Foreign Assistance
Clearer Guidance Needed on Compliance Overseas with Legislation Prohibiting Abortion-Related Lobbying Gao ID: GAO-12-35 October 13, 2011Following a 2007 disputed election and widespread violence, Kenya reformed its constitution, which its voters approved in August 2010. The United States has provided over $18 million to support this process to date. GAO was asked to (1) describe any involvement that U.S. officials have had in Kenya's constitutional reform process relating to abortion; (2) describe any support that U.S.-funded award recipients and subrecipients have provided in Kenya's constitutional reform process relating to abortion; and (3) assess the extent to which agencies have developed and implemented guidance on compliance with the Siljander Amendment, which prohibits using certain assistance funds to lobby either for or against abortion. GAO analyzed documents and interviewed officials from the U.S. Agency for International Development (USAID), the Department of State (State), award recipients and subrecipients, and the Kenyan government, and conducted an extensive media search.
Between 2008 and 2010, U.S. officials, including the U.S. ambassador to Kenya, publicly expressed support for Kenya's constitutional reform process. GAO found no indication that U.S. officials opined on the issue of abortion publicly or attempted to influence the abortion-related provisions of the draft constitution--a finding corroborated by a key Kenyan parliamentarian who served on the committee assisting in the constitutional reform process. U.S.-funded award recipients and their subrecipients supported the constitutional reform process through activities that included civic education and technical assistance, both of which addressed the issue of abortion to some extent. USAID-funded civic education sought to inform Kenyans on the text of the draft constitution, and GAO found that some forums included discussion of abortion- related provisions. Some subrecipients undertook interpretation of the provisions at their forums, including describing scenarios in which abortion might be allowed. Several subrecipients explained to the public that, in their view, future legislation might be required to implement and further articulate the abortion- related provisions. While some subrecipients addressed the abortion-related provisions of the constitution, GAO found no indication that they cited the abortion provisions as a rationale to vote for or against the constitution. USAID also funded a technical assistance award to the International Development Law Organization (IDLO) to support the Committee of Experts (COE), the nongovernmental entity charged with drafting the constitution. In the course of providing comments and advice regarding the entire draft constitution, IDLO made suggestions relating to the issues of fetal rights and abortion during the early stages of drafting. IDLO later commented on broadening the exceptions when abortion would be legal. The COE has indicated that it generally considered IDLO's advice when revising the draft constitution. The final draft of the constitution is consistent with some of IDLO's advice relating to abortion, though GAO could not determine whether the COE made these changes in direct response to IDLO's advice. Neither State nor USAID has clear guidance for compliance with the Siljander Amendment, which makes it difficult for some agency officials and award recipients to determine what types of activities are prohibited. State has not developed any guidance at all on the prohibition. USAID has offered training for its health and legal officers on compliance with family planning-related legislation, including the Siljander Amendment, for years and began offering some training to other officials in 2010. However, USAID's training and other family planning resources do not identify specific types of activities that are prohibited under the amendment. State and USAID attorneys indicated that they are available to provide advice to staff on a case-by-case basis, upon request. However, some State and USAID officials and award recipients GAO spoke to said that they were unclear as to what specific activities were prohibited. GAO recommends that State and USAID develop specific guidance on compliance with the Siljander Amendment, indicating what kinds of activities may be prohibited, disseminate this guidance throughout their agencies, and make it available to award recipients and subrecipients. USAID concurred. State concurred that it should inform staff of the amendment but not that it should provide examples of potentially prohibited activities. GAO continues to believe that providing such examples would enable officials to better understand the amendment and when to seek additional guidance.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Jacquelyn L. Williams Bridgers Team: Government Accountability Office: International Affairs and Trade Phone: (202)512-3000GAO-12-35, Foreign Assistance: Clearer Guidance Needed on Compliance Overseas with Legislation Prohibiting Abortion-Related Lobbying
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United States Government Accountability Office:
GAO:
Report to Congressional Requesters:
October 2011:
Foreign Assistance:
Clearer Guidance Needed on Compliance Overseas with Legislation
Prohibiting Abortion-Related Lobbying:
GAO-12-35:
GAO Highlights:
Highlights of GAO-12-35, a report to congressional requesters.
Why GAO Did This Study:
Following a 2007 disputed election and widespread violence, Kenya
reformed its constitution, which its voters approved in August 2010.
The United States has provided over $18 million to support this
process to date. GAO was asked to (1) describe any involvement that
U.S. officials have had in Kenya‘s constitutional reform process
relating to abortion; (2) describe any support that U.S.-funded award
recipients and subrecipients have provided in Kenya‘s constitutional
reform process relating to abortion; and (3) assess the extent to
which agencies have developed and implemented guidance on compliance
with the Siljander Amendment, which prohibits using certain assistance
funds to lobby either for or against abortion. GAO analyzed documents
and interviewed officials from the U.S. Agency for International
Development (USAID), the Department of State (State), award recipients
and subrecipients, and the Kenyan government, and conducted an
extensive media search.
What GAO Found:
Between 2008 and 2010, U.S. officials, including the U.S. ambassador
to Kenya, publicly expressed support for Kenya‘s constitutional reform
process. GAO found no indication that U.S. officials opined on the
issue of abortion publicly or attempted to influence the abortion-
related provisions of the draft constitution”a finding corroborated by
a key Kenyan parliamentarian who served on the committee assisting in
the constitutional reform process.
U.S.-funded award recipients and their subrecipients supported the
constitutional reform process through activities that included civic
education and technical assistance, both of which addressed the issue
of abortion to some extent. USAID-funded civic education sought to
inform Kenyans on the text of the draft constitution, and GAO found
that some forums included discussion of abortion-related provisions.
Some subrecipients undertook interpretation of the provisions at their
forums, including describing scenarios in which abortion might be
allowed. Several subrecipients explained to the public that, in their
view, future legislation might be required to implement and further
articulate the abortion-related provisions. While some subrecipients
addressed the abortion-related provisions of the constitution, GAO
found no indication that they cited the abortion provisions as a
rationale to vote for or against the constitution. USAID also funded a
technical assistance award to the International Development Law
Organization (IDLO) to support the Committee of Experts (COE), the
nongovernmental entity charged with drafting the constitution. In the
course of providing comments and advice regarding the entire draft
constitution, IDLO made suggestions relating to the issues of fetal
rights and abortion during the early stages of drafting. IDLO later
commented on broadening the exceptions when abortion would be legal.
The COE has indicated that it generally considered IDLO‘s advice when
revising the draft constitution. The final draft of the constitution
is consistent with some of IDLO‘s advice relating to abortion, though
GAO could not determine whether the COE made these changes in direct
response to IDLO‘s advice.
Neither State nor USAID has clear guidance for compliance with the
Siljander Amendment, which makes it difficult for some agency
officials and award recipients to determine what types of activities
are prohibited. State has not developed any guidance at all on the
prohibition. USAID has offered training for its health and legal
officers on compliance with family planning-related legislation,
including the Siljander Amendment, for years and began offering some
training to other officials in 2010. However, USAID‘s training and
other family planning resources do not identify specific types of
activities that are prohibited under the amendment. State and USAID
attorneys indicated that they are available to provide advice to staff
on a case-by-case basis, upon request. However, some State and USAID
officials and award recipients GAO spoke to said that they were
unclear as to what specific activities were prohibited.
What GAO Recommends:
GAO recommends that State and USAID develop specific guidance on
compliance with the Siljander Amendment, indicating what kinds of
activities may be prohibited, disseminate this guidance throughout
their agencies, and make it available to award recipients and
subrecipients. USAID concurred. State concurred that it should inform
staff of the amendment but not that it should provide examples of
potentially prohibited activities. GAO continues to believe that
providing such examples would enable officials to better understand
the amendment and when to seek additional guidance.
View [hyperlink, http://www.gao.gov/products/GAO-12-35] or key
components. For more information, contact Jacquelyn Williams-Bridgers
at (202) 512-3101 or williamsbridgersj@gao.gov.
