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