Women's rights and Kenya's constitution: Challenging 'men of faith'

What gives a church in which celibacy is equated with holiness, in which males have all the undemocratic power, the right to a place at the table where laws are made about women’s bodies?

A large number of contradictions have arisen in the Kenyan debate on the new constitution just passed through the Kenyan parliament in preparation for a referendum scheduled for 2 July 2010, and particularly around the clauses on the right to abortion.

We are Kenyan women in the diaspora who have struggled with other women in Kenya and other nations on the right to life for the mother as well as the unborn child. With CEDAW (Convention on the Elimination of all Forms of Discrimination against Women) and the African Charter on Human and People’s Rights, particularly the Protocol on the Rights of Women in Africa, established, we wish to join a debate which is a fundamental concern over the fundamental right to life and which is critical in the bill of rights and the Universal Declaration of Human Rights.

However, we would like to state from the outset that this debate is currently moribund as far as the referendum is concerned as time has lapsed in relation to the act. Opening the door now to one group of people will raise further questions about democracy and the rule of law. As women, whose lives and bodies this is all about, we therefore cannot remain silent as we do not believe that those who purport to represent us either seek our view or care about our humanity. We have to question the protests by religious groups and politicians such as William Ruto, who hope to manipulate the ignorance and vulnerability of the faithful to jettison the new constitution on this specific aspect on emotive and pseudo-religious grounds. We believe that they are seeking power and hiding behind religion to derail what is a very important document in our lives as Kenyans, the new Kenyan constitution, which we unequivocally support as it gives all Kenyans greater protection, rights and freedoms than the old one.

In reality, the current position is that the clause itself to make abortion legal was not introduced in the new constitution, nor the old and existing law relating to the termination of pregnancy on medical grounds deleted. A vote, for or against the new constitution will therefore not change anything on this question.

The clause in question is Section 26 (2) of the new draft constitution, which says 'every person has a right to life and that life begins at conception', while Section 26 (4) allows the termination of a pregnancy when in the opinion of trained health professionals there is a need for emergency treatment, or the life or health of the mother is in danger. Allowing abortion during a medical emergency is nothing new in Kenyan law. Under the current law it is legally permissible to carry out an abortion to save the life of the mother. Section 240 of the penal code, which was drafted in 1930 and has never raised any controversy, states: 'A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother's life, if the performance of the operation is reasonable, having regard to the patient's state at the time and to all the circumstances of the case.'

All this means that the church leaders are being dishonest when they cite abortion as one of the main reasons for their opposition to the draft constitution.

Nonetheless, the NCCK (National Council of Churches of Kenya) has gone on record as saying they will and are indeed already mobilising their constituency to defeat the constitution in the referendum, and the Catholic church and conservative elements in the political classes have promised the same.

The key questions of women’s human rights – of a woman’s right to determine her life and destiny – will be left to institutions in which women have little democratic representation or say owing to their historical structures and cultural practices, for instance, in the Catholic church hierarchy and its make-up of only male priesthoods who are supposed to practice celibacy as religious norm. Furthermore, in the wider political context, such a significant voice cannot be said to be democratic in its representation nor sympathetic, by its experiences, to the plight of women and their bodies. How else can one explain that Article 43 of the new draft, which states that every person has a right to the highest attainable standard of health (which includes the right to healthcare services including reproductive healthcare), is similarly seen with suspicion by the men of the church as another way of smuggling in abortion?

We have witnessed the agony of women caught in catch-22 type situations. Some of these are married women in need of contraceptives to avoid those accidents of unwanted pregnancy especially, where they too cannot make decisions when and how to have sex.

Even when contraceptives are available and women are ready to use them or persuade their male partners to use condoms, the men of the church, especially those of the Catholic church, forbid contraceptive use and burden women with what they call the natural method. The women are thus forced to make a choice of the better evil. Often they choose contraceptives, but thereafter carry the psychological burden of perpetually 'living in sin'. If any misfortune befalls them or their family, say, they or somebody else in their family falls ill, they carry the burden of guilt as they believe this to be punishment for doing what the men of the church forbid. These are the lucky few compared to the millions of women who, even when mass- and gang-raped (as was the case during Kenya's post-election violence) and become pregnant, are not allowed to have a safe abortion.

With little choice, up to 300,000 women undergo backstreet, unsafe abortions in Kenya each year, though abortion is banned. If they are lucky not to be part of the 3,000 women who die annually as a result of these unsafe abortions, they may be injured and traumatised for life. This is because of the illegal nature of the abortions which they cannot talk about or seek medical, counselling or moral support for. The traumas associated with illegal abortion are well-documented, while the link with HIV/AIDS and other sexually transmitted diseases is also only too clear. This further violates the women’s right to life in a context where she would find it difficult to violate her conjugal responsibilities.

The majority of those who seek abortion are young women under 25 years of age. This is of course termed as criminal because those who have the power to change the law for the benefit of women find no need to do so, and those who have the need to change the law have no power to do so. Instead the blame is solely on the powerless women, a blame-the-victim syndrome.

The message from the men of the church is that women should abstain or be faithful to avoid ungodly sex and abortion. No, being faithful is no option either because the men of the Catholic church neither allow contraceptive use within or outside marriage, nor sexual education for the young and unmarried. This prohibitive script and history of the church is loud and clear, as is evident from the following scenarios.

