[kictanet] my concerns
Agosta Liko
agostal at gmail.com
Fri Jul 30 10:05:04 EAT 2010
Anne
We vote on 4th ... with any changes after that ...
Any major issues - including what I see as a replay of the "culture wars" (
http://en.wikipedia.org/wiki/Culture_war ) can be tabled after that ...
:)
On Thu, Jul 29, 2010 at 1:22 PM, Wamuyu Gatheru <wamuyulearn at yahoo.co.uk>wrote:
> 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?
>
>
>
> - PCK states 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 declares a 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 rights but 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 in interpreting 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 is DECLARATION OF
> RIGHTS.
>
>
>
> - The manner, in which Article 45 has been worded, opens a loophole
> through which the Courts 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 BENEFIT BEFORE 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
> representation to 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
>
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