The Draft Constitution says:

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

One of the "any other written law" could be the Reproductive Health and Rights Bill which was moved in Parliament by the Attorney General in 2008. The bill went through the first reading. The bill however did not see the light of day. It lapsed as parliament went into recess before the bill could go through the required stages for a bill to become an Act of Parliament. It could however be reintroduced at a later date.

The bill expressly provided for abortion requiring only the consent of the woman concerned including abortion of potential mentally or physically challenged kids. In the course of time, Kenya just needs a liberal enough parliament to have this in place.

The Draft Reproductive Health and Rights Bill, 2008 said:

“Termination of pregnancy” for the purpose of this Act means the separation and expulsion, by medical or surgical means, of the contents of the uterus of a pregnant woman before the fetus has become capable of sustaining an independent life outside the uterus.

‘’Unsafe abortion’’ means an induced abortion or termination of pregnancy conducted either by persons lacking the necessary skills or in an environment lacking the minimal medical standards.

PART IV - TERMINATION OF PREGNANCY

13. (1) A pregnancy may be terminated if a trained and certified Health Care Provider, after consultation with the pregnant woman, is of the opinion that: -

(i) The continued pregnancy would pose a risk of injury to the woman’s physical or mental health; or

(ii) There exists a substantial risk that the fetus would suffer from a severe physical or mental abnormality; or

(iii) Where the pregnancy resulted from sexual assault, defilement, rape, or incest.

(iv) The pregnant woman, on account of being a mentally disordered person, is not capable of appreciating pregnancy;

(v) the pregnancy is a result of Contraception failure.

(vi) Extreme social deprivation

(2) A statement by a pregnant woman to the medical practitioner concerned or proof of report of the incidence is adequate to prove that her pregnancy is as a result of sexual assault, rape, defilement or incest.

(3) The termination of the pregnancy shall only be carried out by a health care service provider in a facility authorized by the Medical and Dentist Practioners’ Board.

(4) Health providers shall offer non-mandatory and non-directive counseling, before and after the termination of a pregnancy.

(5) Any person who violates the provisions of section 13 (3) shall be guilty of an offence

14. (a) subject to section 13(1), termination of pregnancy may only take place with the consent of the pregnant woman.

(b) in the case of a pregnant minor, a health care service provider shall advice the minor to consult with her parents, guardian or such other persons with parental responsibility over the said minor before the pregnancy is terminated, provided that the best interest of the minor shall prevail.

(c ) in the case of a mentally disordered person, the health care service provider shall consult with the guardian over the said person before the pregnancy is terminated.

(c) A health care service provider who has a conscientious objection to the termination of pregnancy has a duty to refer the pregnant woman who requests the procedure to a health care service provider who provides the service and refusal or deliberate failure to so refer shall constitute an offence. Refusal or deliberate failure to do so shall constitute an offense.

15. A health care provider shall, as soon as is practicable, but not later than three months after the termination of a pregnancy in the prescribed form, collate the information and forward it to the relevant authority under cover of confidentiality.

16. Any person who violates any conditions set out in this Part, commits an offence and shall be liable upon conviction to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding three years both.

Preamble

The joint CITAM leadership, bringing together the Council of Elders, the Deacon Board, and the Senior Pastors met on 6th of May, 2010 to deliberate over the Proposed Draft Constitution and to come up with a joint position. The leadership considered this weighty matter against the full understanding that it has responsibility to offer prophetic and biblical direction to members of CITAM at this point in history.

The joint leadership consciously decided that it would be failing in its prophetic duty, to let this constitutional moment pass without drawing the Church's inspiration from our Statement of Faith and fundamental beliefs to inform and guide our analysis and position regarding the Proposed Draft Constitution.

Background

The church is consciously aware of the long quest by Kenyans to have a new constitution that would offer a new vision and constitutional framework for a better Kenya.

Indeed the leadership is cognizant of the fact that it has been more than twenty years, of a long and elusive search for the new constitutional dispensation for Kenya. Many, even among Christian leaders who have been at the fore front in the agitation for the new constitution, have suffered social and mental pain as well as physical brutality at the hands of those against reforms in the days past.

We are aware that following the 2007 General Election, the urge for a new constitution was accelerated after the adoption of the National Accord. Like most Kenyans, we believe that we need a new constitutional dispensation which anchors major reforms in a visionary constitutional framework for Kenya.

