Chapter v – protection of fundamental rights andfreedoms of the Individual71 – Protection ofright to life.The right to life isthe basic right that a person has the privilege not to be killed by anotherindividual. The idea of right to life is vital to arguments on the issues ofabortion, the death penalty, euthanasia, self-defence and war. As per numeroushuman rights activists, death penalty disregards this right. According theKenyan constitution 2010(KenyaConst. chapter 4, Article 71, 1).
No person shall be deprived of hislife intentionally save in execution of the sentence of a court in respect of acriminal offence under the law of Kenya of which he has been convicted. Thisgoes to show that the constitution approves of death penalty if sentenced bythe court.Abortion is recognizedas an emotive, touchy and indeed divisive issue all around the world. The caseis no different here in Kenya. This was truly brought to light amid finalyear’s submission for a new constitution where the church, who were at thecutting edge of the NO Campaign, needed a solid anti-abortion law includedwhile at the same time there was a solid pro-abortion wave that stood againstthe Church’s stand. But some time recently understanding theabortion circumstance in Kenya, it is imperative to begin with know a fewtruths and measurements about the Kenyan populace. Kenya’s populace on the latertally is 41.6 million.
This implies the nation has multiplied its populace inthe last two decades. This is caused to a great extent in portion by a birthrate of approximately 36 births/1000 populace (compared to the UK that’s at 12births/1000). The populace development rate is at 2.5% per year. This generallyinterprets to 1 million individuals being included to the populace each year.Proceeding with thefigures, later studies appear that more than 40% of births in Kenya areunplanned. The figure rises to 47% among young people. As it were approximately39% of ladies utilize contraceptives and it’s a third of these that depend on apresent day method.
Reports show that there are approximately 310,000 abortionseach year in Kenya. 21,000 ladies are admitted each year due to abortionrelated complications from having risky abortions – ordinarily done inbackstreet clinics. 2,600 of these in the long run pass on. Of the ladiesadmitted, 12% were more seasoned than 34, 40% were between 25 and 34 while 16%were teenagers.What then can clarifythe reported 310,000 yearly abortions in Kenya? It is secure to say that behindabout each fetus removal in Kenya…
is an undesirable pregnancy. Mostspecialists concur that the high rate of fetus removal can be clarified byobliviousness of or need of get to to contraceptives. Around 85% of high schoolyoung ladies engaging in sex do not utilize contraceptives. 70% of this samebunch allegedly engages in casual, unprotected sex. In a later study conductedin Kenyan schools, as it were a quarter of the female understudies knew thatcontraceptive pills were to be taken by females, not the guys. An indeed lessnumber knew to take the pills ordinary, not just before sex. Other measurementsappear that it is as it were 28% of ladies matured 20 – 24 that are utilizingcontraceptives.The teenagers cite disgraceof childbirth outside of marriage, the failure to bolster a child monetarilyand being constrained to drop out of school as the fundamental reasons theyselect for abortion.
Women who are older frequently cite intense financialconditions as their reasons for an abortion. A few in the urban settings say itis more of a way of life choice than anything else since they would, forillustration, or maybe seek after a career than have a child. Increasedwesternization of the nation has made customarily expansive families to bescowled upon by numerous present day ladies in common. The normal child perlady in Kenya in the 70s was eight, while nowadays, the figure is fair beneathfour.Indeed with the newconstitution, abortion is still considered to a great extent illegal in Kenya.It is assessed that as a result, approximately a fifth of all pregnancies inthe nations are ended through exceptionally illegal and risky means.
Asexpressed prior, the figures appear that approximately 21,000 ladies areadmitted with abortion related complications annually. A third of the ladiestreated are ordinarily in their moment trimester. Abortions done after thefirst trimester tend to be more risky. Only 16% of the delivery institutionscan perform the vacuum goal strategy, which uses suction to purge the uterusand is the favored strategy prescribed by the WHO (World Health Organization).Women in provincial regions have much less get to to treatment as compared tothose in the urban settings. Too, it is private offices that handle more thanhalf of post abortion care cases, however they charge three times more than thepublic sector facilities.
In the 90s, the Ministry of Healthincluded contraceptive administrations in the post abortion care given inlocale hospitals after studies appeared the viability of family planningcounseling and contraceptive utilize in avoiding risky abortions.Article 26 in the newconstitution was the bone of dispute between the pro-life and pro-choicebunches in the construct up to final year’s referendum. Article 26 of theStructure contains 4 clauses on the rights to life which state that:1. Every person has the right to life;2. The life of a person begins atconception;3.
