Fw: [YP_Ke] article 26,2(6) and 43 (1)
Anthony Gitonga
Regards
Anthony
From: Sinapi Investments <sinapi...@gmail.com>
To: youngprofe...@googlegroups.com
Sent: Fri, 14 May, 2010 8:09:15
Subject: Re: [YP_Ke] article 26,2(6) and 43 (1)
Simple question to you: what would Muslims lose by NOT having the Khadhis courts in the Constitution? Is it not provided for by an Act of Parliament? Why bring the domain of private law(religion) into the constitution which is a domain of public law? Why put one religion in the supreme law of the land yet the document is very clear that there shall be no state religion. Why elevate ONLY one religion, the followers of which claim to be a MINORITY in the supreme law. I fear that you may either not have an understanding of what a constitution is, or you haven't quite grasped what the leaders are saying. If you did, you would not rail against them and support a constitution that obviously promotes inequality. Do you realize that it excludes Muslims from the Bill of rights? If we can allow such an inequality to pass, are we people of integrity? Why should we want to oppress our fellow citizens just because they want it? And pose to ask yourself, why would anyone want to exclude themselves from such good rights? Doesn't that seem suspect to you? What religion is this that contradicts what we are saying is good in the document?
On Thu, May 13, 2010 at 5:34 PM, Anne Mbugua <anmb...@musyimilaw.com> wrote:
--These 3 articles clearly show that there is very minor protection of the right to life of a child in the mother’s womb. Performance of the abortion which in every sense is a surgery by a paramedics as opposed to Registered Medical Practitioner could also put our women and girls at risk. What if complications arose?
I don’t think the definition of life beginning at conception will act as a safety net. The mischief in article 2 (4) and the express power to legislate other grounds for abortion under the words….. if permitted by any other written law’ waters down the effects of article 2. (2)
Have you ever wondered what is ‘any other written law’ in the last words of article 26 (4)…. If permitted by any other written law. Why not specifically state …if provided by an Act of Parliament. For example, the 2005 referendum draft voted out in the last referendum stated in article 35 (3)’ abortion is not permitted except as may be provided for by an act of parliament. Are there other written laws which could permit abortion? I submit there are!
DOES THE DRAFT MAKE IT POSSIBLE TO HAVE ABOTION THROUGH INTERNATIONAL TREITIES?
Lets look at Article 2 (5) and (6)
Article 2 states
1. This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.
2. No person may claim or exercise State authority except as authorised under this Constitution.
3. The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.
4. Any law, including customary law that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.
5. The general rules of international law shall form part of the law of Kenya.
6. Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.
The highlighted articles unlike (4) i.e. Customary law, are not qualified on grounds on inconsistency. We will embrace the rules of international law and treaty and conventions fully.
PAST DRAFTS
Sub article (5) and (6) were not in the previous drafts namely
(1) The Harmonized Draft (17th November 2009);
(2) The Revised Harmonized draft forwarded to the PSC (8th January 2010)
(3) The PSC Draft (2nd February 2010)
PARLIAMENTS LEGISLATIVE ROLE
Each of the above former drafts contained a provision that Stated that one of the roles of the National Assembly was to "consider
And approve treaties and international agreements". This was set out in articles 124, 119 and 88 of the respective drafts. The 2005 Wako draft had Similar provisions. However The draft heading to the referendum does not have this provision. The parliamentary duty has been taken away.
RATIFICATION WITHOUT REPRESENTATION?
Since the draft does not confer the duty to ratify treaties on Parliament, is the president the one to do so under his residual powers? An not sure who will ratify. Would that deny the legislature its law making role? Yes Kenya as a player in the global field need to ratify some conventions or treaties? However, should ratification be without representation which is usually through a legislative process? What if you have an objection to a treaty wholly or in part? How do you raise your objection?
WIDENING DEFINATION OF HUMAN RIGHTS
Could this executive ratification make it easier to embrace laws promoting sexual minority rights and reproductive rights?