While applauding the efforts of those involved in the constitutional making process that is Parliament, the Committee of Experts and the Executive, we regret that the Proposed Draft Constitution has fundamental and non negotiable inadequacies that, in our view, urgently need to be addressed before the referendum.

CITAM has been part and parcel of the Kenya Church. The church has been at the forefront of calling for changes prior to the referendum. We have taken the view that the Government should make these changes now rather than later.

While the church has been ready for dialogue, the government side has shown no commitment to dialogue. We cannot, in the absence of a concrete agreement, believe any promise from the government to the effect that we support the passage of the draft now in the hope that the government will initiate the called for changes, soon after.

To that end, we now wish to reiterate our strong resolve to reject the Proposed Draft Constitution. We call on all our members to exercise their democratic right to vote NO at the referendum. Our position is informed by the following unresolved issues:

1. Article 2 (6) which provides that any treaty ratified by Kenya becomes part of law of Kenya, needs to be amended or deleted all together.

Our position:International treaties should be ratified and domesticated by Kenyans in exercise of their sovereignty through legislation to match the local context.

2. Article 8 states that there shall be no state religion. Previous constitutions had important provisions that "State and religion shall be separate" and "The State shall treat all religions equally."

Our position: These provisions must be put back. We believe that all religions should be treated equally without exception.

3. Article 24 (4) states that "the provisions of this chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis Courts, to persons who profess Muslim religion, in matters relating to personal status, marriage, divorce and inheritance".

Our position: This provision, which also provides for the creation of Kadhis Courts, offends the principle of all religions and faiths being equal before the law. It should be deleted altogether.

4. The Church believes that life starts at conception and that every human being has a right to life. Article 26 (3) and (4) make for dangerous precedents which leave room for taking away of life arbitrarily. In particular, sub article 4 on abortion states " Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law"

Our Position: The net effect of that sub-article is that abortion is allowed and all that is needed is the opinion of a health professional to back it up! Emergency treatment is not explained. This opens a floodgate to misinterpretation.

Indeed it is separate from when a mother's life is in danger. The proviso in the constitution also creates room for parliament to pass a law that could allow abortion.

The Church stands opposed to this window in the constitution which opens all possibilities for procurement of abortion,

The only exception should be when the life of the mother is in danger and the person to make that opinion is a registered medical practitioner as stated in the Bomas Draft.

5. The reference in Article 43 (1) (a) gives every person a right to "the highest attainable standards of health, which includes the right to health care services, including reproductive health care"

Our Position: The ordinary meaning of the word including reproductive health care also includes family planning and extends to the right to terminate a pregnancy. In other words, proponents of reproductive health advocate for the procurement abortion. We demand the deletion of this proviso.

In Conclusion

For the reasons given above, we take the prophetic position of saying NO to the entire draft! It is not about whether or not the Church loses at the referendum. It is not even about whether or not the Church will remain credible if the majority of the people say YES. Indeed it is not about the YES proponents being right and die NO ones being wrong. Rather, it about being right with God's word!.

The CITAM leadership chooses to obey God and to stand on His side at this point in history. We respectfully invite you to join with us.

Make no mistake, we have yet to begin our real march, to take Kenya for Christ! Whether or not the Proposed Draft Constitution passes, we commit to ensuring that what we stand for and hold dear as articulated in this communique, will form key advocacy agenda for the church in the days to come, until we get a constitution that truly honors and glorifies the Lord God Almighty!

God Bless You,

Bishop, CITAM and Chairman

Deacon Board & Elders' Council

Secretaries, CITAM

Why is a National Constitution important?

The Constitution of a nation is the most important governance document. It is the mother and father of all laws. Any law that is in conflict with the Constitution is null and void. It defines the people, their values and the nation and its destiny.

Kenya's current constitution was written in London with the help of the British colonialists, it is under review to correct past anomalies and ensure justice, fairness and equity for everyone.

Why are Christians against Kadhis Courts in the Draft Constitution?

Christians are against the inclusion of Kadhis Courts because it is an outright injustice to other religions. Kenya is a multi-religious society!

Christians' objections to the inclusion of Kadhi Courts were ignored by the government, the Constitution of Kenya Review Commission, the BOMAS gathering, the Committee of Experts and most recently the Parliamentary Select Committee.

Christians are left with no choice but to vote against the new Constitution unless the Courts are removed.

Are Christians against Muslims?