A person shall not be deprived of lifeintentionally, except to the extent authorized by this constitution or otherwritten law;4. Abortion is not permitted unless, in theopinion of a trained health professional, there is a need for emergencytreatment, or the life or health of the mother is in danger, or if permitted byany other written law.No matter what side ofthe talk about you’re on, each one of us in society is capable for protectinghealth and life in common. The government is anticipated to: · Through parliament sanction relevantenactment to execute health rights clauses· Organize for the civic instruction onregenerative health all over the country· Reinvigorate family arranging programs · Ensure that there are qualifiedtherapeutic specialists in each clinic in the nation and profit medications inthe market. The church cancontribute by:· Teaching ethical values and significanceof waiting until one is married before engaging in sexual exercises. This issince most of the influenced people in society are the youth who do not havethe capacity to take care of families at their youthful age, so they conclusionup looking for abortion administrations once they find they are anticipating a baby.· Organizing direction and counselingsessions to individuals of society, for both the married and singles in theirsocial orders.Schools can beanticipated to:· Teach and counsel their students onsexual matters from an early age.
Explain the unsafe infections that onedangers when they engage in irresponsible sexual exercises and too abortion incase of pregnancy· Individuals are too expected to takeobligation of their activities at all times. In the case of married ladies orindeed single women that are sexually active, expanded caution ought to bewatched when securing a few of the family arranging methods. They require to bemindful of any side impacts that may be included. There ought to moreover beclear discourses between couples in arrange to concur on a specific number ofchildren that they can both comfortably back in arrange to dodge cases ofabortion. Men ought to back their ladies by consideringa few of the family planning strategies accessible for them so that it is notfair the ladies who have to battle with controlling the number of children theyget.This what theconstitution has to say about self-defence and war (2) Without prejudice to any liability for acontravention of any other law with respect to the use of force in those caseshereinafter mentioned, a person shall not be regarded as having been deprivedof his life in contravention of this section if he dies as the result of theuse of force to such an extent as is reasonably justifiable in thecircumstances of the case – (a) For the defence ofany person from violence or for the defence of property; (b) In order to effecta lawful arrest or to prevent the escape of a person lawfully detained; (c) For the purpose ofsuppressing a riot, insurrection or mutiny; Or (d) in order toprevent the commission by that person of a criminal offence, or if he dies asthe result of a lawful act of war. Protection of freedomof conscience Everybody has the rightof freedom of conscience, religion and thought.
This right incorporatesopportunity to change religion or conviction and freedom, either alone or incommunity with others and in public or in private, to show religion orconviction, in worship, educating, practice and observance.(1) Except with his ownconsent, no person shall be hindered in the enjoyment of his freedom ofconscience, and for the purposes of this section that freedom includes freedomof thought and of religion, freedom to change his religion or belief, andfreedom, either alone or in community with others, and both in public and inprivate, to manifest and propagate his religion or belief in worship, teaching,practice and observance. (2) Every religiouscommunity shall be entitled, at its own expense, to establish and maintainplaces of education and to manage a place of education which it whollymaintains; and no such community shall be prevented from providing religiousinstruction for persons of that community in the course of any educationprovided at a place of education which it wholly maintains or in the course ofany education which it otherwise provides. (3) Except with his ownconsent (or, if he is a minor, the consent of his guardian), no personattending a place of education shall be required to receive religiousinstruction or to take part in or attend a religious ceremony or observance ifthat instruction, ceremony or observance relates to a religion other than hisown. (4) No person shall becompelled to take an oath which is contrary to his religion or belief or totake an oath in a manner which is contrary to his religion or belief. (5) Nothing containedin or done under the authority of any law shall be held to be inconsistent withor in contravention of this section to the extent that the law in questionmakes provision which is reasonably required – (a) In the interests ofdefence, public safety, public order, public morality or public health; or (b) For the purpose of protecting the rightsand freedoms of other persons, including the right to observe and practise areligion without the unsolicited intervention of members of another religion,and except so far as that provision or, as the case may be, the thing doneunder the authority thereof is shown not to be (6) References in thissection to a religion shall be construed as including references to a religiousdenomination, and cognate expressions shall be construed accordingly. 82 protection fromdiscrimination on grounds of race etc.
