Chapter on the issues of abortion, the death

Chapter v   – protection of fundamental rights and
freedoms of the Individual

71 – Protection of
right to life.

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The right to life is
the basic right that a person has the privilege not to be killed by another
individual. The idea of right to life is vital to arguments on the issues of
abortion, the death penalty, euthanasia, self-defence and war. As per numerous
human rights activists, death penalty disregards this right. According the
Kenyan constitution 2010(Kenya
Const. chapter 4, Article 71, 1). No person shall be deprived of his
life intentionally save in execution of the sentence of a court in respect of a
criminal offence under the law of Kenya of which he has been convicted. This
goes to show that the constitution approves of death penalty if sentenced by
the court.

Abortion is recognized
as an emotive, touchy and indeed divisive issue all around the world. The case
is no different here in Kenya. This was truly brought to light amid final
year’s submission for a new constitution where the church, who were at the
cutting edge of the NO Campaign, needed a solid anti-abortion law included
while at the same time there was a solid pro-abortion wave that stood against
the Church’s stand.

 But some time recently understanding the
abortion circumstance in Kenya, it is imperative to begin with know a few
truths and measurements about the Kenyan populace. Kenya’s populace on the later
tally is 41.6 million. This implies the nation has multiplied its populace in
the last two decades. This is caused to a great extent in portion by a birth
rate of approximately 36 births/1000 populace (compared to the UK that’s at 12
births/1000). The populace development rate is at 2.5% per year. This generally
interprets to 1 million individuals being included to the populace each year.

Proceeding with the
figures, later studies appear that more than 40% of births in Kenya are
unplanned. The figure rises to 47% among young people. As it were approximately
39% of ladies utilize contraceptives and it’s a third of these that depend on a
present day method. Reports show that there are approximately 310,000 abortions
each year in Kenya. 21,000 ladies are admitted each year due to abortion
related complications from having risky abortions – ordinarily done in
backstreet clinics. 2,600 of these in the long run pass on. Of the ladies
admitted, 12% were more seasoned than 34, 40% were between 25 and 34 while 16%
were teenagers.

What then can clarify
the reported 310,000 yearly abortions in Kenya? It is secure to say that behind
about each fetus removal in Kenya… is an undesirable pregnancy. Most
specialists concur that the high rate of fetus removal can be clarified by
obliviousness of or need of get to to contraceptives. Around 85% of high school
young ladies engaging in sex do not utilize contraceptives. 70% of this same
bunch allegedly engages in casual, unprotected sex. In a later study conducted
in Kenyan schools, as it were a quarter of the female understudies knew that
contraceptive pills were to be taken by females, not the guys. An indeed less
number knew to take the pills ordinary, not just before sex. Other measurements
appear that it is as it were 28% of ladies matured 20 – 24 that are utilizing

The teenagers cite disgrace
of childbirth outside of marriage, the failure to bolster a child monetarily
and being constrained to drop out of school as the fundamental reasons they
select for abortion. Women who are older frequently cite intense financial
conditions as their reasons for an abortion. A few in the urban settings say it
is more of a way of life choice than anything else since they would, for
illustration, or maybe seek after a career than have a child. Increased
westernization of the nation has made customarily expansive families to be
scowled upon by numerous present day ladies in common. The normal child per
lady in Kenya in the 70s was eight, while nowadays, the figure is fair beneath

Indeed with the new
constitution, abortion is still considered to a great extent illegal in Kenya.
It is assessed that as a result, approximately a fifth of all pregnancies in
the nations are ended through exceptionally illegal and risky means. As
expressed prior, the figures appear that approximately 21,000 ladies are
admitted with abortion related complications annually. A third of the ladies
treated are ordinarily in their moment trimester. Abortions done after the
first trimester tend to be more risky. Only 16% of the delivery institutions
can perform the vacuum goal strategy, which uses suction to purge the uterus
and is the favored strategy prescribed by the WHO (World Health Organization).
Women in provincial regions have much less get to to treatment as compared to
those in the urban settings. Too, it is private offices that handle more than
half of post abortion care cases, however they charge three times more than the
public sector facilities. In the 90s, the Ministry of Health
included contraceptive administrations in the post abortion care given in
locale hospitals after studies appeared the viability of family planning
counseling and contraceptive utilize in avoiding risky abortions.

