The government has recently been in the news for promoting the policy of male circumcision to combat the spread of HIV/Aids. While this move is commendable in that it seeks to reduce the spread of a disease which has taken the lives of many Kenyans and left even more infected and affected, it raises some serious legal, constitutional and ethical issues that need to be resolved. It is not clear how the government intends to ensure the success of this policy. However, if not implemented in a socially-cum-human rights based manner, it is sure to touch a raw nerve with many people.
The first thing that needs to be considered is the constitutional effect of the policy. Article 2 of the Constitution of Kenya declares it as the supreme law of the Republic and binding on all state organs at both levels of government. Article 19(1) further states that the Bill of Rights is an integral part of Kenya's democratic state and is the framework for social, economic and cultural policies. This means that the state is bound by the Bill of Rights in the policies that it makes. One might be tempted to ask, are there any constitutional rights that might be affected, taken away or violated by the government policy of promotion of male circumcision?
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