The right fromdiscrimination on grounds of race that a person has the privilege under theKenyan constitution article 82 (1) Subject to subsections (4), (5) and (8), nolaw shall make any provision that is discriminatory either of itself or in itseffect. To be discriminated against according to section (3) In this sectionthe expression “discriminatory” means affording different treatment todifferent persons attributable wholly or mainly to their respectivedescriptions by race, tribe, place of origin or residence or other localconnexion, political opinions, colour, creed or sex whereby persons of one suchdescription are subjected to disabilities or restrictions to which persons ofanother such description are not made subject or are accorded privileges oradvantages which are not accorded to persons of another such description.Tribalism in Kenya iswithout a doubt a major faltering square to democracy as well as socio-economicadvancement. It holds on since it gives a road via which state treats andfavors stream down from those in control to their tribesmen. Hence, loyalty totribe is given ever more noteworthy relevance than loyalty to the nation.
Tribalism is dependablefor a parcel of ills such as underdevelopment, corruption, rigging of electionsand violence/civil war. There is too no meritocracy as individuals are givenemployments based on tribe regardless of having low capabilities. Subsequentlythe careless utilize of accessible skills. The abuse of natural resources tootakes a tribal point, with resources in a few regions being overlooked or beingunderutilized.
Terrible governance and need of responsibility is moreoverconnected to tribalism as individuals will never address a government run bytheir tribesmen: indeed in the event that it makes mistakes they staysupportive of it firmly and blindly. The reverse is also true. This impliesthat indeed in the event that a government does well it will get dailyunnecessary criticism from the tribes not in the ruling party. Tribalism is inthis way utilized to withhold or give particular services and resources.Thanks to tribalism,citizens are presently addressing the call for Peace, Love and Solidarity. Theyinquire for whom is this solidarity, peace for whom? For whose advantage? Equaltribes? Tribal clashes/ethic viciousness is a common event in Kenya as in mostAfrican nations such as Rwanda, Nigeria, Ethiopia, Zimbabwe etc.
There ishostility, doubt and contempt among different tribes so that indeedintermarriages among a few tribes are emphatically disheartened by the oldertraditionalist era as well as the rustic society.The Luhya forillustration have a proverb which says “elisimba lifwitsanga mulikobi lyalyasie” meaning that a mongoose passes on sake of another mongoose. Forexample a snake bites you, you murder any or all other snakes that you comeover – you don’t sit back and look for the correct one that bit you. In atribal setting, in case I am hurt by a Kikuyu, at that point whichever Kikuyu Imeet has to pay the cost. This has the capacity to increase tribal conflicts. Tribalism has penetrated politics and with theappearance of multiparty politics, there emerged parcels of tribal parties. Forcase Ford K is related with the Luhya, DP – Kikuyu, Ford People – Kisii, SPK –coastal Kenya (mijikenda), NDP/LDP – Luo, KANU/UDM – Kalenjin, SDP – Kamba andso on. Voting in Kenya whether parliamentary, civic or presidential is thesedays done absolutely along tribal lines as each tribe accepts that it is itstime to “eat” (time to appreciate political control and resources).
In the politicalcircle, ‘leaders’ request to individuals of their claim tribes when they needsupport, they moreover utilize their tribes as leverage when they deal forpositions and favors in government. Heightened tribalism in the nation hascompromised the church and rendered the religious society incapable to offerdirection on things of national pertinence. The church is no longer trusted tobe an impartial mediator. Different churches are partnered with particularparties, for illustration the Presbyterian Church (PCEA) transparently embracedPresident Kibaki’s candidature in 2007 and encouraged all its adherents to votefor him.Tribalism has been tofault for government supported deaths as well as other political deaths such asthat of Tom Mboya, Robert Ouko, Othiambo Mbai and as of late Hon. MelitusMugabe Were from the Banyala community who was killed three weeks after winningthe Embakasi parliamentary situate (in a Kikuyu overwhelmed area). The past government wasfond of fuelling tribal division.
