[kictanet] my concerns

Fri Jul 30 10:09:16 EAT 2010

And whilst I appreciate Wamuyu Gatheru's level-headed position - last time I
checked, homosexuality wasn't an ICT issue, right?

Happy Furahiday to all of you,
Andrea

On 30 July 2010 10:05, Agosta Liko <agostal at gmail.com> wrote:

> 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
>>    FOURIE through 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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>>
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