Article 26 in the new
constitution was the bone of dispute between the pro-life and pro-choice
bunches in the construct up to final year’s referendum. Article 26 of the
Structure contains 4 clauses on the rights to life which state that:

Every person has the right to life;

The life of a person begins at

A person shall not be deprived of life
intentionally, except to the extent authorized by this constitution or other
written law;

Abortion is not permitted unless, in the
opinion of a trained health professional, there is a need for emergency
treatment, or the life or health of the mother is in danger, or if permitted by
any other written law.

No matter what side of
the talk about you’re on, each one of us in society is capable for protecting
health and life in common. The government is anticipated to:

Through parliament sanction relevant
enactment to execute health rights clauses

Organize for the civic instruction on
regenerative health all over the country

Reinvigorate family arranging programs

Ensure that there are qualified
therapeutic specialists in each clinic in the nation and profit medications in
the market.





The church can
contribute by:

Teaching ethical values and significance
of waiting until one is married before engaging in sexual exercises. This is
since most of the influenced people in society are the youth who do not have
the capacity to take care of families at their youthful age, so they conclusion
up looking for abortion administrations once they find they are anticipating a baby.

Organizing direction and counseling
sessions to individuals of society, for both the married and singles in their
social orders.

Schools can be
anticipated to:

Teach and counsel their students on
sexual matters from an early age. Explain the unsafe infections that one
dangers when they engage in irresponsible sexual exercises and too abortion in
case of pregnancy

Individuals are too expected to take
obligation of their activities at all times. In the case of married ladies or
indeed single women that are sexually active, expanded caution ought to be
watched when securing a few of the family arranging methods. They require to be
mindful of any side impacts that may be included. There ought to moreover be
clear discourses between couples in arrange to concur on a specific number of
children that they can both comfortably back in arrange to dodge cases of

 Men ought to back their ladies by considering
a few of the family planning strategies accessible for them so that it is not
fair the ladies who have to battle with controlling the number of children they

This what the
constitution has to say about self-defence and war

 (2) Without prejudice to any liability for a
contravention of any other law with respect to the use of force in those cases
hereinafter mentioned, a person shall not be regarded as having been deprived
of his life in contravention of this section if he dies as the result of the
use of force to such an extent as is reasonably justifiable in the
circumstances of the case –

(a) For the defence of
any person from violence or for the defence of property;

(b) In order to effect
a lawful arrest or to prevent the escape of a person lawfully detained;

(c) For the purpose of
suppressing a riot, insurrection or mutiny;

Or (d) in order to
prevent the commission by that person of a criminal offence, or if he dies as
the result of a lawful act of war.






Protection of freedom
of conscience

Everybody has the right
of freedom of conscience, religion and thought. This right incorporates
opportunity to change religion or conviction and freedom, either alone or in
community with others and in public or in private, to show religion or
conviction, in worship, educating, practice and observance.

(1) Except with his own
consent, no person shall be hindered in the enjoyment of his freedom of
conscience, and for the purposes of this section that freedom includes freedom
of thought and of religion, freedom to change his religion or belief, and
freedom, either alone or in community with others, and both in public and in
private, to manifest and propagate his religion or belief in worship, teaching,
practice and observance.

(2) Every religious
community shall be entitled, at its own expense, to establish and maintain
places of education and to manage a place of education which it wholly
maintains; and no such community shall be prevented from providing religious
instruction for persons of that community in the course of any education
provided at a place of education which it wholly maintains or in the course of
any education which it otherwise provides.

(3) Except with his own
consent (or, if he is a minor, the consent of his guardian), no person
attending a place of education shall be required to receive religious
instruction or to take part in or attend a religious ceremony or observance if
that instruction, ceremony or observance relates to a religion other than his

(4) No person shall be
compelled to take an oath which is contrary to his religion or belief or to
take an oath in a manner which is contrary to his religion or belief.

(5) Nothing contained
in or done under the authority of any law shall be held to be inconsistent with
or in contravention of this section to the extent that the law in question
makes provision which is reasonably required –

(a) In the interests of
defence, public safety, public order, public morality or public health; or

 (b) For the purpose of protecting the rights
and freedoms of other persons, including the right to observe and practise a
religion without the unsolicited intervention of members of another religion,
and except so far as that provision or, as the case may be, the thing done
under the authority thereof is shown not to be

(6) References in this
section to a religion shall be construed as including references to a religious
denomination, and cognate expressions shall be construed accordingly.






82 protection from
discrimination on grounds of race etc.