I have in mind The Hague Marriage Convention which recognizes Gay rights and The Maputo Protocol which recognizes right to legal abortion as a reproductive health right. Reproductive health rights began to develop a subset of Human rights at the UN 1968 International conference on Human rights. These rights include the right to legal or safe abortion. Kenya is a signatory to the Maputo Protocol. Kenya put a reservation on issue of marriage and not Reproductive Health. If we ratified it tomorrow, we will have embraced abortion on demand. In a number of African countries, there has been serious objection to ratification of this protocol which has positive gains on the rights of women but unfortunately includes right to legal and safe abortion.
In many countries ratification process involves senate/parliament. indeed even very advanced countries are not very eager to embrace international treaties/conventions and protocols.Why did we remove the provisions involving parliament? To make ratification easier?
PROTECTION OF THE RIGHTS UNDER TRIETIES IS PROVIDED FOR BY THE DRAFT
Under Article 59 Kenya National Human Rights and Equality Commission is mandated to ensure Government compliance with the treaties. It reads;
(1) There is established the Kenya National Human Rights and Equality Commission.
(2) The functions of the Commission are;
(g) act as the principal organ of the State in ensuring compliance with obligations under treaties and conventions relating to human rights;
REPRODUCTIVE HEALTH RIGHTS
THE DRAFT GIVES EMPHASIS TO REPRODUCTIVE HEALTH RIGHTS
article 43 (1)
Economic and social rights
(1) Every person has the right—
(a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;
Is prenatal/post natal care and family planning facilities not part of health care facilities which everybody is entitled to under the article?
Why the emphases on reproductive health care .World Heath organization defines heath as ‘the state of complete Physical, Mental and Social well-being not merely the absence of disease or infirmity. Article 26 (4) states that abortion will be permitted where the life or health of mother is in danger. PSC draft provided for abortion where the life of the mother is in danger. Why did they amend to include health? The intention is clear;
v Abortion can be legally procured for physical, mental and social reasons
v The bill of rights has included reproductive health as a basic human right.
v Ratification of Treaties and conventions without a local legislative process can incorporate laws that promote some “rights”recognized by others but not embraced by many Kenyans ere as part of Kenyan Law. No wonder the clause read…. If permitted by any other written law not an act of parliament.
v If it does not come through ratified treaties, it will come by a statute of parliament under article 26
Has anyone ever seen the Draft Reproductive Health Bill? If you have, it should be clear to you that the debate is not about termination of pregnancy where the life of the mother is in danger. The later has been going on as medicine should always intervene to save life. The church has never objected to this. The current debate is clearly on abortion on demand. Bible says in Deutronomy 28 that if we obey the Lord our God, the fruit of our Womb/body shall be blessed! Shall we turn our Wombs to a grave/butchery for our own flesh and blood?
Anne Mbugua
Partner
From: kennedy waweru [mailto:kenn...@yahoo.com]
Sent: 12 May 2010 07:51
To: youngprofe...@googlegroups.com
Subject: [YP_Ke] Is our constitution really Christian
Time and again the argument has been that since the current and the draft constitution are largely judeo Christian then we should allow Muslims to have their kadhi courts.
My challenge to those who say this is, list those clauses in the constitution that are based on Christian principles and contravene Islam.
Kind Regards,
Kennedy
Event: LYP Mombasa Meeting
Date: Wednesday, 12th May 2010
Venue: Summerlink Hotel,
Time: 5:30pm To 7:30pm
Guest Speaker: Mrs Nancy Karigithu, The Kenya Maritime Authority Director General
Topic: Opportunities In The Maritime Sector
Register NOW By Contacting Josephine Kamanthe, 0723 736 086 0723 736 086 , joseka...@gmail.com
All Are Invited. Tag Your Friends Along!!
