Table of Contents

ISSUE FROM THE QUESTION....................................................................................................2

LEGITIMACY OF THE USE OF CONTRACEPTIVE IN KENYA..........................................2-3
ARGUMENTS ON SUPPORT OF EXEMPTING THE PHARMACIST FROM
DISCHARGING HER OBLIGATION........................................................................................3-4
WHETHER IT IS PROPER TO DISOBEY SUCH LAWS.........................................................4
LEGAL RESPONSIBILITY....................................................................................................4
THE PHARMACIST SHOULD BE COMPELLED TO DO HER DUTY IN RECOGNISANCE
OF THE RIGHT OF HER CLIENT UNDER ARTICLE 43........................................................4-6
CONCLUSION............................................................................................................................6-7
LIMITING THE RIGHT BY LAW..........................................................................................6

1 | Page
If a Catholic Pharmacist refuses to dispense birth control, and she is the only pharmacist in
Nairobi town Kenyatta National Hospital. Should she be compelled to give the contraceptive to
this woman in recognition of her constitutional right to health under Article 43-Economic and
Social rights of Kenya constitution? Should this pharmacist be exempted from discharging her
obligation?

ISSUE FROM THE QUESTION

It is my view that the issue facing us here is not contraception but conscience and the limitsif
anyof its protection.1

LEGITIMACY OF THE USE OF CONTRACEPTIVE IN KENYA

It is not clear in statute whether Kenya legitimate the use of contraceptive which is one way of
family planning, however in case laws as well as in practice, one can conclude that use of
contraceptives is allowed and encouraged by the government. In the case of AAA v Registered
Trustees (Aga Khan University Hospital, Nairobi) [2015] eKLR, the court held that Family
planning is now widely accepted in Kenya, and hospitals and doctors regularly offer it. In fact in
a research done by Center for Reproductive rights Kenya, the result shows that Contraception is
used by 25.9% of all women, including 32.7% of married women. While less than 1% of women
surveyed named condoms as their method of birth control, nearly 7% of married men and nearly
12% of all men said they currently use condoms as a birth-control method.37.Even the world
Health organization recommended the need for African Nations to use contraceptives because it
has the potential to reduce poverty and hunger and avert 32% of all maternal deaths and nearly
10% of childhood deaths2. It would also contribute substantially to womens empowerment,
achievement of universal primary schooling, and long-term environmental sustainability.
There had been dissenting views in relation to the question with the first group basing their
arguments on Article 43 and second group on article 32 of the constitution respectively. This
brings conflict between two constitutional rights. Lenaola J had stated in relation to conflicting
constitution rights that I am a live to the fact that the issues before me are heavy and I must
approach them delicately for obvious reasons. I say so because I am called upon to interpret
several provisions of the bill of rights and while knowing very well that all human rights are of
equal importance and share equal status. In case such as before me, where the conflicting rights
are of equal importance, I must strike a fair balance between them. I am particularly aware that
the maxim, sic utere tuo ut alienum non laedas (exercise your own rights so as not to harm other
persons) is a useful formula for resolving conflicts of rights in a constitutional context like the

1 Santa University, 'Conscientious Refusal - Resources - Bioethics - Focus Areas -

Markkula Center For Applied Ethics - Santa Clara University' (Scu.edu, 2016)
<https://www.scu.edu/ethics/focus-

2: (2016) <http://www.reproductiverights.org/sites/default/files/documents/WOWAA04.pdf>
accessed 3 November 2016. (2016)
<http://www.who.int/reproductivehealth/publications/general/lancet_3.pdf> accessed 3
November 2016.

2 | Page
one before me.3 I agree with the learned Judge that the conflicting rights should be looked at in
very courteous manner, and for that reason I will start with the second part of the question.

