•Saturday, June 05, 2010
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.
8 comments:
I find the Reproductive Health and Right Bill is one such a progressive piece of Legislation.
It moves our debate forward.
Odhiambo T Oketch
Wewe! Jamaapoa,
Please get your facts right. There is no such Bill called the Reproductive Health and Right Bill that has been passed by Parliament. Certainly, not moved by me! I moved the Sexual Offences Bill, which focused on sexual violence and is now law. (Check the Kenya laws online website for this). There is no provision for abortion in this law.
However, as a member of the CoE, let me assure you that wording of article 26(4) did not include reference to future Acts of Parliament that may or may not provide for abortion but it is in reference to existing laws that have a direct correlation to the issue at hand, namely the Penal Code (sanctions for criminal abortion), Sexual Offences Act (post rape care treatment, the Public Health Act) etc. We have recorded this on the hansard official record of the CoE, which can be used by the Public to interrrogate what we meant by each legal term used.
Please stop reading meanings into things that do not exist.
Njoki Ndungu
Interesting to see Njoki's comments here.
I think the draft is much more progressive than the old one and we need to pass it. No constitution is perfect and whatever needs to be amended can be done at a future date.
Barbra.
@Njoki, I agree you did not move it but was moved by AG as corrected in the post. I referred to it as a Bill assuming that it is a Bill coz it is not passed by parliament, otherwise it would be referred to as an Act.
I have however found articles that quote you "defending" the bill.
One thing I wonder about the draft is if COE did not mean to refer to future laws why not state that kinaga ubaga rather than leave room for all possible interpretations, why the fuzziness?
As for the Hansard, many Kenyans do not have the benefit of access to such documents. Are they even supposed to be jointly read with the constitution? As in is the proposed draft complete without having the Hansard to clarify what the COE wanted to mean in every clause?
Its high time irresponsible Kenyan women and men learnt to take up their responsibilities!Legalisation on abortion would therefore imply on increased moral decay as is the case now!
having njoki ndungu say it referred to existing laws is absurd. With my little grammar on implicature and tenses, nothing expressly indicates it is NOT referring to future laws
people, we have a bigger problem at hand. We may have the best laws ever bt how are the enforced, implemented.... abortions take place even now that abortion is illegal left, right n centre!!!!! How many have lost their lives?
WA MAINA
i strongly cocur with njoki that written law can only mean existing laws and not future laws and that is precisely the penal code, sexual offences Act etc