It was in the propensity of making and namingrural locale with tribal names, so that the inhabitants got to feel that thezone was entirely theirs and outsiders should to be ousted. For example MeruDistrict for Merus, Kisii for the Kisiis, Teso Area for the Tesos, Kuria forthe Kurias, Suba for the Suba individuals and indeed Taita Area for the Taitatribesmen. This separate and run the show strategy was utilized amid race timesso that ‘outsiders’ would be removed in case they chose to vote in a diverseway. For case the locals of Kisii area would feel defended to remove non Kisiipeople living in their district.The 2007 post-electionviolence in Kenya is to a great extent credited to tribalism, due to thereality that in Kenya decisions are essentially a matter of life and death.
Thefate of whole communities is on the line. Raila Odinga (a luo) took advantageof this circumstance and ganged up the other 41 tribes against the Kikuyudriven government of Mwai Kibaki. He mobilized political overwhelming weightsfrom most of the other tribes and shaped the ODM (Orange Majority ruleDevelopment). The Kikuyu overwhelmed PNU (Party of National Solidarity) wassubsequently confronted with an extreme challenge, indeed in spite of the factthat 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 maybeit was a road of voting out the Kikuyus, a standoff between the Kikuyu- drivenPNU versus an amalgamation of Kenyan tribes beneath the ODM umbrella.Violence definitely brokeout when it became clear that the decision had been stolen/rigged.
Individualsfrom president Kibaki’s tribe were chased down, assaulted and removed all overthe nation, as other citizens could just not envision being out in the cold,jobless and with zero infrastructural improvement in their regions for anotherfive years.If tribalism is to beeffectively combated at that point meritocracy has to be completely embraced inboth the civil service as well as the private/corporate sector. It is only themost qualified individuals who ought to be considered for work placements. Thehiring process ought to be straightforward, interviews done and as it were themost excellent candidates considered.
When the issue of tribalism is adequatelytended to, the fundamental cause of the clashes will have been defused and intime governance ought to move forward, corruption ought to diminish, skilledcitizens will return domestic, investment will be energized, improvements willhappen and living standards will most likely improve. Most critically tribalviolence will be annihilated in the nation.Other rights underprotection from discrimination on grounds of race:(2) Subject tosubsections (6), (8) and (9), no person shall be treated in a discriminatorymanner by a person acting by virtue of any written law or in the performance ofthe 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 respectto persons who are not citizens of Kenya; (b) with respect to adoption,marriage, divorce, burial, devolution of property on death or other matters ofpersonal Protection fromdiscrimination on the grounds of race, etc. 9 of 1997, s. 9,(c) for the applicationin the case of members of a particular race or tribe of customary law withrespect to any matter to the exclusion of any law with respect to that matterwhich is applicable in the case of other persons; or (d) Whereby persons ofa description mentioned in subsection (3) may be subjected to a disability orrestriction or may be accorded a privilege or advantage which, having regard toits nature and to special circumstances pertaining to those persons orto persons of any other such description, is reasonably justifiable in ademocratic society. (5) Nothing containedin any law shall be held to be inconsistent with or in contravention ofsubsection (1) to the extent that it makes provision with respect to standardsor qualifications (not being standards or qualifications specifically relatingto race, tribe, place of origin or residence or other local connexion,political opinion, colour or creed) to be required of a person who is appointedto an office in the public service, in a disciplined force, in the service of alocal government authority or in a body corporate established by any law forpublic purposes. (6) Subsection (2) shall not apply to – (a) anything which is expressly or bynecessary implication authorized to be done by a provision of law referred toin subsection (4); or (b) the giving orwithholding of consent to a transaction in agricultural land by any body orauthority established by or under any law for the purpose of controllingtransactions in agricultural land. (7) Subject tosubsection (8), no person shall be treated in a discriminatory manner inrespect of access to shops, hotels, lodging houses, public restaurants, eatinghouses, beer halls or places of public entertainment or in respect of access toplaces of public resort maintained wholly or partly out of public funds ordedicated to the use of the general public. (8) Nothing contained in or done under theauthority of any law shall be held to be inconsistent with or in contraventionof this section to the extent that the law in question makes provision wherebypersons of a description mentioned in subsection (3) may be subjected to arestriction on the rights and freedoms guaranteed by sections 76, 78, 79, 80and 81, being a restriction authorized by section 76 (2), 78 (5), 79 (2), 80 (2), or paragraph (a) or (b) ofsection 81 (3).
(9) Nothing insubsection (2) shall affect any discretion relating to the institution, conductor discontinuance of civil or criminal proceedings in a court that is vested ina person by or under this Constitution or any other law.