Vote on US-backed Kenyan constitution provides referendum on abortion and sharia

Vote on US-backed Kenyan constitution provides referendum on abortion and sharia

By Harlan Brown
Aug. 4, 2010

Kenyans are voting today on a proposed new constitution. The new constitution provides a number of changes from the old. Two of the more controversial provisions of the new constitution involve the legalization of abortion and the imposition of Islamic sharia law.

Legalizing abortion

The current Kenyan constitution (Section 71) guarantees the right to life:

No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Kenya of which he has been convicted.
The proposed Kenyan constitution (Section 26) has this to say about the right to life:
(1) Every person has the right to life.
(2) The life of a person begins at conception.
(3) A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.
(4) 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.

In the United States, the U.S. Supreme Court decision Roe v. Wade (1973) requires that the health of the mother be taken into consideration. The companion decision Doe v. Bolton interprets the mother's health so broadly that a loophole exists. As noted on Page 32 of Politically Correct Death (Baker Books, 1998) by Francis J. Beckwith regarding restrictions that allow an exception for the mother's health:

But this restriction is a restriction in name only. For the Supreme Court so broadly defined health in Roe's companion decision, Doe v. Bolton (1973), that the current law in nearly every state allows for abortion on demand. In Bolton the court ruled that health must be taken in its broadest possible medical context, and must be defined "in light of all factors—physical, emotional, psychological, familial, and the woman's age—relevant to the well-being of the patient. All these factors relate to health." Since all pregnancies have consequences for a woman's emotional and family situation, the court's health provision has the practical effect of legalizing abortion up until the time of birth if a woman can convince her physician that she needs the abortion to preserve her emotional health. This is why the U.S. Senate Judiciary Committee, after much critical evaluation of the current law in light of the Court's opinions, confirmed this interpretation when it concluded that "no significant legal barriers of any kind whatsoever exist today in the United States for a woman to obtain an abortion for any reason during any stage of her pregnancy."*
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*Report, Committee on the Judiciary, U.S. Senate, on Senate Resolution 3, 98th Congress, 98-149, 7 June 1983, 6.

Imposing sharia law

Another controversial provision in the proposed Kenyan constitution is the imposition of sharia law. The proposed constitution requires Parliament to establish Kadhis' courts. Instead of one judicature based on the ideal of equal justice for all, the proposed constitution puts persons who profess the Muslim religion under the authority of Kadhis' courts in matters relating to personal status, marriage, divorce, and inheritance.

The push for sharia is not new. When Raila Odinga was campaigning to become President of Kenya in the December 2007 election, he allegedly signed a memorandum of understanding with Muslim leaders in Kenya supporting sharia law. A copy of the memorandum was obtained by Christians in Odinga's political party who left the party when they saw the memo and realized they had been betrayed. To see a copy of the memorandum of understanding, click here: Memorandum of Understanding Between Hon. Raila Amolo Odinga Representing the Orange Demoocratic Movement (ODM) and National Muslim Leaders Forum (NAMLEF)

Among other things, the MOU stated that Odinga would:

  • "Ensure that the Coast Province shall henceforth be known as JIMBO LA PWANI and shall have full autonomy in Governance in all matters apart from National Defense and International Accreditation. In addition, while freedom of worship will be upheld at the JIMBO LA PWANI, the Council of Islamic leaders shall be permitted to have an oversight role to monitor activities of ALL other religions and any applications for religious activities and institutions will require their approval. They shall have the right to deny approval to cults and other evil practices."
  • "Within 6 months re-write the Constitution of Kenya to recognize Shariah as the only true law sanctioned by the Holy Quran for Muslim declared regions."
  • "No Muslim residing in Kenya whether a citizen, visitor or relative of any of the above shall be subjected to any process involving the laws of a foreign country and in particular any Muslim arrested for or suspected of Terrorism or any other International crime shall only be tried within the boarders [sic] of Kenya and shall be granted a competent lawyer of his/her choice at the expense of the Government."
  • "Within 1 year facilitate the establishment of a Shariah court in every Kenyan divisional headquarters."
  • "Popularize Islam, the only true religion, in the Coast and North Eastern Regions by ordering every primary school in Kenya in the regions to conduct daily Madrassa classes."
  • "Impose a total ban on open-air gospel crusades by worshippers of the cross in the Coast and North Eastern regions."
  • "Outlaw gospel programs (preaching, purported faith healing, etc) on KBC, the National Broadcaster."

When Odinga lost the Presidential election in 2007, he charged that it was "rigged," and his supporters rioted, killing more than a thousand Christians and leaving hundreds of thousands homeless. To quell the bloodshed, Odinga was appointed Prime Minister of Kenya, a post that was recreated in the aftermath of the election crisis.

U.S. involvement

In June 2010, U.S. Vice President Joseph Biden traveled to Kenya and publicly endorsed the proposed constitution on behalf of himself and Barack Obama. In lobbying for the constitutional revision, he promised that passage of the new constitution would "allow money to flow." To hear Biden in his own words, click the following link: "US VP endorses proposed constitution."

In October 2006 Barack Obama traveled to Kenya in support of Odinga's candidacy. To view a video of Odinga welcoming Obama to Kenya, Obama and Odinga on the campaign trail together, and Obama speaking out against Odinga's political opponent Mwai Kibaki, the incumbent, click the following link: "Obama and Odinga Campaign in Kenya."

The issue of sharia law and freedom of religion has also arisen with regard to appointments by Barack Obama. In 2009 Obama appointed pro-sharia Harold Koh to be the State Department's top lawyer. See "Obama's Most Perilous Legal Pick."

Later that year Obama appointed David Hamilton to the Seventh Circuit Court of Appeals. Hamilton had issued a decision banning prayers in the name of Jesus in the Indiana legislature but had ruled that prayers to Allah were permissible. The decision was overturned by the Seventh Circuit Court of Appeals on which Hamilton now sits.

Elena Kagan

Currently, Obama's selection of Elena Kagan for Supreme Court justice is under fire for her alleged bias toward abortion and sharia. While dean of the Harvard Law School, she campaigned against allowing U.S. military recruiters on campus, citing what she saw as "the evils of Don't Ask Don't Tell."

Around the same time that Dean Kagan was campaigning to exclude military recruiters, citing what she saw as "the evils of Don't Ask Don't Tell," Harvard University accepted $20 million from a member of the Saudi royal family to establish a center for Islamic studies and sharia law. She did not oppose the center for Islamic studies even though Islam in Saudi Arabia is strongly opposed to homosexuality. A State Department report concerning Saudi Arabia and the sharia law concept noted, "Under sharia as interpreted by Saudi Arabia, sexual activity by two persons of the same gender is punished by death or flogging."

The following links pertain to Kagan, abortion, and sharia:

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