The right from
discrimination on grounds of race that a person has the privilege under the
Kenyan constitution article 82 (1) Subject to subsections (4), (5) and (8), no
law shall make any provision that is discriminatory either of itself or in its
effect. To be discriminated against according to section (3) In this section
the expression “discriminatory” means affording different treatment to
different persons attributable wholly or mainly to their respective
descriptions by race, tribe, place of origin or residence or other local
connexion, political opinions, colour, creed or sex whereby persons of one such
description are subjected to disabilities or restrictions to which persons of
another such description are not made subject or are accorded privileges or
advantages which are not accorded to persons of another such description.

Tribalism in Kenya is
without a doubt a major faltering square to democracy as well as socio-economic
advancement. It holds on since it gives a road via which state treats and
favors stream down from those in control to their tribesmen. Hence, loyalty to
tribe is given ever more noteworthy relevance than loyalty to the nation.

Tribalism is dependable
for a parcel of ills such as underdevelopment, corruption, rigging of elections
and violence/civil war. There is too no meritocracy as individuals are given
employments based on tribe regardless of having low capabilities. Subsequently
the careless utilize of accessible skills. The abuse of natural resources too
takes a tribal point, with resources in a few regions being overlooked or being
underutilized. Terrible governance and need of responsibility is moreover
connected to tribalism as individuals will never address a government run by
their tribesmen: indeed in the event that it makes mistakes they stay
supportive of it firmly and blindly. The reverse is also true. This implies
that indeed in the event that a government does well it will get daily
unnecessary criticism from the tribes not in the ruling party. Tribalism is in
this way utilized to withhold or give particular services and resources.

Thanks to tribalism,
citizens are presently addressing the call for Peace, Love and Solidarity. They
inquire for whom is this solidarity, peace for whom? For whose advantage? Equal
tribes? Tribal clashes/ethic viciousness is a common event in Kenya as in most
African nations such as Rwanda, Nigeria, Ethiopia, Zimbabwe etc. There is
hostility, doubt and contempt among different tribes so that indeed
intermarriages among a few tribes are emphatically disheartened by the older
traditionalist era as well as the rustic society.

The Luhya for
illustration have a proverb which says “elisimba lifwitsanga mulikobi lya
lyasie” meaning that a mongoose passes on sake of another mongoose. For
example a snake bites you, you murder any or all other snakes that you come
over – you don’t sit back and look for the correct one that bit you. In a
tribal setting, in case I am hurt by a Kikuyu, at that point whichever Kikuyu I
meet has to pay the cost. This has the capacity to increase tribal conflicts.

 Tribalism has penetrated politics and with the
appearance of multiparty politics, there emerged parcels of tribal parties. For
case Ford K is related with the Luhya, DP – Kikuyu, Ford People – Kisii, SPK –
coastal Kenya (mijikenda), NDP/LDP – Luo, KANU/UDM – Kalenjin, SDP – Kamba and
so on. Voting in Kenya whether parliamentary, civic or presidential is these
days done absolutely along tribal lines as each tribe accepts that it is its
time to “eat” (time to appreciate political control and resources).

In the political
circle, ‘leaders’ request to individuals of their claim tribes when they need
support, they moreover utilize their tribes as leverage when they deal for
positions and favors in government.

 Heightened tribalism in the nation has
compromised the church and rendered the religious society incapable to offer
direction on things of national pertinence. The church is no longer trusted to
be an impartial mediator. Different churches are partnered with particular
parties, for illustration the Presbyterian Church (PCEA) transparently embraced
President Kibaki’s candidature in 2007 and encouraged all its adherents to vote
for him.

Tribalism has been to
fault for government supported deaths as well as other political deaths such as
that of Tom Mboya, Robert Ouko, Othiambo Mbai and as of late Hon. Melitus
Mugabe Were from the Banyala community who was killed three weeks after winning
the Embakasi parliamentary situate (in a Kikuyu overwhelmed area).

The past government was
fond of fuelling tribal division. It was in the propensity of making and naming
rural locale with tribal names, so that the inhabitants got to feel that the
zone was entirely theirs and outsiders should to be ousted. For example Meru
District for Merus, Kisii for the Kisiis, Teso Area for the Tesos, Kuria for
the Kurias, Suba for the Suba individuals and indeed Taita Area for the Taita
tribesmen. This separate and run the show strategy was utilized amid race times
so that ‘outsiders’ would be removed in case they chose to vote in a diverse
way. For case the locals of Kisii area would feel defended to remove non Kisii
people living in their district.