--
A package of 1,000 E-Books at Ksh. 6,000 See list here http://tiny.cc/d0mhp
Audio Books at Ksh. 1,000 each. See list here http://tiny.cc/a4ukr
FITNESS/DANCE DVDS @ KSH. 1, 000: Jillian Michaels(30 Day Shred, Banish Fat Boost Metabolism) , Fat Burning For Dummies, Yoga For Weight Loss, Yoga & You, Advanced Taebo, Ultimate Kicking Drills, Zumba Fitness, Shotokan Karate Katas, Target Focus Training, Human Weapon, Muscle Building Training System, Learn To Dance (Salsa, Bachata)
AUDIO COURSES @ KSH. 1, 000: (French, Japanese, Russian, Spanish) In 3 Months, Collins Easy Learning (French, Italian, Japanese, Spanish), Learn in Your Car (French) by Henry N. Raymond, Learn to Speak and Understand French with Pimsleur, Fast & Easy Spanish, Learn & Speak German
MUSIC DVDs @ Ksh 1,000 (Guitar, Piano) Instruction by Leonard Hall.
Robert Kiyosaki Cashflow 101 and 202 E-Game
FOR ALL THE ABOVE, email fra...@safarisoftsolutions.com or Call 0721 663 208 0721 663 208
--
A package of 1,000 E-Books at Ksh. 6,000 See list here http://tiny.cc/d0mhp
Audio Books at Ksh. 1,000 each. See list here http://tiny.cc/a4ukr
FITNESS/DANCE DVDS @ KSH. 1, 000: Jillian Michaels(30 Day Shred, Banish Fat Boost Metabolism) , Fat Burning For Dummies, Yoga For Weight Loss, Yoga & You, Advanced Taebo, Ultimate Kicking Drills, Zumba Fitness, Shotokan Karate Katas, Target Focus Training, Human Weapon, Muscle Building Training System, Learn To Dance (Salsa, Bachata)
AUDIO COURSES @ KSH. 1, 000: (French, Japanese, Russian, Spanish) In 3 Months, Collins Easy Learning (French, Italian, Japanese, Spanish), Learn in Your Car (French) by Henry N. Raymond, Learn to Speak and Understand French with Pimsleur, Fast & Easy Spanish, Learn & Speak German
MUSIC DVDs @ Ksh 1,000 (Guitar, Piano) Instruction by Leonard Hall.
Robert Kiyosaki Cashflow 101 and 202 E-Game
FOR ALL THE ABOVE, email fra...@safarisoftsolutions.com or Call 0721 663 208 0721 663 208
A package of 1,000 E-Books at Ksh. 6,000 See list here http://tiny.cc/d0mhp
Audio Books at Ksh. 1,000 each. See list here http://tiny.cc/a4ukr
FITNESS/DANCE DVDS @ KSH. 1, 000: Jillian Michaels(30 Day Shred, Banish Fat Boost Metabolism) , Fat Burning For Dummies, Yoga For Weight Loss, Yoga & You, Advanced Taebo, Ultimate Kicking Drills, Zumba Fitness, Shotokan Karate Katas, Target Focus Training, Human Weapon, Muscle Building Training System, Learn To Dance (Salsa, Bachata)
AUDIO COURSES @ KSH. 1, 000: (French, Japanese, Russian, Spanish) In 3 Months, Collins Easy Learning (French, Italian, Japanese, Spanish), Learn in Your Car (French) by Henry N. Raymond, Learn to Speak and Understand French with Pimsleur, Fast & Easy Spanish, Learn & Speak German
MUSIC DVDs @ Ksh 1,000 (Guitar, Piano) Instruction by Leonard Hall.
Robert Kiyosaki Cashflow 101 and 202 E-Game
FOR ALL THE ABOVE, email fra...@safarisoftsolutions.com or Call 0721 663 208
You received this message because you are subscribed to the Google Groups "Dunamic Sierra" group.
To post to this group, send email to dmcs...@googlegroups.com.
To unsubscribe from this group, send email to dmcsierra+...@googlegroups.com.
For more options, visit this group at http://groups.google.com/group/dmcsierra?hl=en.