[End of section]
Contents:
Letter:
Background:
U.S. Officials Publicly Supported the Constitutional Reform Process,
but Did Not Take a Position on the Issue of Abortion:
Some U.S.-Funded Award Recipients and Subrecipients Addressed Abortion
through Civic Education and Technical Assistance:
Neither State nor USAID Has Clear Guidance on the Types of Activities
Prohibited under the Siljander Amendment:
Conclusions:
Recommendation for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Chronology of Constitutional Reform in Kenya:
Appendix III: Status of Compliance with the Requirement to Include
USAID's Mandatory Provision Prohibiting Abortion-Related Activities in
Awards:
Appendix IV: Comments from the Department of State:
Appendix V: Comments from the U.S. Agency for International
Development:
Appendix VI: GAO Contact and Staff Acknowledgments:
Figures:
Figure 1: IDLO Advice and Comments to the COE on the Right to Life
Article in Kenya's Constitution:
Figure 2: Timeline of Constitutional Reform in Kenya, 1963-2010:
Figure 3: Compliance Status of Kenyan Constitutional Reform Process
Awards with the USAID Language Requirement Prohibiting Abortion-
Related Activities:
Abbreviations:
ADS: Automated Directives System:
CEPPS: Consortium for Elections and Political Process Strengthening:
COE: Committee of Experts:
DAI: Development Alternatives Incorporated:
DCHA: Bureau for Democracy, Conflict, and Humanitarian Assistance:
GLAAS: Global Acquisition and Assistance System:
IFES: International Foundation for Electoral Systems:
IDIQ: indefinite delivery/indefinite quantity:
IDLO: International Development Law Organization:
IG: Inspector General:
OAA: Office of Acquisition and Assistance:
PIO: public international organization:
PSC: Parliamentary Select Committee:
SUNY: State University of New York:
UNDP: United Nations Development Programme:
USAID: U.S. Agency for International Development:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
October 13, 2011:
The Honorable Ileana Ros-Lehtinen:
Chairman:
Committee on Foreign Affairs:
House of Representatives:
The Honorable Darrell E. Issa:
Chairman:
Committee on Oversight and Government Reform:
House of Representatives:
The Honorable Christopher H. Smith:
Chairman Subcommittee on Africa, Global Health, and Human Rights:
Committee on Foreign Affairs:
House of Representatives:
Kenya is a critical U.S. partner by virtue of its strategic
geographical position and relative economic prominence in East Africa,
and its political stability has implications for the entire region.
Following a disputed presidential election in 2007 and resulting
widespread violence, the Kenyan coalition government pledged to pursue
an array of reforms to strengthen its democratic institutions,
including constitutional reform. The United States has provided Kenya
with constitutional reform-related assistance as part of the U.S. goal
of promoting democratic, well-governed states, much as it has in other
countries that have experienced recent political upheaval, such as
Iraq and Sudan. Since fiscal year 2008, the United States has provided
over $18 million through the U.S. Agency for International Development
(USAID) to nongovernmental and public international organizations to
support these reform efforts. The Department of State (State) was also
an active proponent for constitutional reform. After a 2 year process,
the Kenyan government put forth a proposed constitution that the
Kenyan people voted to accept in a national referendum on August 4,
2010. The new constitution includes provisions directly related to
abortion. Though abortion has generally been illegal under existing
Kenyan law, previous versions of the constitution had not directly
addressed the issue.
Since annual appropriations restrictions known as the Siljander
Amendment prohibit the use of certain U.S. assistance funds to lobby
for or against abortion,[Footnote 1] you have raised questions about
the extent and nature of U.S. support and assistance regarding the
abortion-related provisions in Kenya's constitution. In response to
your request, we (1) described any involvement that U.S. officials
have had in the Kenyan constitutional reform process relating to
abortion, (2) described any support that U.S.-funded award recipients
and subrecipients have provided in the Kenyan constitutional reform
process relating to abortion, and (3) assessed the extent to which
U.S. agencies have developed and implemented guidance to help ensure
compliance with the Siljander Amendment.
To address these objectives, we analyzed program documents from State,
USAID, and the USAID award recipients and subrecipients that have
implemented U.S.-funded assistance programs.[Footnote 2] We conducted
an extensive search of Kenyan and international media resources in
order to identify any statements that key USAID and State officials
and USAID award recipients and subrecipients may have made about
abortion or the constitutional reform process. We also interviewed key
USAID and State officials in Washington, DC, and traveled to Kenya to
interview key U.S. embassy officials, USAID award recipients, and
selected subrecipients that we identified based on the results of our
document review and media search as being most likely to have
addressed the issue of abortion. Our work supplements reports produced
at your request by the inspectors general (IG) of both State and USAID
in 2010.[Footnote 3]
We conducted our work between January 2011 and October 2011 in
accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objectives. A more
detailed description of our scope and methodology can be found in
appendix I.
Background:
Kenya has attempted constitutional reform several times over the past
50 years, but has been unsuccessful until recently. (See app. II for a
detailed chronology of Kenyan constitutional reform-related events.) A
disputed presidential election in 2007, followed by allegations of
vote rigging and ethnic violence that killed more than 1,300 people
and displaced approximately 350,000 more, catalyzed the need for
reform. On May 23, 2008, Kenya's new coalition government agreed to
undertake a reform agenda that included constitutional reform.
[Footnote 4]
The Kenyan Parliament established a process to review and potentially
replace the existing constitution with one that would better ensure
security and stability, democratic governance, and protection of
rights for all Kenyans. Parliament established two bodies to lead this
process--a nongovernmental entity known as the Committee of Experts
(COE) to draft the constitution, and a Parliamentary Select Committee
(PSC) to assist the National Assembly in the constitutional reform
process. Parliament also mandated that both the National Assembly and
the Kenyan people would have to approve the draft.
The COE produced three different drafts of the constitution,
considering comments from the Kenyan people, the PSC, and others. The
COE released the first draft to the public on November 17, 2009, and
then revised the draft based on approximately 1 million suggestions
from the public. The COE submitted this revised draft to the PSC on
January 8, 2010, which in turn provided recommendations for the COE to
consider as it prepared its third and final draft. The COE reviewed
the PSC recommendations, consulted with experts in areas of
contention, revised the draft, and presented its third and final draft
to the Kenyan National Assembly on February 23, 2010. The National
Assembly debated the draft and discussed potential amendments, but
approved the draft without changes on April 1, 2010. The Kenyan people
voted on this proposed constitution in a national referendum on August
4, 2010. Seventy-two percent of registered voters participated in the
referendum, and 67 percent of Kenyan voters approved the constitution.
The new constitution was enacted on August 27, 2010.
Kenya's prior constitution did not directly address the issue of
abortion, though the Kenyan penal code does address the issue. Under
Kenya's existing penal code, abortion is generally illegal and is
legally allowed only under certain circumstances.[Footnote 5] The new
constitution, however, includes an article entitled "Right to Life."
This article states that the life of a person begins at conception and
that abortion is not permitted unless, in the opinion of a trained
health professional, there is a need for emergency treatment, the life
or health of the mother is endangered, or it is permitted under
another written law.
The United States, in line with its objective of collaborating to
foster peace and stability in East Africa, has supported Kenya's
efforts at governmental reform at all levels, with particular emphasis
on constitutional reform. Since the signing of the comprehensive
reform agenda in May 2008, USAID has funded 12 awards to 9 award
recipients for work on Kenyan constitutional reform efforts. The award
recipients have, in turn, given 182 smaller awards to 124 Kenyan
partner organizations, or subrecipients. Prior to the constitutional
referendum, these award recipients and subrecipients conducted program
activities such as voter registration, logistical support, civic
education, and technical assistance. Since the referendum, they have
supported continued civic education, electoral reform, and conflict
mitigation in preparation for the 2012 national elections. USAID's
Bureau for Democracy, Conflict, and Humanitarian Assistance (DCHA) has
had primary responsibility for managing the awards.
In implementing this assistance, State and USAID are prohibited from
abortion-related lobbying. The prohibition, first enacted in 1981 and
commonly referred to as the Siljander Amendment, currently appears in
the annual Department of State, Foreign Operations, and Related
Programs Appropriations Acts. It states in its entirety that "none of
the funds made available under this Act may be used to lobby for or
against abortion."[Footnote 6]
U.S. Officials Publicly Supported the Constitutional Reform Process,
but Did Not Take a Position on the Issue of Abortion:
Between 2008 and 2010, U.S. officials publicly expressed support for
Kenya's comprehensive reform agenda, including constitutional reform,
as an essential tool for maintaining peace and stability. We did not
find any indication that U.S. officials gave an opinion publicly on
the issue of abortion or attempted to influence the Right to Life
article of the draft constitution.
U.S. Officials Publicly Supported the Constitutional Reform Process:
State and USAID officials supported Kenya's constitutional reform
process primarily through public statements and constitutional reform-
related assistance programs. As noted in the 2010 State IG report and
in press releases, high-level U.S. officials, including the President,
Vice President, and Secretary of State, publicly expressed their
support for constitutional reform in Kenya. The U.S. Ambassador to
Kenya also spoke in support of the constitutional reform process at
multiple public events and in Kenyan news media.[Footnote 7] In
general, these statements from U.S. officials supported the reform
process itself, although some statements implied preference for a
"yes" vote in the referendum. For example, in June 2010, the Vice
President told Kenyans that "putting in place a new constitution and
strengthening your democratic institutions with the rule of law will
further open the door to major American development programs . . .
[and] bring about reinvestment by American corporations and
international organizations in Kenya that could provide millions of
dollars in assistance." Although we found no indication that USAID
officials gave public speeches on the constitutional reform process,
they lent their support through assistance programs such as civic
education.
