Proposed new Constitution: Why article 26 (4) is unnecessary

Anybody who has taken the trouble of reading the proposed new Constitution of the Republic of Kenya set to face a plebiscite on 4^th August 2010 will agree with me that it’s a document with the potentiality of transforming a stagnating nation into a progressive state within an individual’s life time.

This is not to say that the proposed new Constitution is as white as snow. Like all things man made, it has one two hiccups either editorial or logical oversights.

Seeing a section of the Kenyan public oppose the proposed new Constitution, I was - as a concerned citizen - taken aback considering what we have gone through as a nation to reach where we are in our quest for a new constitution.

Overtime, since Parliament unanimously adopted the proposed Constitution without any amendments, I have pondered over the grievances of the opponents of this Constitution ranging from land to abortion.

I have had to read several times the articles of the proposed new Constitution touching on these issues of contention. And I have come to the conclusion that whereas most lack basis, one issue has struck my conscience as a valid concern.

Article 26 (1) of the proposed new Constitution states that “Every person has the right to life,” and Clause 2 of the same article goes further to define when such a life begins by stating that “The life of a person begins at conception.”

Going by these two clauses, one would be right to conclude that in every conception there are at least two persons i.e. the woman and whatever is conceived in her womb.

Having that conclusion in mind, I would wish to bring clause 3 of the same article to your attention. It sates that “A person shall not be deprived of life intentionally, except to the extent authorized by this constitution or other written law.”

This in essence means that the life of a person can be taken away intentionally under certain circumstances - which in all cases would be extraordinary or out of the normal – as may be provided for in this Constitution or other written law.

And up to this point one question begs for an answer and that question is; who according to the proposed new Constitution is a person?

Clause 2 of this article has the answer. It states that the life of a person begins at conception. Essentially, meaning that anything conceived in a woman’s womb after “coming together” with a man (male human being) is considered a person at least to the extent of this proposed new constitution.

I am not a Doctor neither am I a health professional but with my little knowledge, I am aware that an abortion is a procedure that leads to the intentional termination of pregnancy with a single goal of saving the life of a pregnant woman commonly referred to us “the mother”. I am also aware that pregnancy is at least one of, if not the sole result of a conception.

Considering that the proposed new Constitution deems a person as being from conception and that article 26 (3) already deals with conditions under which a person may be deprived of his/her right to life, it beats logic and I find it very unnecessary that article 26 (4) found its way into the proposed new Constitution.

Abortion is such a sensitive issue and complex subject that we may not be able to comprehend as laymen.

The committee of experts should have ended article 26 at clause 3. They ought to have left out anything abortion from the proposed new constitution. In fact it should have not even been mentioned in the first place.

In any case, if you are keen you will notice that article 26 (3) already deals with it in away not so obvious to most mortals' comprehension.