The Proposed Constitution of Kenya, Abortion, and the Obama Administration

Four GOP House members this week asked the Inspector General for the U.S. Agency for International Development to investigate whether the Obama administration misused appropriated funds to support Kenya's proposed constitution.  Reps. Chris Smith, Ileana Ros-Lehtinen, Darrell Issa, and Frank Wolf signed a letter to USAID IG Donald Gambatesa asking him to look into the administration's apparent expenditure of $23 million dollars to support the "yes campaign" in favor of the proposed constitution, including its provision protecting a qualified right to abortion.

The proposed constitution, which goes before Kenyan voters in a referendum on August 4, is designed primarily to cut back on expansive (and historically abused) presidential authority and enshrine separation of powers and checks and balances.  The movement for a new constitution grew out of the post-election violence in 2007 and 2008 that left 1,000 people dead and 600,000 displaced from their homes.

The Obama administration has not been shy about publicly supporting the new constitution--saying it will promote more stable democracy, rule of law, and increased foreign investment--while always adding the caveat that the final decision belongs to Kenyans.  (President Obama's remarks are summarized by the U.S. Embassy here; Vice President Biden's remarks last month in Kenya are here.)  Kenyan President Mwai Kibaki is equally (or even more) enthusiastic about the proposed constitution and has publicly encouraged turn-out and support.

Two provisions of the proposed constitution have become controversial, however.  One, Section 170, Kadhis' Courts, establishes Muslim courts to hear family disputes.  The other, Section 26, Right to Life, in the Bill of Rights, protects the right to life and a qualified right to abortion:

(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 authorized by this Constitution or other written law.

(4) Abortion is not permitted unless, in the opinion of a trained health professional, there is a need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.

While Rep. Smith objects to the administration "spending $23 million in American tax dollars on the specific "Yes" campaign, pushing a determined outcome on the proposed constitution in Kenya," his letter to the USAID IG asks for an investigation only into whether the administration's support of the proposed constitution and Section 26 violates a proviso in the Consolidated Appropriations Act of 2010, P.L. 111-117, 123 Stat. 3035, which states

That none of the funds made available under this Act may be used to lobby for or against against abortion.

123 Stat. 3324. 

The restriction has its origins in President Reagan's August 1984 announcement--the "Mexico City Policy"--that directed USAID to withhold funds from NGOs that provided advice, counseling, or information regarding abortion, or lobbying a foreign government to legalize or make abortion available.  President Clinton reversed the policy by memo to the Acting Administrator of USAID on January 22, 1993, stating that "the conditions are not mandated by the Foreign Assistance Act or any other law."  President George W. Bush reinstated the Mexico City Policy on February 13, 2001.  President Obama reversed it on January 23, 2009, and ordered the Secretary of State and the Administrator of USAID to cease enforcing the Mexico City Policy conditions "that are not required by the Foreign Assistance Act or any other law."

Rep. Smith claims that some of the funds have been funneled to organizations that specifically support Section 26, Clause 4, in violation of the proviso in the Consolidated Appropriations Act of 2010, and, "[m]aking matters worse, several pro-abortion NGOs received U.S. funding and their influence in support of the abortion provision is under investigation by the USAID IG." 

The Embassy said that nine of the grants were suspended or concluded, but did not provide further details.  Rep. Smith's letter specifically asks the IG to investigate and report on these nine.

SDS