No. Christians are not against Muslims, They are against injustice and unfairness in the draft constitution perpetrated by the Government and the review organs.

Why didn't Christians request for Christian Courts?

Christians seek for a just society for all Kenyans, not only the rights of Christians. They advocated for an effective executive with an accountable President, an effective Parliament, an efficient judiciary, and respect for the rights and responsibilities that promote an equitable, just and moral values based society. The Constitution must set up a Judiciary that is good for all Kenyans.

How come Kadhis Court was not identified as a contentious issue by the Committee of experts?

Christians submitted thousands of memoranda to the Committee of Experts rejecting the inclusion of Kadhis courts in the constitution.

The Committee of Experts deliberately refused to identify Kadhi's Courts as a contentious issue, instead, the Committee of Experts that was supposed to be impartial, was partisan and openly campaigned for inclusion of Kadhis Courts in the constitution.

We now think it was deliberate because Muslims have dominated the Committee of Experts and the Parliamentary Select Committee.

Are there Christian MPs in Parliament who can speak for Christians the way Muslim MPs do?

There are Christian members of Parliament, but they have been silent. They have not stood for what is right and just. Church leaders are calling on Christian MPs to stand up and be counted, in future, we urge you as a citizen to vote for those people who will not sit by and watch as our country is sold out.

Meanwhile, Christians must organize themselves under the Lords guidance and speak the truth even if MPs fail us.

So what do Christians want?

It is not what Christians want but rather what Kenyans want. Kenyans want a constitution that defines how society is organized on the basis of justice, truth, fairness, effective checks and balances, and an effective bill of rights for all Kenyans.

With regard to religion, it should be one that provides for freedom of worship to people of all faiths under the Bill of Rights. The Constitution of Kenya must remain neutral with regard to religion, in order to offer equal protection to the people of all religions.

Why are Christians opposed to Kadhis courts yet they have not harmed anybody?

The fact that the Kadhi Courts did not harm non-Muslims does not mean it was right for them to be included in the Constitution. It was wrong and discriminatory against the people of other faiths from the beginning, Kenyans' patience since independence must not be taken for granted.

It is time to correct all wrong things. Muslims should by now be an integral part of the Kenyan community not requiring special treatment or protection!

The constitution must not divide the people along religious or other lines.

Kenyans want one nation, one land, one law that caters for all irrespective of religious affiliation. This is the practice in stable democracies around the world. We should not let a new constitution to perpetuate past injustices. Christ said: "And no one pours new wine into old wineskins. If he does, the wine will burst the skins, and both the wine and the wineskins will he ruined. No, he pours new wine into new wineskins"(Mark 2:22). Inclusion of Kadhis Courts in the new constitution is like pouring new wine into old wineskins, it will burst the skins.

Who qualifies to be a Kadhi?

A Kadhi is a Muslim judge or magistrate. While many claim that the Kadhi is a purely judicial officer who serves in a Kadhis Court, they in Kenya they perform religious functions. The Chief Kadhi declares the beginning of Ramadhan a major Muslim religious festival.

As an officer of government, it is discriminatory that, to be a Kadhi, one must profess the MUSLIM RELIGION. This means even if a Christian possesses knowledge of the MUSLIM LAW applicable to any SECTS OF MUSLIMS, he cannot serve as a Kadhi, meanwhile Muslims can preside over cases of non Muslims!

What law does Kadhis Court enforce?

Kadhis Courts enforce Islamic law commonly referred to as Sharia. Sharia is the Arabic word where our Kiswahili word Sheria is borrowed from. Sharia is the law system based on the the Koran, the Sunna, older Arabic law systems, parallel traditions, and the work of Muslim scholars over the two first centuries of Islam.

What are the implications of the inclusion of Kadhis Courts in the Constitution?

The inclusion of Islamic Sharia courts in the constitution divides Kenyans along religious lines, it would reinforce two classes of Kenyans, Muslims and the rest, Kenyans are seeking a constitution that unites.

Is the draft constitution Christian?

No. The draft Constitution is a collection of all just and fair laws from any source where they may be found. It draws from Judeo-Christian principles of equality, fairness, justice and equity does not make it Christian! These are values recognized by people from all religions, ethnic communities or professional backgrounds.

We as Kenyans do not want a Christian or Muslim or Hindu constitution. We want a Kenyan constitution made by all Kenyans for all Kenyans. Unfortunately, as it is now, the constitution appears to be Islamic! It mentions the word Muslim 6 times, and Kadhis 5 times. It does not mention the word Christian at all!