Following the postelectoral violence in Kenya in 2008, key State and
USAID officials we interviewed told us they supported the
comprehensive reform agenda because they viewed it as essential to
maintaining stability in Kenya as well as in East Africa. The
officials added that they viewed constitutional reform as the
cornerstone of the comprehensive reform agenda. They also said that a
unique confluence of factors had made constitutional reform in Kenya a
distinct possibility for the first time in decades. These factors
included high-level support from both the Kenyan president and the
prime minister, which gave the reform process legitimacy. In addition,
former United Nations Secretary-General Kofi Annan lent his support as
chair of the reform agenda negotiating team. Finally, U.S. embassy
officials considered it important for Kenya to have a new constitution
in place in advance of the 2012 elections or risk a repeat of the 2008
violence.
No Indication That U.S. Officials Took a Position on Abortion:
While U.S. officials supported the constitutional reform process, we
found no indication that U.S. officials took a public position on the
proposed constitution's abortion-related provisions or directly
attempted to influence the text of the provisions. In addition to
interviewing the ambassador and several other key State and USAID
officials, we conducted an extensive search of U.S., Kenyan, and other
international media sources (see appendix I). Our media search did not
reveal any instances of U.S. officials publicly discussing the
abortion-related provisions of the constitution, and the officials we
interviewed stated that they never discussed abortion in public or
sought to influence the text of the abortion-related provisions in the
constitution. Moreover, a Kenyan parliamentarian we interviewed who
had served on the PSC, which assisted the National Assembly in the
constitutional reform process, told us that, to her knowledge, no U.S.
official had discussed the abortion-related provisions with PSC
members.[Footnote 8] This information is consistent with the findings
of the 2010 State IG report.
However, one key State official we interviewed briefly discussed the
constitution's abortion-related provisions during private meetings
with Kenyan leaders as an issue that could affect the reform process.
This official, the political officer in charge of tracking the
progress of the reform process overall, said that in the course of his
work he had private discussions with Kenyan parliamentarians and
church leaders in which they raised the topic of the abortion-related
provisions.[Footnote 9] He emphasized, however, that he never took a
position on the issue in these discussions.
Two U.S. officials also told us that they briefly discussed the
constitution's abortion-related provisions internally as an issue that
could affect the reform process. The U.S. ambassador told us that the
topic arose during regular embassywide meetings on the reform process.
He and a political officer we interviewed indicated that during these
meetings the ambassador instructed staff to remain objective and limit
any statements on the issue to repeating the text of the constitution.
None of the other relevant State and USAID officials we interviewed
recalled ever discussing the abortion issue in these meetings.
Some U.S.-Funded Award Recipients and Subrecipients Addressed Abortion
through Civic Education and Technical Assistance:
Two elements of U.S.-funded support for the constitutional reform
process--civic education and technical assistance--addressed the issue
of abortion to some extent. State did not have any constitutional
reform-related programs. USAID-funded civic education forums sought to
inform Kenyan citizens on the text of the proposed constitution, and
we found that some forums included discussion of the constitution's
abortion-related provisions. Civic education facilitators addressed
the provisions in a variety of ways, but we did not find any
indication that award recipients or subrecipients cited them as a
rationale to vote for or against the constitution. USAID also funded
technical assistance to Kenyan organizations involved in the
constitutional referendum; in doing so, one award recipient provided
comments on the text of the entire draft constitution, including
advice on the abortion-related provisions. Since Kenya adopted the new
constitution in August 2010, U.S. support for its implementation has
focused on continued civic education, electoral reform, and conflict
mitigation and has not addressed abortion.
U.S.-Funded Civic Education Sometimes Addressed Abortion-Related
Provisions:
USAID-funded civic education sought to inform Kenyans on the general
contents of the proposed constitution, and sometimes addressed the
abortion-related provisions. According to some of the U.S.-funded
subrecipients we spoke to, educating the public on the contents of the
constitution was necessary because many Kenyans were unaware of the
actual contents of the constitution as they had not read the document
or had heard misleading rumors about it. USAID did not give any awards
for civic education specifically on the abortion-related provisions of
the constitution; however, subrecipients sometimes conducted civic
education on these provisions because they were commonly
misunderstood. For example, some subrecipients told us that
participants in their civic education forums came to the events with
the understanding that the proposed constitution would allow
unrestricted access to abortion. Furthermore, most subrecipients
indicated that they addressed the abortion-related provisions in
response to questions from participants at their civic education
events.
USAID funded 124 subrecipients to provide assistance related to
constitutional reform, including civic education. To determine which
subrecipients may have addressed the abortion-related provisions in
their civic education forums, we reviewed all award documents[Footnote
10] and conducted an extensive media search on each subrecipient to
identify those most likely to have addressed the issue of abortion
(see appendix I for a complete discussion of our methodology). Based
on these criteria, we identified and interviewed 24 subrecipients.
[Footnote 11] Four of these subrecipients told us that they did not
address abortion at all during their civic education forums. The
remaining 20 subrecipients told us that their facilitators addressed
the proposed constitution's abortion-related provisions in one or more
of the following ways:
* Reading the text of the provisions. More than half of the
subrecipients told us that when questions about abortion arose, they
responded by reading aloud the text of the Right to Life article,
which stated, "(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."[Footnote 12] Some
subrecipient civic education materials addressed abortion and, in all
but one case, did so by citing the Right to Life article.[Footnote 13]
* Indicating future legislation might be needed. Some subrecipients
explained to civic education participants that, in their opinion,
future legislation and judicial decisions would be required in order
to fully interpret and implement the abortion-related provisions of
the proposed constitution. According to a few of these subrecipients,
this legislation would be based on the existing law.[Footnote 14]
* Addressing undefined terms. Some subrecipients we interviewed who
addressed the abortion-related provisions went beyond reciting the
text of the provisions and gave examples to try to clarify undefined
terms. For instance, in attempting to answer questions about emergency
situations in which an abortion might be legal, two subrecipients told
us they gave the example of an ectopic pregnancy.[Footnote 15] More
than half of the subrecipients told us civic education participants
asked what the term "trained health professional" meant in order to
understand who would be able to authorize an abortion. A few of these
subrecipients told us they had legal and medical experts on hand to
explain the term.[Footnote 16]
No Indication That U.S.-Funded Civic Education Cited Abortion as a
Rationale to Vote for or against the Constitution:
While some U.S.-funded civic education subrecipients addressed the
abortion-related provisions of the constitution, we did not find any
indication that U.S.-funded award recipients or subrecipients cited
the provisions as a rationale to vote for or against the constitution.
We conducted an extensive search of U.S., Kenyan, and other
international media sources for any possible mention of abortion in
relation to Kenya and the constitution made by any award recipient or
subrecipient. In addition, we reviewed all award documents. Neither
our media search nor our document review revealed any information
indicating that U.S.-funded award recipients or subrecipients cited
the abortion-related provisions as a rationale to vote for or against
the constitution.[Footnote 17]
Moreover, in our interviews with the 24 subrecipients we identified as
being most likely to have addressed abortion, we found no indication
that any cited the abortion-related provisions as a rationale to vote
for or against the constitution. Half of the subrecipients we
interviewed told us that they conducted their civic education in an
objective manner, regardless of the issue at hand. Furthermore, none
of the subrecipients we spoke with told us they had ever used abortion
as a rationale to convince Kenyans to vote for or against the
constitution.
U.S.-Funded Technical Assistance Included Advice on the Draft
Constitution's Abortion-Related Provisions:
U.S.-funded award recipients provided technical assistance to Kenyan
organizations involved in the constitutional reform process,[Footnote
18] which included providing advice on the abortion-related provisions
of the draft constitution to the COE, the nongovernmental entity
charged with drafting the constitution. The International Development
Law Organization (IDLO), the award recipient that provided technical
assistance to the COE, did so at the request of the COE.[Footnote 19]
This assistance included contracting a consultant to convene a
selected group of international scholars to produce reports analyzing
the text of the entire draft constitution at various stages for the
COE. While the COE indicated to IDLO that it generally considered
IDLO's advice when revising the draft constitution, we were unable to
confirm whether the COE changed the Right to Life article based on
IDLO advice.[Footnote 20] In remarking on the first and second drafts
of the constitution, IDLO commented on the Right to Life article and
abortion in the following ways (see fig. 1).
* IDLO report on the first draft constitution. The COE published the
first draft constitution in November 2009 and subsequently called for
comments from the public. During this comment period, IDLO provided
the COE analysis on the entire draft constitution, including advice on
the issues of fetal rights and abortion, though the draft had not
mentioned either issue at this point. Specifically, the IDLO report
advised that the COE might consider adding language to make clear that
the fetus lacks constitutional standing, and that the rights of women
under these articles therefore take priority. IDLO also provided
examples of countries whose courts have held that fetal rights to life
serve as a partial barrier to the ability of national legislatures to
protect the right to reproductive dignity via the legal right of
access to abortion. The IDLO report went on to state that "given the
de facto decriminalization of access to abortion in Kenya, and the
health risks to women in Kenya associated with the current system of
abortion provision, and the absence of any express intention to
disturb the current situation, it also seems quite feasible that in
the coming years, the Kenyan Parliament may wish to take such
measures. One way to handle this would be to modify [the constitution]
to make clear that a person is a human being who has been born." The
COE's second draft did not include IDLO's suggested revisions.
