Is Technology used to Subordinate Socially Conservative Constitutions in Africa? The Case of Kenya’s Proposed Legislation on Assisted Reproductive Technology

Authors Duncan Ojwang, Agnes Meroka, Francis Situma

ISSN: 2521-2613
Affiliations: Lecturer of International Law and International Human Rights Law; Lecturer of Human Rights and Women in the Legal Process; Lecturer of International Law
Source: Africa Nazarene University Law Journal, 2016, Issue 1, p. 1 – 26


When it comes to matters of technology, perhaps African countries should adopt the famous principle in disability law: ‘Nothing about us without us.’ This is because as science and technology advance at a breakneck pace, it can be used to impose globalisation, even by subordinating a country’s sacred document such as a constitution. What is at stake in this debate is whether a parallel exists between the use of law as a tool of colonisation and hegemony of the western powers and the current triumph of technology to subvert African municipal law, culture, ethics and values. Kenya is a clear example of this because, unlike most African countries, it has experienced higher levels of western influence. This article evaluates the case of the Reproductive Health Care Bill, 2014 and the Assisted Reproductive Technology Bill, 2016 to illustrate how technology is sometimes used to substitute the constitutions of some African countries that are socially conservative so that they conform to liberal ideas on critical areas like marriage, family, abortion, culture and reproductive rights. The preamble of the Kenyan Constitution, just like the Banjul Charter (also known as the African Charter on Human and Peoples’ Rights), sought to balance the place of an individual, family and society. This article will review the following relevant provisions of the Constitution of Kenya, 2010: Article 43(1)(a) on the right to reproductive healthcare, Article 26 on the right to life, Article 45 on the right to family, Article 31 on the right to privacy and dignity, Article 27 on the right to equality and freedom from discrimination, Article 44 on the right to culture and Article 53 on children’s rights. Understanding in vitro fertilisation (IVF) or gestational surrogacy through the Kenyan Constitution can contribute to avoiding the danger of the collapse of African society and families. Understanding technology through the Kenyan Constitution will assist the society not to forget that their values and ethics must be used to regulate the use of technology.