ARGUMENTS ON SUPPORT OF EXEMPTING THE PHARMACIST FROM

DISCHARGING HER OBLIGATION
This group rely on Article 32 of the freedom of conscience, religion, belief and opinion and use
the principle of conscientious objection and proper disobedience to defend the spirit of Article 32
of the constitution. Courts interpret right to religion as a concept that embraces three issues as
follows; the right to belong to a religion, the right to hold a belief and lastly the right to manifest
both the religion and the belief. In defence of the spirit of this principles, they rely
on;Conscientious Objection: This kind of protest may be understood as a violation of the law
motivated by the dissenter's belief that she is morally prohibited to follow the law because the
law is either bad or wrong, totally or in part. The conscientious objector may believe, for
example, that the general character of the law in question is morally wrong (as an absolute
pacifist would believe of conscription), or that the law extends to certain cases which it should
not cover.4In our case, the Pharmacist believes that contraceptives are one way of preventing the
objective of sex as was ordained by God. The group to which the Pharmacist belong believes that
people are obliged in conscience not to follow the directives of civil authority when they are
contrary to the commands of moral order, to the fundamental rights of person or the teachings of
the gospel. They claim that the government itself is obliged under article 17(3) of the African
Charter of Human and Peoples right to promote and protect morals and traditional values
recognized by the community. That if any law attempts to restrain a person from expressing his
belief founded on certain religion ,then such law must not be binding to such person since human
law has the character of law only to the extent that is consistent with the right reason.
They believe that legitimate authority is that which seeks the common good of the group
concerned. This school of thought looks beyond the pharmacists client or the living (the woman)
but also the fact that the contraceptives prevents the implantation of fertilized eggs .After
recognizing the duty of state to ensure highest standard of health, and living standard to its
subject, they contend that the concerned group should not be viewed only in relation to the living
but also the unborn. That an authority is illegitimated when it seeks the common good of the
group concerned by employing morally licit means to attain it. They insist that if rulers enact
unjust laws or take measures contrary to the moral order, such arrangement would not be binding
in conscience. They claim that the hierarchy is clear, that citizens should obey the laws made by
the authority and authority to make laws in obedience of God. To them, the ruler should be just,
reaffirm the covenant, lead the people in the ways of the lord, promote peace, defend life and
rescue the poor and the widow.5 Any of these duties cannot be done in isolation to the detriment
of any other. State cannot claim to rescue the widow if the life is put at risk by such act.
Contraceptive is according to then any action which either in anticipation of sexual intercourse
or its accomplishment or in the development of its natural consequences proposes as a means to
3 'Petition 431 of 2012 - Kenya Law' (Kenyalaw.org, 2016)
<http://kenyalaw.org/caselaw/cases/view/93354/> accessed 2 November 2016.

4 Brownlie kimberley, 'Civil Disobedience' (Plato.stanford.edu, 2016)

<http://plato.stanford.edu/entries/civil-disobedience/> accessed 1 November 2016.

3 | Page
render procreation impossible. The contraception to this group is wrong because it is deliberate
violation of the design God built into human race. The natural law purposes of sex is procreation
but the pleasure that sexual intercourse provides is an additional blessing from God intended to
offer the possibility of new life while strengthening the bond of intimacy respect and love
between husband and wife.6
WHETHER IT IS PROPER TO DISOBEY SUCH LAWS
The answer to this group is yes. They believe that not following that law is proper disobedience
which is justifiable both morally as explained above and legally. Thoreau argues that Christians
should be men first and then subject, that, if law is of such a nature that it requires them to be the
agent of injustice to another, then, they should break the law. That Christians should at any rate,
not lend themselves to the wrong which they condemn7. Christians are to obey God rather than
man when a civil law conflicts with a clear precept of God, Even Martin Luther King Jr.
believes that one has a moral responsibility to disobey unjust laws.
LEGAL RESPONSIBILITY

Freedom of conscience, religion, belief and opinion is guaranteed by Article 32 of the

Constitution which provides that;
(1) Every person has the right to freedom of conscience, freedom of conscience, religion,
thought, belief and opinion.
(2) Every person has the right, either individually or in community with others, in public or in
private, to manifest any religion or belief through worship, practice, teaching or observance,
including observance of a day of worship.
(3) A person may not be denied access to any institution, employment or facility, or the
enjoyment of any right, because of the persons belief or religion.
(4) A person shall not be compelled to act, or engage in any act, that is contrary to the persons
belief or religion.
Because this provision provides both the right to hold a belief and to manifest such belief which
is exactly what the Catholic Pharmacist did, it is in their view just to exempt the Pharmacist from
the duties which conflict with their belief and religion. This position has as well been supported
by the courts in South African Constitutional Court case of Christian Education South Africa v
Minister for Education (CCT 4/00) 2000 where the Court held that freedom of religion includes

5 When Is It Okay To Disobey? | Catholic Answers' (Catholic.com, 2016)

<http://www.catholic.com/magazine/articles/when-is-it-okay-to-disobey> accessed 4
November 2016.

6 'Birth Control | Catholic Answers' (Catholic.com, 2016)

<http://www.catholic.com/tracts/birth-control> accessed 4 November 2016.

7'Launchpad: Henry David Thoreau's Essay "Civil Disobedience" | Edsitement'

(Edsitement.neh.gov, 2016) <https://edsitement.neh.gov/launchpad-henry-david-thoreaus-
essay-civil-disobedience> accessed 5 November 2016.

4 | Page
both the right to have a belief and the right to express such belief in practice. Also in the case
of MEC for Education KwaZulu Natal & Others v Navaneethum Pillay & Others CCT 51
2006 where the court held a rule that prohibited wearing of studs in schools was unconstitutional.