* IDLO report on the second draft constitution. The COE produced a
second draft in early January 2010. Later that month, the PSC provided
recommendations on this second draft, including adding clauses to
clarify that "the life of a person begins at conception," and that
"abortion is not permitted unless in the opinion of a registered
medical practitioner, the life of the mother is in danger." IDLO
commented on the draft that included the PSC's recommendations,
indicating that the language on abortion was unnecessarily restrictive
and lacking international precedent. For example, the report commented
that "even understanding the powerful feelings invoked on all sides of
the abortion issue, the omission of a 'health of the mother' exception
in this provision seems overbroad." In addition to receiving IDLO's
comments, the COE reported that it had extended discussions with the
PSC and members of the medical community on the draft Right to Life
article during January and February 2010. The COE's final draft
constitution included an exception for allowing abortion when "the
life or health of the mother is in danger."
Figure 1: IDLO Advice and Comments to the COE on the Right to Life
Article in Kenya's Constitution:
[Refer to PDF for image: illustration]
Draft of constitution: Version 1:
11/2009 – Committee of Experts (COE): 1. ’Every person has the right
to life; 2. A person shall not be arbitrarily deprived of life.“
Released publicly;
Advice and comments: Advice from International Development Law
Organization (IDLO): 12/2009: IDLO gives advice on issues of fetal
rights versus rights of the mother. Suggests COE consider defining
that a person is a human being who has been born.
Draft of constitution: Version 2 (incorporating IDLO's advice):
1/2010 – COE: 1. ’Every person has the right to life; 2. A person
shall not be arbitrarily deprived of life.“
Released publicly;
Advice and comments: Comments from Parliamentary Select Committee
(PSC): 1/2010: PSC suggests the constitution should specify that life
begins at conception and that abortion is illegal unless a registered
medical practitioner determines that the life of the mother is in
danger.
Comments from IDLO on version incorporating PSC‘s comments: 2/2010:
IDLO comments that the PSC's wording is unnecessarily restrictive and
lacks meaningful global precedent. Also comments that omitting an
exemption for the health of the mother may increase maternal mortality
in many parts of Kenya, given the status of health care.
Draft of constitution: Version 3 (final) (incorporating PSC's comments
and IDLO's comments):
2/2010 – COE: 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 need for emergency
treatment, or the life or health of the mother is in danger, or if
permitted by any other written law.“
Source: GAO analysis of COE and IDLO information.
Note: IDLO provided advice and comments on the Right to Life article
in the context of analyzing the text of the entire draft constitution.
[End of figure]
USAID officials told us they were not aware of the advice and comments
in these IDLO reports until after the COE had drafted the final
constitution and the National Assembly had approved it for a
referendum vote. USAID awarded IDLO a noncompetitive grant based on
the recommendation of the COE, under which IDLO provided technical
assistance. As we have previously reported, in contrast to other USAID
funding mechanisms, typically under a grant agreement USAID has no
substantial involvement in the implementation of the work.[Footnote
21] IDLO's description of program activities, as established in the
grant agreement and as agreed upon with USAID, included addressing
general topics such as the Bill of Rights, but did not specifically
mention the issue of abortion. USAID officials told us that oversight
of the IDLO grant included requiring and reviewing an activity
approval document, collecting and reviewing quarterly program reports,
and calling IDLO to obtain clarification on the work it had conducted.
The USAID official responsible for managing this grant told us that
IDLO submitted the required quarterly program reports in a timely
manner, with copies of its reports to the COE submitted as
attachments, including those commenting on the constitution's abortion-
related provisions. She indicated, however, that she had not fully
read the attachments until the USAID IG inquiry brought them to her
attention in mid-2010.
U.S. Support for Implementation Does Not Address Abortion:
Since Kenya adopted the new constitution in August 2010, U.S. support
for its implementation has focused on continued civic education,
electoral reform, and conflict mitigation leading up to the 2012
national elections and has not addressed abortion. Senior State and
USAID officials told us that U.S. assistance focuses on electoral
reform and conflict mitigation because they are essential to holding
fair, nonviolent elections in 2012. In addition, according to key U.S.
officials we interviewed and the vice-chair of the Kenyan
parliamentary committee overseeing the constitution's implementation,
Parliament is unlikely to address any legislation that might affect
the abortion-related provisions before 2013. The U.S. officials we
interviewed also said that the Kenyan government has not asked for
assistance with implementing the Right to Life article of the
constitution, and the United States has not provided any. Furthermore,
the officials emphasized that State and USAID have no plans to provide
such assistance.
Neither State nor USAID Has Clear Guidance on the Types of Activities
Prohibited under the Siljander Amendment:
Neither State nor USAID has guidance on complying with the Siljander
Amendment that includes a formal definition of lobbying, which some
agency officials and award recipients indicated makes it difficult for
them to determine what types of activities are prohibited. State has
not developed any guidance on this legislative prohibition, and while
USAID has developed some in the context of its family planning
compliance resources, it has no specific guidance on the kinds of
activities prohibited. Without clear guidance on the Siljander
Amendment, some of the State and USAID officials and award recipients
we interviewed said that they were unclear as to what specific
activities were prohibited.
Neither State nor USAID Has Formally Defined Lobbying for the Purposes
of the Siljander Amendment:
The Siljander Amendment is an appropriations provision first enacted
in 1981 that appears in the annual Department of State, Foreign
Operations, and Related Programs Appropriations Acts, stating that
"none of the funds made available under this Act may be used to lobby
for or against abortion." The term "lobby" is not defined in the
legislation, and neither State nor USAID has developed a formal
definition of lobbying in this context.
Attorneys in State's Office of the Legal Adviser told us they are
available to provide legal advice for staff on the Siljander
Amendment, although they do not provide a formal definition of
lobbying. The attorneys said the language in the amendment is adequate
to inform nonlegal State officials that a restriction exists. They
also indicated that when a proposed activity relates to taking a
position for or against abortion, the office would review the specific
facts to determine whether the activity could be conducted consistent
with the law. Furthermore, they said the office preferred to provide
advice on a case-by-case basis rather than having nonattorneys
interpreting legal provisions.
Similarly, USAID attorneys told us they have not developed a formal
definition of lobbying in the context of the Siljander Amendment, but
they said they inform staff about the restriction and advise staff to
seek legal counsel if they have questions regarding whether a
particular activity complies with the law. USAID attorneys told us,
however, that they developed an informal definition of lobbying with
respect to the Siljander Amendment in the summer of 2010 to assist
them in conducting their legal assessments in response to the USAID IG
inquiry about U.S. assistance for Kenyan constitutional reform. They
said the definition is an internal working one that is not formally
documented anywhere, and it is not readily accessible to staff outside
of the Office of the General Counsel.[Footnote 22] The attorneys went
on to say that they used this definition to determine that IDLO, in
providing advice to the COE on the abortion-related provisions of the
Right to Life article, did not violate the Siljander Amendment. In
making this determination, USAID officials said they considered the
following factors:
* USAID had given IDLO a noncompetitive grant at the recommendation of
the COE.
* IDLO coordinated a process in which the COE received advice that it
specifically requested.
* The comments on the abortion-related provisions were made in the
course of a clause-by-clause review of the entire constitution, and as
such were neither emphasized over other comments nor were they a
direct, explicit appeal for a change in the legal status of abortion
in Kenya.
* The Right to Life article in the draft constitution did not
represent a change in national law, but rather reflected existing
Kenyan and commonwealth law regarding abortion, according to a Kenyan
attorney who provided a legal opinion to USAID in 2010.
* The COE was a nongovernmental entity, and as such, USAID officials
maintain that IDLO did not provide assistance to the Kenyan government.
State Has Not Developed Guidance on Compliance with the Siljander
Amendment:
State has no specific guidance or training on the Siljander Amendment.
Although a senior political officer in the U.S. embassy in Nairobi
recalled having heard about the Siljander Amendment informally while
in Washington, most State officials we spoke to said that they had not
heard of it prior to the State IG's special review in 2010. Political
officers in Nairobi, including the Deputy Chief of Mission, also told
us they did not receive guidance on the Siljander Amendment during the
regular embassywide meetings leading up to the referendum, and the
ambassador told us that he had not received guidance from Washington.
USAID's Limited Guidance on the Siljander Amendment Does Not Document
the Types of Activities Prohibited:
USAID has developed various family planning compliance resources,
primarily for health and legal officers, which includes some guidance
on the Siljander Amendment. These resources, however, do not provide
guidance on the kinds of activities prohibited under the Siljander
Amendment. Some examples include the following.
* Family planning compliance team. USAID has a family planning
compliance team that consists of advisers from the Bureau for Global
Health, the regional bureaus, and the Office of the General Counsel.
The team provides advice to field staff and assists them with
developing tools and resources to facilitate monitoring of compliance
with family planning requirements, including the Siljander Amendment.