In February 1993, the Catholic church protested against a proposal by the Kenyan Ministry of Education to make 'family life education' an examinable subject, which would have meant making sexual education in schools universal. The protest by the Catholic church forced the government to abandon the idea, and this was by no means the only drama played or directed by the men of the church. During the International Conference on Population and Development (ICPD) in Cairo in 1994, the Catholic church in Kenya, for example, accused the Kenyan government of promoting abortion. This was followed in 1996 with the burning of condoms and sexual education books publicly. During this time different religious faiths joined in the staging of this act in what was then called the 'un-holy alliance'.

Neither is this drama just a local phenomenon. At international conferences, the Catholic church and the Holy See – which has observer status at the UN – frequently uses its power to block any reference to contraception and family planning, an action that intimidates and enforces consensus or silence among delegates from largely poor Catholic countries. And just as the un-holy alliance in Kenya, the Catholic church seeks alliances with Muslims and Protestant fundamentalist evangelicals and other religious and political conservatives to obstruct policies supporting sexual education, contraceptives and abortion.

For instance, in the international context, the alliances in support of prohibitive policies are evident in the 'gag rule' instituted in 1984 by President Ronald Reagan, then known as the 'Mexico City Policy' by which aid to international family planning organisations that provided abortion services, abortion counselling or advocated for abortion access was withdrawn. Although this was suspended during the Clinton administration in 1995, it was reinstated by President Bush in 2001 and is now suspended in the Obama administration. The role of religious fundamentalists in US foreign policy go back to the period of the Cold War, when the US supported such groups to counter the Soviet Union's influence.

Should the moral persuasion fail, more aggressive scenarios unfold, including violence such as the anti-abortion protests involving vandalising abortion clinics and killing doctors – for example, the recent murder of Dr George Tilley, a gynaecologist performing late abortions to save women’s lives in the US. This sends out chilling messages across the world and leaves one to wonder, what happened to the fifth commandment 'thou shall not kill?'

Another tactic is to enforce 'abstinence-only sex education' by creating the fear of what would happen to teenagers who fail to adhere to the Christian sexual moral script. Condom use is highly discredited for being ineffective in preventing sexually transmitted diseases and pregnancy, while premarital sex is said to lead to an unhappy marriage in the future. Sexually active teens are portrayed as more likely to be depressed and suicidal and are talked into adopting secondary virginity. All this is contrary to the power and ready availability of pornography, which sends out a message which is completely the opposite in both the published media and internet, on which these same righteous bodies have very little to say.

From these scripts and dramas, the men of faith and in particular those of the Catholic church would like everybody to be celibate, except that those already practicing celibacy according to the tenets of the Roman Catholic church are caught in worldwide sexual scandals involving the abuse of children and women, including nuns.

Perhaps it is not the abuse of children and women that is the problem, because as the men of the church preach to us, to sin is human and they too are human. Rather, the problem is the denial and silence and even cover-up of scandals by the church leadership and the failure to address human sexuality honestly. In her memoir entitled 'The Cannibal’s Wife', Yvonne Maes, a Canadian Catholic nun, gives a vivid account of the way she was sexually abused by a male priest who had been entrusted to help her recover from a work-related burnout condition and of her ordeal in getting justice, which in the end she did not get because the male hierarchy did everything to cover up and protect the offending male priest.

How many children in Kenya, Ireland, the USA, Germany, Belgium, South Africa, Sweden, Norway, Austria and indeed the entire world have been abused by the men of faith? What happened to the seventh commandment 'thou shall not commit adultery'? (Although for us, the abuse of children is not adultery, but rather a crime against humanity.) How many children have been violated by men of the church or religious men? How many girls and vulnerable women have been impregnated by these men? How many have died as the same men of faith deny them a safe abortion or force them into unsafe abortions? What is this hypocrisy by representatives of God? As Katha Pollitt would ask: Why should a paedophilia-ridden, paedophilia-hiding, child-abusing church be allowed to write or renegotiate already-agreed laws controlling women’s rights? What gives a church in which celibacy is equated with holiness, in which males have virtually all the power, the right to a place at the table where laws are made about women’s bodies? And when shall we see the paedophile priests or child molesters and their enablers and protectors held accountable under the law? What moral authority have such people to talk about conception or life for that matter?

We call on the right-minded and democratic men of the church to give Kenyans the space to get an improved constitution that will help deal with the many ills confronting them. We are fully in support of the reasoning of the retired Anglican Church of Kenya Archbishop David Gitari and we urge them to think in similar ways. Like him, we doubt the ability of the church to rally Kenyans against the draft constitution. Dr Gitari also cautioned church leaders on the issue of abortion, stressing that the church does not know everything and should always give the benefit of doubt to the doctor and the woman.

We believe that religious bodies have an important place to play in the democratic space. They continue to say very little about greater ills such as the death of mothers through abortion and rape and other forms of sexual violence. They risk being left behind in the dark ages if they do not honestly and urgently face up to their modern responsibilities. Is it too much to ask them before God to support women’s rights for a just and equitable life here on earth? This matter goes far deeper into the heart of the nature of the church and women’s place in it. We are your mothers, sisters and may even be your daughters – we are also people of faith.

BROUGHT TO YOU BY PAMBAZUKA NEWS

* Beth Maina is a professor of international health living in Sweden.
* Cenya Ciyendi is a writer living in London.
* This article is for and on behalf of Kenya Women in the Diaspora Network (KWID).
* Please send comments to [email protected] or comment online at Pambazuka News.