The 2007 post-election
violence in Kenya is to a great extent credited to tribalism, due to the
reality that in Kenya decisions are essentially a matter of life and death. The
fate of whole communities is on the line. Raila Odinga (a luo) took advantage
of this circumstance and ganged up the other 41 tribes against the Kikuyu
driven government of Mwai Kibaki. He mobilized political overwhelming weights
from most of the other tribes and shaped the ODM (Orange Majority rule
Development). The Kikuyu overwhelmed PNU (Party of National Solidarity) was
subsequently confronted with an extreme challenge, indeed in spite of the fact
that the Kikuyu tribe is the most populous in the nation. ODM was as well strong.
Thus the election was never based on issues, ideologies or principles. Or maybe
it was a road of voting out the Kikuyus, a standoff between the Kikuyu- driven
PNU versus an amalgamation of Kenyan tribes beneath the ODM umbrella.

Violence definitely broke
out when it became clear that the decision had been stolen/rigged. Individuals
from president Kibaki’s tribe were chased down, assaulted and removed all over
the nation, as other citizens could just not envision being out in the cold,
jobless and with zero infrastructural improvement in their regions for another
five years.

If tribalism is to be
effectively combated at that point meritocracy has to be completely embraced in
both the civil service as well as the private/corporate sector. It is only the
most qualified individuals who ought to be considered for work placements. The
hiring process ought to be straightforward, interviews done and as it were the
most excellent candidates considered.

 When the issue of tribalism is adequately
tended to, the fundamental cause of the clashes will have been defused and in
time governance ought to move forward, corruption ought to diminish, skilled
citizens will return domestic, investment will be energized, improvements will
happen and living standards will most likely improve. Most critically tribal
violence will be annihilated in the nation.

Other rights under
protection from discrimination on grounds of race:

(2) Subject to
subsections (6), (8) and (9), no person shall be treated in a discriminatory
manner by a person acting by virtue of any written law or in the performance of
the functions of a public office or a public authority. 

(4) Subsection (1)
shall not apply to any law so far as that law makes provision – (a) with respect
to persons who are not citizens of Kenya; (b) with respect to adoption,
marriage, divorce, burial, devolution of property on death or other matters of

Protection from
discrimination on the grounds of race, etc. 9 of 1997, s. 9,

(c) for the application
in the case of members of a particular race or tribe of customary law with
respect to any matter to the exclusion of any law with respect to that matter
which is applicable in the case of other persons; or

(d) Whereby persons of
a description mentioned in subsection (3) may be subjected to a disability or
restriction or may be accorded a privilege or advantage which, having regard to
its nature and to special circumstances pertaining to those persons or
to persons of any other such description, is reasonably justifiable in a
democratic society.

(5) Nothing contained
in any law shall be held to be inconsistent with or in contravention of
subsection (1) to the extent that it makes provision with respect to standards
or qualifications (not being standards or qualifications specifically relating
to race, tribe, place of origin or residence or other local connexion,
political opinion, colour or creed) to be required of a person who is appointed
to an office in the public service, in a disciplined force, in the service of a
local government authority or in a body corporate established by any law for
public purposes.

 (6) Subsection (2) shall not apply to –

 (a) anything which is expressly or by
necessary implication authorized to be done by a provision of law referred to
in subsection (4); or

(b) the giving or
withholding of consent to a transaction in agricultural land by any body or
authority established by or under any law for the purpose of controlling
transactions in agricultural land.

(7) Subject to
subsection (8), no person shall be treated in a discriminatory manner in
respect of access to shops, hotels, lodging houses, public restaurants, eating
houses, beer halls or places of public entertainment or in respect of access to
places of public resort maintained wholly or partly out of public funds or
dedicated to the use of the general public.

 (8) Nothing contained in or done under the
authority of any law shall be held to be inconsistent with or in contravention
of this section to the extent that the law in question makes provision whereby
persons of a description mentioned in subsection (3) may be subjected to a
restriction on the rights and freedoms guaranteed by sections 76, 78, 79, 80
and 81, being a restriction authorized by section 76 (2), 78 (5),

 79 (2), 80 (2), or paragraph (a) or (b) of
section 81 (3).

(9) Nothing in
subsection (2) shall affect any discretion relating to the institution, conduct
or discontinuance of civil or criminal proceedings in a court that is vested in
a person by or under this Constitution or any other law.