Team members are available to field questions on compliance as they
arise, and they hold an annual teleconference with each Mission's
health, legal, and contracting staff to discuss family planning
requirements and review specific concerns. The team's written
materials distributed to staff do not provide any description of the
types of activities that Siljander prohibits.
* Family planning compliance training. USAID has offered compliance
training for its health and legal officers on family planning-related
legislation for years, according to USAID officials. In addition to
routine training both in Washington and in the field, USAID has
offered a computer-based course on family planning requirements since
2006. USAID officials told us they expect health officers to take the
computer-based course or attend a live training session on the family
planning legislative requirements annually. None of the training
materials, however, describes the kinds of activities that might
constitute lobbying under the Siljander Amendment. After the USAID IG
inquiry in 2010, USAID began to incorporate the Kenyan constitutional
reform example as an oral case study in some of its trainings to alert
staff that activities without a family planning focus could be subject
to the Siljander Amendment.
* Global Health intranet resources. USAID's internal Global Health
website offers a variety of family planning compliance tools, such as
a chart of all family planning-related legislation, key documents
related to family planning requirements, and a compliance plan
template. In general, any mention of the Siljander Amendment within
these resources does little more than repeat the amendment's text. The
compliance plan template warns staff that non-family planning programs
could violate family planning-related legislation, but none of the
materials on the intranet describes the types of activities that might
be prohibited under Siljander.
USAID began disseminating these compliance resources beyond health and
legal officials in mid-2010, when it offered some training and general
written guidance to other agency officials. A member of the family
planning compliance team gave a presentation on abortion-related
requirements at the annual DCHA conference for democracy and
governance officers in June of both 2010 and 2011.[Footnote 23]
Additionally, DCHA officials sent e-mails to all DCHA staff in late
July 2010 and in March 2011, alerting them to the existence of the
Siljander Amendment and advising them to seek legal counsel if they
are unsure whether a particular activity complies with the law.
Neither e-mail, however, details the types of activities that might
constitute lobbying for or against abortion. USAID officials
acknowledged in the e-mails that determining whether a particular
activity complies with the Siljander Amendment is complex, and
officials later told us that they did not add more detailed
descriptions of the types of activities that might violate the
amendment, because they do not want staff to undertake their own legal
analysis.
USAID award recipients have access to some of USAID's family planning
compliance resources, including the computer-based training, but these
resources do not include examples of the types of activities
prohibited under the Siljander Amendment. Two award recipients told us
that USAID discussed the Siljander Amendment with them in June 2010--
after the USAID IG inquiry had begun. One award recipient, who managed
more than half of the subrecipients, told us it in turn reminded its
subrecipients to be objective and remain neutral when discussing the
proposed constitution in civic education forums. USAID also requires
its award recipients and their subrecipients to abide by the Siljander
Amendment through the inclusion of mandatory language prohibiting
abortion-related activities in all awards.[Footnote 24] The language
reads in part, "No funds made available under the award will be used
to finance, support, or be attributed to . . . lobbying for or against
abortion." The language, however, does not specify what types of
activities would constitute lobbying with U.S. assistance funds and
would thus be prohibited. USAID officials told us this is consistent
with other mandatory prohibition language in USAID awards.
Furthermore, we found that the mandatory language prohibiting abortion-
related activities was missing from some of the awards for Kenyan
constitutional reform. (See appendix III for a discussion of
compliance with the requirement to include the mandatory language in
each award related to Kenyan constitutional reform.)
Some State and USAID Officials and Award Recipients Unclear on the
Types of Activities Prohibited:
We found that without written guidance on the types of activities that
might constitute lobbying for or against abortion, some key State and
USAID officials as well as award recipients are unclear on what the
Siljander Amendment prohibits them from doing. For example, the State
political officer responsible for tracking the progress of the Kenyan
constitutional reform process in 2010 told us that when he asked for
guidance on the Siljander Amendment, officials in the Office of the
Legal Adviser replied that they would not interpret it for him. As a
result, he said he still did not know what activities would violate
the legislative prohibition. An attorney in the Office of the Legal
Adviser told us that the office's consistent approach is to work with
nonlegal State officials to determine what activities are proposed and
to advise whether those activities are allowable. She said that with
respect to legislative restrictions on the use of funding, the
specific facts are often key, and abstract legal interpretations can
be misapplied. Thus, she said the office advises nonlegal State
officials on how to apply the law based upon specific facts as to how
funds would be used for particular U.S.-funded activities. However,
all of the State officials we interviewed in Nairobi said that
guidance on what lobbying means in the context of the Siljander
Amendment would be useful to help them avoid any potential violation
of the amendment in other situations. In addition, DCHA officials we
interviewed in Kenya told us that even after the USAID IG inquiry they
do not know what types of activities constitute lobbying and therefore
would be a violation of the Siljander Amendment. Moreover, the two
award recipients who together have overseen over 70 percent of the
subrecipients for the constitutional reform process told us they do
not understand the Siljander Amendment and that clearer guidance on
what constitutes lobbying under the amendment would be useful.
Conclusions:
The United States has long determined that it is vitally important to
support nations in undertaking democratic reforms, such as Kenya's
constitutional reform. With the current political upheavals in parts
of the Middle East and Africa, it is likely that several nations will
either establish new constitutions or revise existing ones in the near
future. The U.S. government has already expressed its willingness to
assist with these and other kinds of democratic reforms. State's
political officers and USAID's DCHA officers would be at the forefront
of that assistance. However, constitutional reform can involve a wide
spectrum of issues, including abortion and its corresponding U.S.
legal restrictions, which are unfamiliar to some U.S. officials who
deal with democracy and governance issues. Without clear guidance,
including a description of what activities would constitute lobbying
overseas, U.S. officials and implementing partners--award recipients
and subrecipients--risk becoming involved in activities that may be
interpreted by some as lobbying for or against abortion. Similarly,
they may miss appropriate opportunities to provide assistance for fear
they may potentially violate this prohibition.
Recommendation for Executive Action:
To help ensure the actions of U.S. officials and implementing partners
comply with the legislative prohibition against using certain U.S.
assistance funds to lobby for or against abortion, we recommend that
the Secretary of State and the USAID Administrator develop specific
guidance on compliance with the Siljander Amendment, indicating what
kinds of activities may be prohibited, disseminate this guidance
throughout their agencies, and make it available to award recipients
and subrecipients.
Agency Comments and Our Evaluation:
We provided a draft of this report to State and USAID. We received
written comments from both agencies, which we have reprinted in
appendixes IV and V, respectively. The agencies also provided
technical comments, which we incorporated throughout the report, as
appropriate.
State partially agreed with our recommendation. Specifically, State
believe that informing employees throughout the department of the
Siljander Amendment would be useful. State implied, however, that such
information would not go beyond providing the text of the Siljander
Amendment and encouraging staff to seek appropriate guidance on
whether proposed activities are subject to the amendment. State does
not believe that developing and disseminating specific guidance
indicating the types of activities that may be prohibited is
appropriate. We disagree. While we respect that State would like its
officials in the field to seek guidance on whether an activity is
permitted under the Siljander Amendment by presenting specific facts
on a case-by-case basis, we do not believe that officials will
necessarily know to seek such guidance if they are unaware of the
types of activities that may raise compliance concerns. We believe
that guidance providing examples of the types of activities that may
violate the Siljander Amendment would help officials in the field
better understand how the amendment affects their activities overseas
and would help them better recognize those instances when they should
seek guidance from the relevant State policy or legal office regarding
a proposed activity.
USAID agreed with our recommendation and indicated that it would
develop additional guidance for USAID and award recipient and
subrecipient staff on the Siljander Amendment. At the same time, USAID
took issue with our graphic representation of the development of the
Right to Life article (fig. 1 on p. 13), expressing the view that it
dramatically overstated the importance of IDLO's comments in the
evolution of that article. In particular, USAID noted that the figure
did not reflect the advice and comments COE received from other
sources, and that it suggested a causal link between IDLO's comments
and revisions to the draft constitution. We have revised the title of
the figure to more clearly indicate that it focuses on IDLO's advice
and comments to the COE. This does not mean that IDLO was the only
entity providing advice. In fact, we state in the text immediately
preceding the figure that others also provided advice and comments on
the Right to Life article. The figure appropriately focuses on IDLO's
advice and comments, because IDLO was a USAID award recipient and,
thus, a subject of our review. We disagree that the figure suggests a
causal link between IDLO's advice and comments and the COE's revisions
to the draft constitution. The figure shows the text of the Right to
Life article as it appeared in each draft version and IDLO's input on
that text, and we clearly state in the text preceding the graphic that
we were unable to confirm whether COE changed the text based on IDLO's
input.
As agreed with your offices, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 30 days
from the report date. At that time, we will send copies of this report
to the Secretary of State, the USAID Administrator, and interested
congressional committees. The report will also be available at no
charge on the GAO Web site at [hyperlink, http://www.gao.gov]. If you
or your staff have any questions concerning this report, please
contact me at (202) 512-3101 or williamsbridgersj@gao.gov.