Another example in this country is when Njonjo Mue scaled the walls of parliament and torn a
flag off a government car. Mue was protesting what he felt was our new governments complete
betrayal of all of the ideals, all of the peoples struggles, that brought it into power. He was
immediately arrested and charged in court the following day with creating a disturbance in a
manner likely to cause a breach of the peace, but funny enough, the National Constitution
Executive Council called for all charges against Mue to be dropped on the basis that they
constitute legitimate protest an exercise of his freedom of expression.8

On the other hand, there are the second group which believe that:

THE PHARMACIST SHOULD BE COMPELLED TO DO HER DUTY IN

RECOGNISSANCE OF THE RIGHT OF HER CLIENT UNDER ARTICLE 43
Their arguments are as follows;

They contend that people with various religious beliefs should have the same rights, and no
more, as others in society including those who are not religious. And that no person or religious
organization should deny other people their rights, discriminate unfairly against them, oppress or
denigrate others or impose their religious views on others. It is their argument that freedom of
religion is one of the fundamental rights and freedoms that are not absolute. Limitation of such a
freedom can therefore be qualified by reasonable and justifiable criteria in an open and
democratic society based on human dignity, equality and freedom taking into account all relevant
factors. They believe that by exempting the Pharmacist from her legal duty which she took
voluntarily and to which she swore to operate within the ethics that regulate, will be to advance
her, an act which may be considered discriminatory and in promotion of state religion. That
government assistance to such act or protection of such primitive religious morals are to be seen
as unconstitutional. In the case of Hernandez v Comm'r of Internal Revenue , 490 U.S 680
(1989) where it was held that when government entities act in ways that are facially neutral
and applicable to everyone regardless of religion, these actions are constitutionally lawful even if
they happen to burden some members of some faith. This shows that the Pharmacist must be
ready to forego some beliefs for the continuity of the society.
The right to religion as provided for under Article 32 of the Constitution which the first group
tend to rely, must be read in light of Articles 24, 43(d) and 27 of the Constitution and it is their
position that whereas the right to belong to a religion and hold a belief is absolute, the right to
manifest it is qualified. Hence the right to express and manifest one's religion and religious
beliefs is one of those fundamental rights and freedoms that are not absolute and can be qualified
under Article 24 of the Constitution. It is clearly manifested that in a democratic society where
several religions exists with one another, it may be necessary to restrict people's manifestations

8 : 'Bravo, Mue, We All Don't Believe In NARC - Opinion And Editorial' (Theeastafrican.co.ke,
2017) <http://www.theeastafrican.co.ke/opOrEd/-/434748/245248/-/rc5ey7z/-/index.html>
accessed 27 March 2017.

5 | Page
of religious beliefs in order to reconcile the interests of various groups and ensure that every
person's beliefs are protected. That the right of religion and freedom of conscience may be
limited by rules and regulations made by various organs of management to ensure order and
smooth running of the state and other institutions.9
The meaning of religion was attempted by Dickson CJC in R v Big M Drug Mart Ltd case
(supra) where he observed as follows;
A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes
and pursuits, customs and codes of conduct. A free society is one which aims at equality with
respect to the enjoyment of fundamental freedoms and I say this without any reliance upon
Section 15 of the Charter (an equivalent of our Article 32). Freedom must surely be founded in
respect for the inherent dignity and inviolable rights of the human person. The essence of the
concept of freedom of religion is the right to entertain such religious beliefs as a person chooses,
the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the
right to manifest religious belief by worship and practice or by teaching and dissemination. If a
person was compelled by the State or the will of another to do that which he would ordinarily not
have chosen to do, he is not acting of his own volition and thus cannot be said to be truly free.
He opined that one of the purposes of the Charter was to protect everyone and within reason,
from compulsion or restraint. He went on to say that freedom of religion meant in a broad sense,
that subject to such limitations as are necessary to protect public safety, order, health or morals or
fundamental rights of others , no one is to be forced to act in a way contrary to his beliefs or his
conscience. On the other hand, Lenaola J expressed himself as follows;
What may appear good and true to a majoritarian religious group, or to the state acting at their
behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The
Charter safeguards religious minorities from the threat of the 'tyranny of the majority.10

CONCLUSION
I do not dispute that there are circumstances in which we have a right, perhaps a duty to assert
ethical or religious objections to fulfilling our professional obligations. In fact I do not know of
any person who would want to be operated on by a surgeon who was forced against conscience
to slice them open. However, refusal decisions are never solely about the professional,
conscientious refusal always affects someone else's health and access to medical care.11

9 Ibid 'Petition 431 of 2012 - Kenya Law' (Kenyalaw.org, 2016)

<http://kenyalaw.org/caselaw/cases/view/93354/> accessed 2 November 2016.