What have Christians proposed?

That the Constitution recognizes every Kenyans freedom of worship. That every Kenyan worships and submits to the religion they choose at their own cost and not government's cost. We appeal that all religious beliefs and practices be left to the Churches, Mosques and Temples where they belong.

Did Jomo Kenyatta agree with the Suitan to entrench Kadhis Court in the constitution?

No, Kenyatta undertook to the Sultan of Zanzibar to only preserve the jurisdiction of Kadhis courts. The Kadhi was to operate in the ten mile Coastal strip. While Section 66 of the current constitution provides that the Chief Kadhi and the Kadhis "shall each be empowered to hold a Kadhis court having jurisdiction within the former Protectorate or within such part of the former Protectorate as may he so prescribed", the government violated the constitution and established Kadhis Courts in areas which are outside the ten mite coastal strip like.

Christians filed a case in court to challenge this wanton violation of the constitution of Kenya.

If Christians succeed in rejecting the constitution during the referendum, will we not still have Kadhis Courts under the current Constitution anyway?

Christians are actively involved in this matter and will not stop at a No vote at the referendum. Christians filed a case in the High Court in 2004 to declare Kadhis Court unconstitutional. The hearing ended in February 2009. It is regrettable that time has lapsed and the High Court is yet to deliver the judgment. Christians will next sponsor a motion in Parliament to amend the current constitution, to delete section 66 which provides for Kadhis Court.

Should Kenyans reject the draft constitution just because it has Kadhis Courts?

Yes, if you had a soda with a small amount of poison, would you drink it? Let us not be deceived by people who either do not have the interest of Kenya at heart or are unable to see divisiveness of this issue, if they are serious and want us to accept the new constitution, let them delete all references to the Kadhis Court in the constitution.

Is it true that the Bill of Rights shall not apply to Muslims?

Yes. Muslims are the only Kenyans who are allowed to violate the Bill of Rights. Kenyans should not allow this to happen. Let every Kenyan be equal before the law of the land and particularly the Bill of Rights.

If Christians succeed in rejecting the Kadhis Court, will the Muslims unleash violence?

No. Christians and Kenyans in general should not allow themselves to be manipulated and intimidated by the threat of violence. Kenya is a democracy, Muslims must argue with ideas and the ballot box, not violence. In any case, it is hoped that Muslims in Kenya are peace loving and will respect the decision of Kenyans. The threat by some Muslim leaders to secede from Kenya is a matter that the security forces are able to handle.

What about abortion?

Abortion is the willful termination of a woman's pregnancy on the basis that it is unwanted. A woman may herself be under pressure because she desires to hide the fact or may be under pressure from other person(s) for the same reasons

When does life begin?

Life begins at Conception. All doctors who claim that life begins at birth are professionally untrustworthy, because the fetus in the mother's womb are usually alive. Whenever a fetus dies, it is always an emergency to operate and to remove it.

What do Pro-abortionists want?

Their interest is to make money from vulnerable women. In the course of the abortion process the life of the woman is endangered, their conscience and faith are trashed and they become guilty of murder.

What does God say about the life of the unborn?

The unborn babies are complete human beings created in the image of God. Any one who aborts them is a murderer. God called Jeremiah in the mother's womb (Jen 1:4-5). When Mary after she became pregnant met Elizabeth, John leaped in her womb to rejoice at Jesus, (Lk 1:41-44). God commanded that His people in the sixth commandment, "Thou shalt not kill".(Ex 20:13) Abortion is murder, the killing of the unborn innocents.

Does anti-abortion law hinder the practice of medicine?

No. The constitution allows a doctor, upon medical examination of a pregnant woman, to terminate a pregnancy if the life of the mother faces a medical condition that leads to the death of both mother and baby.

What about Marriage?

The Constitution must state that Marriage in Kenya is between two adults of the opposite sex. It must not allow any type of marriage which God calls an abomination. For us as Kenyans, let us pray that God blesses our men and women to form godiy and healthy marriages.


What can I do as a Kenyan?

As a citizen of this nation you must make your voice heard on these matters!

You also need to do the following:

Issued by Christian leaders from all Church Denominations, all Umbrella Organizations and all other Christian Organizations in Kenya, These include all Churches and organizations under the NCCK, the KEC, the EAK, the UCCK, FEICCK

Contact: info.kcl2010@gmail.com