Constitution: Catholics fighting losing battle

The Catholic Church in Kenya is fighting a losing battle. It has taken the most uncompromising stand of continuing to oppose the new Constitution of Kenya even when millions of Kenyans have ratified it. The Church hopes that something can still be done to amend the Constitution before its promulgation on the August 27. But the Church knows very well it is building castles in the air.

In a statement by 25 Bishops issued on July 28 at the peak of the campaign for and against the Proposed Constitution the Catholic Church clearly said: “We cannot place our hopes on the fact that the document can be amended after the referendum. Looking at the proposed draft however, amending this document will be an enormous task.”

To try and convince as many Catholics as possible to vote “NO” the Bishops explained to the believers about popular amendment which, they acknowledged, would require one million signatures of registered voters. They explained in their own press statement that amendment bill must be approved by the majority of 47 counties. The Bishop’s statement continued to explain to the believers that after the approval by the majority of 47 counties the amendment would then be tabled in the two houses of parliament before being submitted to the people for another referendum.

After this explanation the Bishops then concluded: “This process cannot take place before counties are in existence, and they will only exist in this country after the 2012 general elections.” So when the Bishops make so much noise now and continue to demand amendments well after the ratification of the Proposed Constitution they know very well that all that they can achieve is cheap publicity which will not change the will of the people.

Yet the Catholic Church in Kenya is extremely powerful. It has millions of converts who are scattered all over the country. The Church’s contribution to the country’s educational and heath matters has earned it respect everywhere even among non Catholics. Catholic universities, schools, like their hospitals in many parts of the country, are full of students and patients of the Muslim and other religious faiths. The official word from the Catholic Church carries a lot of weight in Government circles and many other institutions. It is therefore most amazing that the command from Kenya Episcopal Conference to everyone who could hear them to reject the Proposed Constitution was overwhelmingly rejected itself. Among those who rejected it are millions of Catholic believers.

Because of the continued complaints by the country’s most powerful religious institution a lot of Kenyans will probably look at the nature of the demands by the Catholic Church to see if they merit any consideration. In the statement of July 28 the Bishop said: “Brothers and Sisters, we have raised our concerns about Article 26(4) which by other written laws opens the gates to abortion on demand. The life of a person begins at conception, and unborn babies are therefore human beings, and have a right to life and this document declares that in essence, legislators and “health professionals” should have a free hand in ending the lives of these human beings.”

The Bishops must be very eager to know why their passionate appeal to their own followers was rejected with such a forceful disgust. The rejection by the Catholic flock of the demand from their own Bishops to throw the Proposed Constitution into the dustbin of history has revealed for the first time that Kenyans cannot be led blindly by the use of ecclesiastic powers. Whereas the respect for the Catholic Church is unquestionable everywhere in the country, its attempt to mislead the people, for whatever reasons, is greeted with hostility if the people suspect the Church is misleading them.

In this particular case the use of the words “open gates to abortion on demand” by the Bishops did go down very well with the people who must have read Article 26 (4) for themselves. That specific Article in the new Constitution says: “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.” After evaluating the truth in their Bishops’ statement and comparing it with what is actually provided for in the Constitution, Catholic voters decided to back the Constitution.

Rather than taking a confrontational and adversarial stand against the Government and demanding an immediate amendment to the new Constitution , the Catholic Bishops would do very well to try and convince their own flock, which seems to be against the firm stand the religious leaders are taking, to see their point of view. After all it is the ordinary people within the Catholic Church who are faced with the problem of life threatening pregnancies which require urgent medical attention. They still need a lot of persuasion to put what their religious leaders say into practice.

The other aspect of the new Constitution which disturbs the Catholic Bishops concerns the Kadhi courts. The Bishops say: “We have also raised other areas of concern that this constitution fails to safeguard. These include the EQUALITY of all persons and creeds under the law, which the entrenching of Kadhi’s courts in the constitution denies. We have no problem with our Muslim brothers and sisters exercising their religious freedom. All we wish is that it be done in equity, by pursuing what has been done the world over, through an act of parliament, and for this we made specific proposals to the Committee of Experts.”

The Catholic Church must have seriously disturbed its flock when it said the new Constitution did not safeguard “equality of all persons and creeds under the law”. To find out whether their Bishops were indeed telling the truth the Catholic believers and voters must have looked at Article 27 which deals with Equality and freedom from discrimination. To their amazement the Catholic voters must have been shocked when they discovered the new Constitution says that every person is equal before the law and has the right to equal protection and equal benefit of the law.

The Catholics voters must have been even more shocked when they found out the new Constitution says that equality includes the full and equal enjoyment of all rights and fundamental freedoms giving women and men the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. This realization must have been a major contributing factor to their rejection of the call from their Bishops and instead strengthened their determination to ratify the proposed Constitution which is now sure to be the supreme law of the land.

When the Catholic Church tells its flock that the inclusion of Kadhi courts in the Constitution discriminates against Christians the believers must be wondering who is telling the truth because the new Constitution clearly says the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy,
marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

As a major institution that runs universities, schools and hospitals throughout the country the Catholic Church must really be aware of the fact that Muslims in Kenya have been marginalized for a very long time. People with Islamic names have been ejected in many Christian schools.

Recognizing the Kadhi courts through an act of Parliament, as the Church suggests, is a sure way of repealing that law at the first available opportunity, given the fact the very word Muslim creates a stigmatized situation that makes some true Kenyans with Muslim names being segregated from various aspects of society. The only way to protect the Kadhi court is to make them part of the Judiciary in the Constitution. They are, after all, very subordinate courts that deal only with personal matters of marriage, divorce and inheritance.

Refusing the Muslims the right to have their own Kadhi courts would be discriminating against them. The new Constitution says a person shall not discriminate directly or indirectly against another person on any of the grounds specified above. The Catholic Church must be very worried about the plans of the new Constitution to take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.

This means Catholic schools and universities cannot deny Muslims and other Christians any opportunity to study or teach. During the campaign a story was published in one of the local dailies exposing the dismissal of a lecturer at the Catholic University for threatening to vote “YES” for the proposed Constitution. Such behaviour will never be tolerated by the new Constitution.

Catholic voters must have wondered whether their Church was telling the truth when it claimed the inclusion of the Kadhi courts in the Constitution amounted to “elevation of one religious over another”. This allegation was not supported by the new Constitution which clearly says in Article 32 on Freedom of Conscience, Religion, beliefs and Opinion that every person has the right to freedom of conscience, religion, thought, belief and opinion. It also says that every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship.

When the Catholic voters realized that the new Constitution says a person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion they realized that their religion, like all others, was protected by the new Constitution which also says a person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion. One of the reasons the Proposed Constitution was accepted by such a big number of voters is the fact that millions of Catholic voters supported it. Catholic Bishops still opposing the new Constitution are fighting a losing battle.