitude and forced labour.
• Art 30(2) prohibits forced labour. Because of the casual way in which the sub-clause is worded, this will mean even punishment in schools that involves labour, or any compelled labour even in homes is now proscribed.
5. Art 31 – The right to privacy has been made an absolute right without any derogations. I can’t begin to say how poorly this article has been worded.
6. Art 32 – Freedom of conscience, religion, belief and opinion. Interestingly, the imprecise wording of the COE draft has even managed to render the clause on conscience and free exercise of religion problematic. Art 32(3) states that a person may not be denied access to any institution, employment or facility... because of the person’s belief or religion. What this means is that only where the COE draft expressly provides otherwise (e.g. Kadhis’ Courts, religious practice (art 32(2)), will it be permissible to discriminate based on religion. So this excludes Church sponsored schools or indeed any other public or private institution. This also excludes any other activity that the Churches or other public or private institutions may be engaged in.
7. Art 33 – Freedom of expression.
• Art 33(1)(c). Freedom of artistic creativity – if not defined often ends up as a simple euphemism for pornography. Our current Constitution expressly derogates from the freedom of expression to the extent reasonably required in the interests of defence, public safety, public order, public morality or public health. You tell me what the absence of derogations from the COE draft implies.
Further, art 33(2)(c) expressly excludes hate speech and 33(2)(d) extends this to advocacy of hatred that constitutes vilification of others or is based on any ground of discrimination. Due to the casual way these rights have been worded, we may potentially find ourselves hindered from ever expressing our opinions on those defined groups falling under a discrimination category. In the Nordic countries, the UK and Canada, Christian preachers have been prosecuted for hate speech, for example for preaching against homosexuality or maybe atheism in our case.
8. Art 34 – Freedom of the media. There has been a long discussion between industry players and the Government on the content and regulation of the media in Kenya, culminating in the Media Act (2008?). Art 34 jettisons the achieved consensus and seeks to free the media of any control by government, political interests or commercial interests. Ask yourself how is this possible? Aren’t the owners of the media house commercial interest? Don’t political entities have the right to set up and run media stations? Shouldn’t the public interest in ensuring fairness in airwaves, access to information, decency, etc be provided for?
9. Art 43 – Economic and social rights.
• Art 43(1)(a) creates a right to reproductive health care. This clause is a very unnecessary clause.
a. First because it is subsumed under the general right to health care and is thus mere surplusage.
b. Second because the human body has numerous physiological systems including circulatory, respiratory, muscular, skeletal, nervous, excretory, digestive, hormonal, etc and there is no reason why the reproductive system should get preferential mention.
c. Third because reproductive health care is often used in certain sectors of the international community as a euphemism for a right to abortion.
• Art 43(2) talks about emergency medical treatment. This should be restricted to life-threatening or similar situations. Otherwise a situation where any sickness becomes deemed an emergency by the courts, or morning after pills become deemed emergency treatment, will develop.
10. Art 59 – This creates the Kenya National Human Rights and Equality Commission. This Commission will become a very powerful organ in Kenya’s future legal landscape under the COE Draft. It will have enforcement powers, investigative and determinative powers, etc. In art 59(1)(f), it is required to ensure compliance with obligations under treaties and conventions relating to human rights, and will thus be at the forefront of introducing to Kenya the understanding of foreign activist human rights bodies on moral issues.