Contact points for our Office of Congressional Relations and Public
Affairs may be found on the last page of this report. Key contributors
to this report are listed in appendix VI.
Signed by:
Jacquelyn L. Williams-Bridgers:
Managing Director:
International Affairs and Trade:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
To describe any involvement that U.S. officials have had in the Kenyan
constitutional reform process regarding the constitution's abortion-
related provisions, we conducted the following work.
* We used the 2010 Department of State (State) and the U.S. Agency for
International Development (USAID) Inspector General (IG) reports on
the same topic for our requesters as a foundation for our methodology.
Specifically, we reviewed the reports for key findings and statements.
We also spoke to the IG teams that produced the reports in order to
identify key officials to interview and to clarify each team's
methodologies.
* We conducted an extensive review of Kenyan, international, and U.S.
media to identify any public statements made by key State, USAID, and
other Administration officials that mentioned the constitutional
reform process, abortion, or reproductive health. Our review used the
Nexis research database, which searched Kenyan media sources including
Kenya Broadcast Corporation, The Nairobi Star, The Nation, The People,
and The Standard and international and U.S. sources including Africa
News, Associated Press, BBC, Federal News Service, Global Legal
Monitor, Los Angeles Times, States News Service, The East African, The
Monitor (Uganda),The Washington Times, and Xinhua. Search terms
included any combination of the official's full name, "Kenya,"
"constitution," "abortion," "reproductive," and "termination of
pregnancy." For most officials, this search covered the period from
May 23, 2008--the date that the Kenyan government signed the Reform
Agenda--through late March 2011. However, the number of results for
President Obama, Vice President Biden, and Secretary of State Clinton
exceeded the number of results that Nexis can return. We therefore
limited the searches for these officials to the period from July 12,
2010--the date that the USAID IG submitted its preliminary report on
support for Kenya's constitutional reform to the requesters--through
late March 2011. We also searched the Congressional Quarterly,
Congressional Record, the transcripts database of Lexis Nexis, and
executive branch websites using similar search terms for statements
made by officials during the period from January 2009 through January
2011. These results included transcripts of congressional hearings,
State Department press releases, and coverage of diplomatic speeches
and comments.
* We interviewed key State and USAID officials in Washington, DC, and
we traveled to Kenya to interview key officials at the embassy in
Nairobi to obtain additional data and to discuss their involvement in
the reform process, particularly as regards the issue of abortion. We
interviewed State officials including the former ambassador, the
Deputy Chief of Mission, the Political Counselor and other relevant
political officers, and officials from the Bureau of African Affairs
and the Office of the Legal Adviser. We also interviewed USAID
officials including the Deputy Mission Director and officials from the
Offices of the General Counsel and Acquisition and Assistance, and
from the Bureaus for Africa, Global Health, and Democracy, Conflict,
and Humanitarian Assistance, including the Offices of Transition
Initiatives and Democracy and Governance. These officials have been
responsible for managing and monitoring U.S. support for Kenya's
constitutional reform process. In addition, we requested an interview
with the chair of the Parliamentary Select Committee (PSC), which
assisted Parliament in the constitutional reform process, but embassy
officials were unable to contact him. We did, however, interview
another key parliamentarian who sat on the PSC and is the vice-chair
of the Committee for the Implementation of the Constitution to discuss
U.S. officials' involvement in the reform process regarding the
abortion-related provisions of the constitution.
To describe the support provided by U.S.-funded award recipients for
the constitutional reform process relating to the constitution's
abortion-related provisions, we conducted the following work.
* We asked the USAID IG and other USAID officials to identify the
USAID award recipients and subrecipients that have conducted
constitutional reform work in Kenya. The USAID IG provided us with a
list of award recipients and subrecipients who had received U.S.
funding through the date of the referendum, August 4, 2010. USAID
officials notified us of some new awards and subawards that began in
the implementation phase after the referendum, and award recipients
provided us with information about an additional implementation award
recipient as well as other implementation subawards. Together these
lists identified 9 award recipients, who together received 12 awards,
and 124 subrecipients, who together received 182 smaller awards.
* We reviewed the related USAID IG reports for key findings and data
on USAID award recipients. We also spoke to the IG team that produced
the reports in order to identify key officials to interview and to
clarify the team's methodology.
* We conducted an extensive review of Kenyan and international media
on all 9 USAID award recipients and their 124 subrecipients. This
media search sought to identify any statements that the award
recipients or subrecipients made mentioning the constitutional reform
process, abortion, or reproductive health. Like our media search for
relevant statements from U.S. officials, this search covered similar
Kenyan and international publications, used similar search terms, and
covered the period from May 23, 2008 through mid-February 2011 for
award recipients and subrecipients identified by the USAID IG.
However, for award recipients and subrecipients who started their work
after the USAID IG produced its report, the search covered the same
Kenyan and international publications, but we adjusted our search
terms to exclude the term "constitution" since the constitution had
already been enacted and adjusted our search period to cover the
period for which these awards were effective.
* We obtained and reviewed all award documentation for each USAID
award recipient and subrecipient performing constitutional reform work
in Kenya. These documents included the base award and any
modifications, statements of work and project descriptions, progress
reports, final reports, and any supplementary materials produced under
the award.
* We interviewed relevant USAID officials in Washington, DC, and in
Kenya. These officials included the USAID Deputy Mission Director and
officials from the Offices of the General Counsel and Acquisition and
Assistance, and from the Bureaus for Africa, Global Health, and
Democracy, Conflict, and Humanitarian Assistance, including the
Offices of Transition Initiatives and Democracy and Governance. These
officials have responsibility for managing USAID's awards and for
planning, implementing, and overseeing USAID's Kenyan constitutional
reform awards.
* We interviewed all 9 award recipients--in Kenya if they still had an
office there, or in Washington, DC. In addition to using a standard
set of questions about award recipient activities and guidance
received on complying with the Siljander Amendment, we added specific
interview questions based on our media search results and document
review.
* To identify which of the 124 subrecipients to interview during our
limited time in Kenya, we analyzed the results of our media search and
document review to determine which were most likely to have addressed
the issue of abortion during the period leading up to the referendum.
Our media search yielded more than 6,500 results, all of which we
reviewed in order to identify those subrecipients who had publicly
commented on abortion-related topics. These results identified 13
subrecipients whose names had appeared in media articles that also
included at least one of our search terms. Our document review
identified 26 subrecipients whose award documents mentioned having
discussed abortion, "contentious issues," reproductive health, or
women's issues during the period leading up to the referendum. Our
document review also showed that of the 13 subrecipients identified
through our media search, 6 subrecipients used their USAID funds to
conduct civic education on topics that were unlikely to address
abortion at all, such as land reform or decentralization. We therefore
determined that we should request interviews with the remaining 7
subrecipients identified through our media search, as their activities
were likely to be most relevant to our review. To come to this
determination, one GAO analyst identified those subrecipients whose
activities were most likely to be relevant to our review, and another
GAO analyst independently reviewed them, resolving any disagreements
in the determinations through discussion. We also determined that we
should request interviews with all 26 subrecipients identified through
our document review in order to clarify how they had addressed
abortion during their U.S.-funded activities, if at all. Given some
overlap between the 7 subrecipients identified through the media
search and the 26 identified through our document review, and 1
additional subrecipient we identified based on professional judgment,
we identified a total of 29 subrecipients for interview.
* We requested interviews with all 29 subrecipients in Kenya that we
had identified based on our media search and document review, and we
interviewed 24 of them. Of the remaining 5 subrecipients, 4
subrecipients could not meet with us because of scheduling conflicts.
The remaining subrecipient, the Committee of Experts, is now a defunct
entity and no former executive officers would meet with us or answer
written questions. During our subrecipient interviews, we used a
standard set of questions about activities and guidance received on
complying with the Siljander Amendment. In addition, we added specific
interview questions for individual subrecipients based on issues that
we identified through our media search results or document review.
To assess the extent to which agencies have developed and implemented
guidance to help ensure compliance with the Siljander Amendment, which
prohibits using certain U.S. assistance to lobby for or against
abortion, we conducted the following work:
* We reviewed USAID program and procurement guidance and policies, as
well as other relevant documents. This helped us determine what
guidance on the Siljander Amendment USAID has available or requires
for agency officials, award recipients, and subrecipients.
* We obtained and analyzed award documentation for all USAID award
recipients performing constitutional reform work, as well as their
subrecipients, to determine which awards contained USAID's mandatory
language provision prohibiting abortion-related activities. USAID
considers this language to be a form of guidance on complying with the
Siljander Amendment and requires that all assistance and acquisition
awards contain the language. Award recipients, in turn, are required
to pass this language on to awards with any subrecipients. To
understand why this language was not included in some awards for the
Kenyan constitutional reform process, we conducted interviews with
responsible officials in USAID's Offices of the General Counsel and
Acquisition and Assistance, and the Bureau for Democracy, Conflict,
and Humanitarian Assistance, including the Offices of Transition
Initiatives and Democracy and Governance.
