Anne We vote on 4th ... with any changes after that ... Any major issues - including what I see as a replay of the "culture wars" ( http://en.wikipedia.org/wiki/Culture_war ) can be tabled after that ... :) On Thu, Jul 29, 2010 at 1:22 PM, Wamuyu Gatheru <wamuyulearn@yahoo.co.uk>wrote:
Anne, I think the proposed Constitution, on any issue of particular interest to any Kenyan, can provoke concern. My issue for example is Executive/Presidential control. I note for example that although freedom of information is provided for as a right, no legislation has been prescribed. As I mentioned earlier, the President will still have a free hand with the police. However, when I step back and look at the broad thrust of the document particularly on the separation of powers in the arms of government (and the independent Commissions), I conclude that overall the President will have to be a lot more accountable than he is today. So I prefer not to look over, around, under, within, between and behind clauses to confirm my fears of dictatorship.
On homosexual relationships I think the Committee of Experts was clear that they cannot legislate matters where there is wide disagreement in Kenyan society. Although the homosexual community and rights advocates may have tried and will try in the future to legalise gay marriages, the Committee unequivocally took the position of the majority. However, the Committee is clear that no one should be discriminated against or persecuted for any reason - including homosexuality. Homosexuals are human beings too and we do not want to see them bloodied by extremists and other fundamentalist people.
Please note, as with abortion, no society can legislate against these things. When one has an abortion or keeps a same sex partner, it does not infringe on the rights of anyone else. So the choice is a private matter that laws for or against can do little to change.
As a Christian, I will be happy to see more more faith, prayer and love and less activism in our Christian community. Those are the primary tools for us in creating the societies we seek. The law however important can never be our primary tool. We should also be equally outraged by extreme poverty, inequality and corruption that the proposed Constitution is trying to eliminate - I find that we Christians are overly interested in sexual sins more than other sins.
regards, Wamuyu ------------------------------ *From:* Anne Mbugua <anmbugua@musyimilaw.com> *To:* kikuyusforchange@googlegroups.com *Sent:* Wed, 28 July, 2010 18:55:32 *Subject:* my concerns
I have been very burdened by the gay rights debate. Can somebody help? Here are my observations.**
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*Article 45 – The Family*
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- Kenyans had asked during the constitution-making process that there is a clear prohibition of same sex marriages, as a way to defend our families.
- Both the Bomas and Wako drafts therefore had a clear provision stating, “*A PERSON SHALL NOT MARRY ANOTHER PERSON OF THE SAME SEX.*” Why was this lost in the Harmonization process?
- PCK states in Article 45 (2) that; “*every person has the right to marry a person of the opposite sex, based on the free consent of the parties.”* It just declares a right but does not bar other unions. So it is true that gays as of today cannot marry. But can they have unions awaiting declaration of rights by the court or embracement of the same through treaties and conventions?
- There is also no definition of MARRIAGE.
- Article 19 (3) states that the rights and fundamental freedoms in the bill of rights do not exclude other rights and freedoms not in the bill of rights but recognized or conferred by law except to the extent that they are inconsistent with this chapter. That means we can declare or acknowledge other RIGHTS.
§ Would sexual minorities rights be inconsistent? In my view NO! Article 27 forbids discrimination on ANY GROUND. So is sexual orientation! Sub article 5 states that a person shall not discriminate on the grounds specified or *contemplated *in clause (4). The current constitution states all the ground. PCK has *included *all grounds! This is a very fundamental departure. I agree that nobody should be discriminated on any ground. I question is, do Kenyans understand that this will capture all grounds including sexual orientation? If they did and still voted for it, that is ok.
§ In article 20 the courts have been empowered to develop the law to the extent that it does not give effects to a right or fundamental freedom. Same article states that in interpreting the Bill of Rights, a court or tribunal or other authority shall promote the values that underlie an open and democratic society… Do Kenyans know what is an open society?
- Article 56 mandates the states to put in place affirmative action programs to ensure that minorities and marginalized groups develop their cultural values, language and PRACTICES. Minority groups are not defined. However, marginalized group is defined in article 260 page 171 to mean a group of people who, because of laws and practices before, on, or after the effective date, were or are disadvantaged by discrimination on one or more of the grounds in Article 27(4) . Article 27 (4) forbids discrimination of a person on *Any Ground* including those stated and those contemplated. The ones stated in this article are not all inclusive. Among the relief the court can give in Article 23 is DECLARATION OF RIGHTS.
- The manner, in which Article 45 has been worded, opens a loophole through which the Courts could interpret the constitution in light of international practice, and recognize sexual minority’s rights. Note that article 27 (1) states that EVERY PERSON IS EQUAL BEFORE THE LAW AND HAS THE RIGHT TO EQUAL PROTECTION AND EQUAL BENEFIT BEFORE THE LAW. Exact clause used in South African case of MINISTER OF HOME AFFAIRS VS FOURIEthrough which the gays right to marry was pronounced.
How about international treaties and conventions. Are there some that as of today recognize the gay rights? Have you read the Hague Marriage Convention? What treaties will be there after august 2010? How about in 2025? 2040 etc. Would we want all those future ones ratified without representation to become part of the law of Kenya UNDER THIS CONSTITIUTION?
The family clause falls under the protected clauses. If amended is to be done, it must go through a referendum. Note that amendments under article 257 can only be after 2012 when counties are constituted.
Let’s discuss!
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*Anne Mbugua*
*Partner*
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-- RE: LYP MOMBASA MEETING: 23RD JUNE 2010. GUEST SPEAKER, DR EUNICE W. GATITHU, PROVINCIAL PHARMACIST COAST PROVINCE
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Good morning members,
We will have our LYP Professional Forum Tomorrow, Wednesday 23rd June 2010 at Summer-Link Hotel.
Time is 5:30pm to 7:30pm
During the meeting, we will have Dr Eunice W. Gatithu talking to us about general health and specifically HIV and Aids pandemic.
Your health is your concern, therefore see you in the meeting.
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