10 Ibid 'Petition 431 of 2012 - Kenya Law' (Kenyalaw.org, 2016)

<http://kenyalaw.org/caselaw/cases/view/93354/> accessed 2 November 2016.

11 University Santa, 'Conscientious Refusal - Resources - Bioethics - Focus Areas - Markkula

Center For Applied Ethics - Santa Clara University' (Scu.edu, 2016)
<https://www.scu.edu/ethics/focus-areas/bioethics/resources/conscientious-refusal/>
accessed 2 November 20

6 | Page
To solve the above conflict then, I will with caution proceed to look onto law which may do the
justice since both parties seem persuasive. To start with, I will rely on Article 18(3) of
the United Nations Declaration on the Elimination of all Forms of Intolerance and of
Discrimination Based on Religion or Belief also states that the external act of manifesting one's
religion or belief can be subjected to limitations only if the limitation;
(a) Is prescribed by law.
(B) is necessary to protect public safety, order, health or morals or the fundamental rights of
others.
LIMITING THE RIGHT BY LAW
Under the first prerequisite of limiting the right, I will refer to the principles of ethics guiding the
Pharmacists. According to the prescribed ethics for pharmacist, all pharmacists registered as so,
whether practicing or not are required to know the principles .The code also talks about
pharmacist recognizing the individuals right to freedom of choice of treatment.12 This infers
responsibility to respect patient autonomy, to understand that no one knows another better than
themselves, and to respect patient (and colleague) choices even when the professional does not
agree. Because that is what the law says and the rule of law is above man, if the Pharmacist felt
bound by her higher power, she should have either told her boss that she will not be dispensing
birth controls, for the boss to take necessary action prior to the visit of the client, most preferably
when she was being interviewed for the job. It is always best for people who feel that their belief
might conflict with the dictates of their profession to expressly state it as Maraga CJ did during
the interview that he will not be able to work on since it is his Sabbath day.
Under the codes of ethics in the list of principles, principle number 9 requires and in fact
compels all the Pharmacist to ensure continuity of care in the event of labour disputes, pharmacy
closure and conflict with personal moral beliefs.13 This shows therefore that even if there could
have been several other pharmacists and pharmacies around, she was bound after determining
that the young woman requested a legalized medicine which, according to pharmacy practice,
ought to be dispensed, to give the contraceptive.
I agree with the administrative law judge of Wisconsin Department of Regulation and
Licensing's Pharmacy Examining Board who presided over the case of University of Wisconsin-
Stout student -vs- Neil Noesen and who found that the ordinary standard of care "requires that
a pharmacist who exercises a conscientious objection to dispensing of a prescription must ensure
that there is an alternative mechanism for the patient to receive his or her medication, including
informing the patient of their options to obtain their prescription. The basis for a refusal based on
conscience is a conflict with the professional's personal values or core moral beliefs. Such values
and beliefswhether grounded in religion, as in this case, or notmatter deeply to a person,
forming an integral part of self-identity and personal integrity and, hence, deserve some degree
of protection.
In fact his finding that Noesen's conduct constituted "a danger to the health, welfare, or safety
of a patient and was practiced in a manner which substantially departs from the standard of care
ordinarily exercised by a pharmacist and which harmed or could have harmed a patient."14

12 'Code Of Ethics | Pharmaceutical Society Of Kenya' (Psk.or.ke, 2016)

<http://www.psk.or.ke/membership/code-of-ethics> accessed 2 November 2016

13 ibid

7 | Page
Since protection of health is one of the reasons why a right under Article 32 of the constitution
can be limited which I have already determined that the denial of the womans access to
contraceptive amounted to contravention of her right to health under Article 43, and further
finding that the Code of Ethics which sets out the principles that one must follow as a
Pharmacist provide that a pharmacist must ensure continuity of care in the event of labour
disputes, pharmacy closure and conflict with personal moral beliefs.15 I will safely conclude that
law is supreme and therefore my answer is on the affirmative that a Catholic Pharmacist who
refuses to give the contraceptive to this woman in recognition of her constitutional right to health
under Article 43-Economic and Social rights of Kenya constitution should be compelled to do so
as per the law, since this will be the only way to ensure the proper balance of various individual
interest and continuity of society.

14 University Santa, 'Conscientious Refusal - Resources - Bioethics - Focus Areas - Markkula

Center For Applied Ethics - Santa Clara University' (Scu.edu, 2016)
<https://www.scu.edu/ethics/focus-areas/bioethics/resources/conscientious-refusal/>
accessed 2 November 2016.

15 'Code of Ethics | Pharmaceutical Society of Kenya' (Psk.or.ke, 2016)

<http://www.psk.or.ke/membership/code-of-ethics> accessed 2 November 2016.

8 | Page