* We interviewed high-level State and USAID officials about their
agency's guidance on complying with the Siljander Amendment. In
Washington, we spoke with responsible officials in State's Bureau of
African Affairs and the Office of the Legal Adviser, and interviewed
the former U.S. ambassador to Kenya. We also spoke with responsible
officials in USAID's Offices of the General Counsel and Acquisition
and Assistance, and the Bureaus for Africa and Democracy, Conflict,
and Humanitarian Assistance. Additionally, we traveled to Kenya to
interview key officials at the embassy and mission who are responsible
for managing and monitoring U.S. support for Kenya's constitutional
reform process. We spoke with responsible State officials including
the ambassador, Deputy Chief of Mission, Political Counselor, and
other relevant political officers. We also spoke with responsible
USAID officials including the Deputy Mission Director and officials
from the Bureaus for Global Health and Democracy, Conflict, and
Humanitarian Assistance, including the Offices of Transition
Initiatives and Democracy and Governance.
* We also discussed guidance with the 9 award recipients and 24
subrecipients we interviewed, and we documented their responses given
concerning any guidance USAID had given them regarding compliance with
the Siljander Amendment.
The information on foreign law in this report does not reflect our
independent legal analysis, but it is based on interviews and
secondary sources.
We conducted our work between November 2010 and October 2011 in
accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objectives.
[End of section]
Appendix II: Chronology of Constitutional Reform in Kenya:
Kenya has had a long history of attempted constitutional reform.
Before passing the new constitution in August 2010, Kenya had amended
its original constitution several times since gaining independence
from the United Kingdom in 1963. For a chronological list of
constitutional reform-related events, see figure 2.
Figure 2: Timeline of Constitutional Reform in Kenya, 1963-2010:
[Refer to PDF for image: timeline]
1963:
Kenya gains independence and adopts constitution.
1964:
Kenya amends the constitution, changing from a parliamentary
governance system to a presidential system.
1982:
Kenya amends the constitution, making the government a one-party state.
1991:
Kenya amends constitution, allowing for multiparty system.
1997:
The Constitution of Kenya Review Act was published after intense
negotiations between the government and the opposition, according to
the COE.
2002:
Constitution of Kenya Review Commission publishes a draft constitution
and calls for a National Constitutional Conference, but reform stops
when the President suspends Parliament in late 2002.
2004:
Bomas draft constitution adopted. COE, Kenyans did not vote upon this
version because the process by which it was drafted was declared
unconstitutional.
2005:
Wako draft constitution adopted. Fifty-seven percent of Kenyans voted
against this version in a referendum. According to the COE,
politicians involved in this referendum incited ethnic and tribal
tensions, paving the way for the postelectoral violence of 2007.
12/27/2007:
Disputed presidential elections, which lead to postelectoral violence
that kills more than 1,300 Kenyans and displaces approximately 350,000
more.
2/28/2008:
African Union mediates the National Accord and Reconciliation Act, an
agreement between Kenya‘s President and Prime Minister to form a
coalition government.
5/23/2008:
The coalition government signs the Kenya National Dialogue and
Reconciliation Statement of Principles on Long-Term Issues and
Solutions, an agreement to address the long-standing issues that led
to the postelectoral violence through constitutional, institutional,
and legal reforms, among other things.
12/22/2008:
Kenya‘s National Assembly passes the Constitution of Kenya Review Act
of 2008, which provides a legislative road map for constitutional
reform, establishes COE to draft the new constitution and PSC to
assist the National Assembly in the constitutional review process, and
calls for a national referendum on the new constitution.
2/23/2009:
Members of the COE appointed.
11/17/2009:
COE produces the first version of the constitution.
1/8/2010:
After reviewing more than 1 million public comments, COE produces the
second version of the constitution.
2/2/2010:
COE receives comments from the PSC on the second version of the
constitution.
2/23/2010:
After reviewing comments from the PSC, the COE produces the third and
final version of the constitution.
4/1/2010:
Kenya's National Assembly approves final version of the constitution
without amendments.
8/4/2010:
Kenyans pass the new constitution in a national referendum.
8/27/2010:
New constitution enacted.
Source: GAO analysis of Committee of Experts information.
[End of figure]
[End of section]
Appendix III: Status of Compliance with the Requirement to Include
USAID's Mandatory Provision Prohibiting Abortion-Related Activities in
Awards:
USAID requires language prohibiting abortion-related activities in all
assistance and acquisitions awards.[Footnote 25] The mandatory
provision language reads in part, "No funds made available under the
award will be used to finance, support, or be attributed to . . .
lobbying for or against abortion."[Footnote 26] USAID officials told
us that while the provision language had been included in family
planning awards for decades, it became a USAID requirement for all
assistance awards in May 2006 and for all acquisition awards in June
2008.
Of the 12 awards GAO identified that USAID gave for the constitutional
reform process in Kenya through June 2011, 5 were not in compliance at
some point with the requirement to include the abortion-related
language in awards.[Footnote 27] Of these 5 awards, 2 were associate
awards from a leader award and 2 were task orders placed from an
indefinite delivery/indefinite quantity (IDIQ) contract. In those
instances, according to USAID officials, all of the mandatory
provisions included in either the leader award or the IDIQ contract
are assumed to flow down to the associate award or task order,
respectively--without the need to be reprinted. However, in each of
these 4 awards, the leader award or IDIQ contract was signed before
the abortion-related language requirement took effect and did not
include the language. The associate awards and task orders, therefore,
did not include the language either.[Footnote 28] The abortion-related
language, however, had not yet become a requirement when the two task
orders themselves were signed. As shown in figure 3, these two
acquisition awards were not modified when the abortion-related
language requirement took effect. USAID contracting officials we
interviewed told us the omission of the abortion-related language from
the fifth award was likely due to human oversight.[Footnote 29]
Figure 3: Compliance Status of Kenyan Constitutional Reform Process
Awards with the USAID Language Requirement Prohibiting Abortion-
Related Activities:
[Refer to PDF for image: horizontal bar graph]
USAID Language requirement for assistance awards: 5/2006.
USAID Language requirement for assistance awards: 6/2008.
Constitutional referendum: 8/4/2010.
Award Type:
Assistance: Nongovernmental organizations:
CEPPS-1[A]:
Noncompliant with USAID language requirement: 5/2006-8/4/2010;
Compliant with USAID language requirement: 8/4/2010; to early 2001;
Inclusion date of USAID language requirement: 8/4/2010.
CEPPS-2:
Compliant with USAID language requirement: mid-2011 to mid 2014;
Inclusion date of USAID language requirement: mid-2011.
KPMG:
Compliant with USAID language requirement: early 2010 to early 2011;
Inclusion date of USAID language requirement: early 2010.
PACT:
Noncompliant with USAID language requirement: mid-2006 to 8/4/2010;
Compliant with USAID language requirement: 8/4/2010 to early 2014;
Inclusion date of USAID language requirement: 8/4/2010.
SUNY-2:
Compliant with USAID language requirement: late 2009 to early 2014;
Inclusion date of USAID language requirement: late 2009.
Assistance: Public international organizations[B]:
IDLO:
Compliant with USAID language requirement: late 2009 to mid-2010;
Inclusion date of USAID language requirement: late 2009.
IDLO-2:
Compliant with USAID language requirement: mid-2011 to early 2013;
Inclusion date of USAID language requirement: mid-2011.
UNDP:
Compliant with USAID language requirement: early 2010 to early 2011.
Acquisition: Nongovernmental organizations:
Chemonics:
Compliant with USAID language requirement: early 2011 to early 2013;
Inclusion date of USAID language requirement: early 2011.
DAI[C]:
Noncompliant with USAID language requirement: 6/2/2008 to mid-2010;
Compliant with USAID language requirement: early 2008 to 6/2/2008 and
mid-2010 to early 2011;
Inclusion date of USAID language requirement: mid-2010.
IFES:
Noncompliant with USAID language requirement: early 2010 to 8/4/2010;
Compliant with USAID language requirement: 8/4/2010 to early 2011;
Inclusion date of USAID language requirement: 8/4/2010.
SUNY-1[D]:
Noncompliant with USAID language requirement: 6/2/2008 to early 2010;
Compliant with USAID language requirement: early 2005 to 6/2/2008.
Note: The full names of the award recipients listed in the figure are
Consortium for Elections and Political Process Strengthening (CEPPS);
KPMG; Pact, Inc. (Pact); State University of New York (SUNY);
International Law Development Organization; United Nations Development
Programme; Chemonics International, Inc.; Development Alternatives
Incorporated (DAI); and International Foundation for Electoral Systems
(IFES).
[A] CEPPS is a consortium whose member organizations are the National
Democratic Institute, the International Republican Institute, and IFES.
[B] USAID does not require the language for non-family planning awards
to public international organizations such as IDLO or UNDP. While
USAID therefore did not include the language in the UNDP award, it
nonetheless included it in both IDLO awards.
