[kictanet] my concerns

Thu Jul 29 13:22:35 EAT 2010

Anne, 
I think the proposed Constitution, on any issue of particular interest to any 
Kenyan, can provoke concern. My issue for example is Executive/Presidential 
control. I note for example that although freedom of information is provided for 
as a right, no legislation has been prescribed. As I mentioned earlier, the 
President will still have a free hand with the police. However, when I step back 
and look at the broad thrust of the document particularly on the separation of 
powers in the arms of government (and the independent Commissions), I conclude 
that overall the President will have to be a lot more accountable than he is 
today. So I prefer not to look over, around, under, within, between and behind 
clauses to confirm my fears of dictatorship.

On homosexual relationships I think the Committee of Experts was clear that they 
cannot legislate matters where there is wide disagreement in Kenyan society. 
Although the homosexual community and rights advocates may have tried and will 
try in the future to legalise gay marriages, the Committee unequivocally took 
the position of the majority. However, the Committee is clear that no one should 
be discriminated against or persecuted for any reason - including homosexuality. 
Homosexuals are human beings too and we do not want to see them bloodied by 
extremists and other fundamentalist people.

Please note, as with abortion, no society can legislate against these things. 
When one has an abortion or keeps a same sex partner, it does not infringe on 
the rights of anyone else. So the choice is a private matter that laws for or 
against can do little to change. 

As a Christian, I will be happy to see more more faith, prayer and love and less 
activism in our Christian community. Those are the primary tools for us in 
creating the societies we seek. The law however important can never be our 
primary tool. We should also be equally outraged by extreme poverty, inequality 
and corruption that the proposed Constitution is trying to eliminate - I find 
that we Christians are overly interested in sexual sins more than other sins.

regards,
Wamuyu

________________________________
From: Anne Mbugua <anmbugua at musyimilaw.com>
To: kikuyusforchange at googlegroups.com
Sent: Wed, 28 July, 2010 18:55:32
Subject: my concerns

I have been very burdened by the gay rights debate. Can somebody help? Here are 
my observations.

Article 45 – The Family

	* Kenyans had asked during the constitution-making process that there is a 
clear prohibition of same sex marriages, as a way to defend our families. 

	* Both the Bomas and Wako drafts therefore had a clear provision stating, “A 
PERSON SHALL NOT MARRY ANOTHER PERSON OF THE SAME SEX.” Why was this lost in the 
Harmonization process? 

	*  PCKstates in Article 45 (2) that; “every person has the right to marry a 
person of the opposite sex, based on the free consent of the parties.” It just 
declaresa right but does not bar other unions. So it is true that gays as of 
today cannot marry. But can they have unions awaiting declaration of rights by 
the court or embracement of the same through treaties and conventions?

	* There is also no definition of MARRIAGE.

	* Article 19 (3)  states that the rights and fundamental freedoms in the bill 
of rights do not exclude other rights and freedoms not in the bill of rightsbut 
recognized or conferred by law except to the extent that they are inconsistent 
with this chapter.  That means we can declare or acknowledge other RIGHTS.

§        Would sexual minorities rights be inconsistent? In my view NO! Article 
27 forbids discrimination on ANY GROUND. So is sexual orientation! Sub article 5 
states that a person shall not discriminate on the grounds specified or 
contemplated in clause (4).  The current constitution states all the ground. PCK 
has included all grounds! This is a very fundamental departure. I agree that 
nobody should be discriminated on any ground. I question is, do Kenyans 
understand that this will capture all grounds including sexual orientation? If 
they did and still voted for it, that is ok. 

§        In article 20 the courts have been empowered to develop the law to the 
extent that it does not give effects to a right or fundamental freedom. Same 
article states that ininterpreting the Bill of Rights, a court or tribunal or 
other authority shall promote the values that underlie an open and democratic 
society… Do Kenyans know what is an open society?

	* Article 56 mandates the states to put in place affirmative action programs to 
ensure that minorities and marginalized groups develop their cultural values, 
language and PRACTICES. Minority groups are not defined. However, marginalized 
group is defined in article 260 page 171 to mean a group of people who, because 
of laws and practices before, on, or after the effective date, were or are 
disadvantaged by discrimination on one or more of the grounds in Article 27(4) 
. Article 27 (4) forbids discrimination of a person on Any Ground including 
those stated and those contemplated.  The ones stated in this article are not 
all inclusive. Among the relief the court can give in Article 23 isDECLARATION 
OF RIGHTS.

	* The manner, in which Article 45 has been worded, opens a loophole through 
which theCourts could interpret the constitution in light of international 
practice, and recognize sexual minority’s rights. Note that article 27 (1) 
states that EVERY PERSON IS EQUAL BEFORE THE LAW AND HAS THE RIGHT TO EQUAL 
PROTECTION AND EQUAL BENEFITBEFORE THE LAW. Exact clause used in South African 
case of MINISTER OF HOME AFFAIRS VS FOURIEthrough which the gays right to marry 
was pronounced. 

How about international treaties and conventions. Are there some that as of 
today recognize the gay rights?  Have you read the Hague Marriage Convention? 
What treaties will be there after august 2010? How about in 2025? 2040 etc. 
Would we want all those future ones ratified without representationto become 
part of the law of Kenya UNDER THIS CONSTITIUTION?

The family clause falls under the protected clauses. If amended is to be done, 
it must go through a referendum. Note that amendments under article 257 can only 
be after 2012 when counties are constituted.
Let’s discuss!

Anne Mbugua
Partner

________________________________

________________________________
-- 
RE: LYP MOMBASA MEETING: 23RD JUNE 2010. GUEST SPEAKER, DR EUNICE W. GATITHU, 
PROVINCIAL PHARMACIST COAST PROVINCE
************************************************************************************************

Good morning members,

We will have our LYP Professional Forum Tomorrow, Wednesday 23rd June 2010 at 
Summer-Link Hotel. 

Time is 5:30pm to 7:30pm

During the meeting, we will have Dr Eunice W. Gatithu talking to us about 
general health and specifically HIV and Aids pandemic.

Your health is your concern, therefore see you in the meeting.

-- 
Best Regards
Josephine Kamanthe
Club Admin
0723 736 086
-- 
MANY JOB VACANCIES: http://bit.ly/bROydQ

TECHMTAA BLOG: http://bit.ly/cmRFZR

To unsubscribe from this group, Email mlalahoi+unsubscribe at googlegroups.com

TO ADVERTISE HERE PLEASE M-PESA KSH 1,000 for each advert or Ksh 5,000 for 
monthly subscription to +254 726 034 530

-- 
MANY JOB VACANCIES: http://bit.ly/bROydQ

TECHMTAA BLOG: http://bit.ly/cmRFZR

To unsubscribe from this group, Email mlalahoi+unsubscribe at googlegroups.com

TO ADVERTISE HERE PLEASE M-PESA KSH 1,000 for each advert or Ksh 5,000 for monthly subscription to +254 726 034 530
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://lists.kictanet.or.ke/pipermail/kictanet/attachments/20100729/74c7f72b/attachment.htm>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.jpg
Type: image/jpeg
Size: 22196 bytes
Desc: not available
URL: <https://lists.kictanet.or.ke/pipermail/kictanet/attachments/20100729/74c7f72b/attachment.jpg>