[C] The DAI award was signed shortly before USAID began requiring the
prohibition language for acquisition awards. It therefore started out
in compliance, but then became out of compliance with the USAID
language requirement until USAID modified the award to include the
language.
[D] SUNY's acquisition award was signed before USAID began requiring
the prohibition language for acquisition awards, and it was therefore
not out of compliance with the USAID requirement until June 2008. The
award ended in March 2010, before USAID realized the language was
missing.
[End of figure]
The USAID contracting officials told us they added the mandatory
language to 4 of the awards[Footnote 30] as quickly as possible. They
did so following the USAID IG inquiry that brought the omission to
their attention in mid-2010, although in three of the four cases they
did not add the language until either the day before the August 4,
2010, referendum or afterward. According to USAID officials, the delay
in adding the language was due to the nature of the contracting
process. They told us USAID contracting officials cannot modify awards
without a requisition for modification from the technical offices,
including programmatic and financial officials. Furthermore, the
contracting officials at the Mission did not have copies of all of the
awards, particularly the IDIQ contracts, as those had been signed in
Washington. The officials told us it was time-consuming to determine
where the awards were located, whether they included the mandatory
language or not, and whether they could modify them at the Mission or
whether the contracting office in Washington had to do the
modifications. They received that information in an e-mail on July 28,
2010, 1 week before the referendum, and made the modifications shortly
thereafter.
Officials from USAID's Office of Acquisition and Assistance (OAA) told
us that USAID's new web-based procurement information system
automatically includes mandatory provisions in awards, including the
language prohibiting abortion-related activities, although the system
is not foolproof. OAA officials in Washington told us that the Global
Acquisition and Assistance System (GLAAS) procurement information
system includes award templates with standard clauses for each type of
award. They said that GLAAS generates mandatory provisions, such as
the language on prohibiting abortion-related activities, based on the
award type chosen.[Footnote 31] They went on to say that GLAAS greatly
reduces the possibility of human error in including all mandatory
provisions. The OAA officials we spoke with at the Mission agreed with
this assessment, but they also emphasized that GLAAS is not foolproof.
For example, they told us that GLAAS does not yet capture all types of
award mechanisms, nor have all USAID staff begun using GLAAS. In
addition, they said that while GLAAS automatically includes new
mandatory provisions, contracting officials can copy language from a
recently generated similar award and then upload that language into
GLAAS, bypassing the standard and mandatory inclusions the system
would otherwise make. To address this, USAID officials told us that
OAA is in the process of issuing a policy directive to require that
all contracting officials generate their award documents through GLAAS.
[End of section]
Appendix IV: Comments from the Department of State:
United States Department of State:
Washington, D.C. 20520:
September 29, 2011:
Ms. Jacquelyn Williams-Bridgers:
Managing Director:
International Affairs and Trade:
Government Accountability Office:
441 0 Street, N.W.
Washington, D.C. 20548-0001:
Dear Ms. Williams-Bridgers:
We appreciate the opportunity to review your draft report, "Foreign
Assistance: Clearer Guidance Needed on Overseas Compliance with
Legislation Prohibiting Abortion-Related Lobbying," GAO Job Code
320828.
The enclosed Department of State comments are provided for
incorporation with this letter as an appendix to the final report.
If you have any questions concerning this response, please contact
Susan Driano, Kenya Desk Officer, Bureau of African Affairs at (202)
647-8913.
Sincerely,
Signed by:
James L. Millette:
cc: GAO ” Jim Michels:
AF ” Johnnie Carson:
State/OIG ” Evelyn Klemstine:
[End of letter]
Department of State Comments on GAO Draft Report:
Foreign Assistance: Clearer Guidance Needed on Overseas Compliance
with Legislation Prohibiting Abortion-Related Lobbying (GAO-12-35, GAO
Code 320828):
Thank you for the opportunity to comment on your draft report entitled
Foreign Assistance: Clearer Guidance Needed on Overseas Compliance
with Legislation Prohibiting Abortion-Related Lobbying.
Recommendation: To help ensure the actions of U.S. officials and
implementing partners comply with the legislative prohibition against
using certain U.S. assistance funds to lobby for or against abortion,
we recommend that the Secretary of State and the USAID Administrator
develop specific guidance on compliance with the Siljander Amendment,
indicating what kinds of activities may be prohibited, disseminate
this guidance throughout their agencies, and make it available to
award recipients and subrecipients.
Response: The Department of State concurs with this recommendation
only in part. The Department agrees it would be useful to inform State
Department employees of the restriction so that they can seek
appropriate guidance from the relevant Department policy and legal
offices as to whether their proposed activities, including activities
executed through grants and contracts, are subject to this funding
restriction and will undertake to disseminate such information within
the Department. The Department does not agree that disseminating
specific guidance indicating what kinds of activities may be
prohibited is appropriate.
Determining whether activities are prohibited requires an
understanding of the specific facts of any particular case. As general
guidance cannot foresee all the relevant facts, it could result in
activities being undertaken in reliance upon the guidance without
specific legal review by the Department. The Department
prefers to take steps to broaden awareness of the provision and have
individuals seek advice on a case-by-case basis.
[End of section]
Appendix V: Comments from the U.S. Agency for International
Development:
USAID:
From The American People:
October 11, 2011:
Jacquie Williams-Bridgers:
Managing Director, International Affairs & Trade:
U.S. Government Accountability Office:
Washington, DC 20548:
Dear Ms. Williams-Bridgers:
I am pleased to provide the formal response of the U.S. Agency for
International Development (USAID) to the GAO draft report entitled
"Foreign Assistance: Clearer Guidance Needed on Overseas Compliance
with Legislation Prohibiting Abortion-Related Lobbying" (GAO-12-35).
The enclosed USAID comments are provided for incorporation with this
letter as an appendix to the final report.
Thank you for the opportunity to respond to the GAO draft report and
for the courtesies extended by your staff in the conduct of this audit
review.
Sincerely,
Signed by:
Sean C. Carroll /s/:
Chief Operating Officer:
U.S. Agency for International Development:
Enclosure: a/s.
[End of letter]
Foreign Assistance: Clearer Guidance Needed on Compliance Overseas
with Legislation Prohibiting Abortion-Related Lobbying (GAO-12-35):
Constitutional reform in Kenya has been a cornerstone of the reform
agenda endorsed by the Kenyan Coalition Government in the wake of the
violence that devastated the country following the disputed December
2007 presidential elections. The U.S. Government supports the process
of constitutional reform and, like the vast majority of Kenyans,
believes a new constitution is a critical element in laying the
foundation for deepened democracy and prosperity in Kenya. In August
2010, the Kenyan people overwhelmingly approved the referendum on the
draft constitution.
USAID has funded a broad spectrum of activities in support of the
constitutional reform process, free and fair elections, increased
transparency and efficiency in the government, and civic education and
voter registration. Following the August 2010 referendum, USAID has
continued to work with the Kenyan government and people to support the
constitutional reform process in the country.
USAID takes compliance with the abortion-related restrictions,
including the Siljander Amendment, very seriously. Over the years, the
Agency has taken a number of steps to ensure compliance with these
restrictions, such as the inclusion of mandatory standard provisions
in all Agency awards with implementing partners, the development of
live and online training materials, presentations at Agency
conferences, and the development of compliance tools and resources for
USAID and partner staff. In the past year, the Agency has also taken
steps to increase awareness of these restrictions among non-health
staff, particularly those working in the area of democracy and
governance. USAID is committed to ensuring compliance with these
restrictions and continually seeks to strengthen and refine our
existing compliance resources.
Unlike the U.S. constitution, the new Kenyan constitution is a lengthy
document containing 264 articles spanning nearly 200 pages of text.
The Right to Life article referred to in your report is one article
among hundreds in the document. As with several other sections of the
draft constitution, this particular article generated significant
discussion within and outside Kenya, and many entities ” from medical
associations to religious groups ” expressed public views on it
throughout the period leading up to the referendum. As your report
notes, however, there is no indication that U.S. officials gave an
opinion publicly on this issue or attempted to influence the
provision. While your report also correctly notes that in several
instances this article was addressed by USAID-funded implementing
partners, in no case did the activities constitute a violation of the
Siljander Amendment.
We do not believe that the USAID-funded activity providing technical
assistance to the drafters of the Kenyan constitution violated the
Siljander Amendment. In 2009, the Kenyan Committee of Experts (COE), a
non-governmental entity charged with drafting the constitution by the
Kenyan government, requested that USAID provide funding to a specific
public international organization (PIO) for purposes of providing
advice on the draft constitution. At the COE's request, USAID funded
the PIO to provide such advice, and the PIO subsequently contracted
with a group of constitutional scholars who prepared several lengthy
reports analyzing the draft constitution, article by article. The
scholars' major recommendations related to issues such as the
authorities of the executive and legislative branches, election
processes, a proposed ban on ethnic minorities, and land tenure
rights. Although two of the scholars' reports included comments
relating to the provisions in the Right to Life article, they did not
highlight these points in particular or make them a focus of their key
recommendations. In fact, we believe that the GAO's draft report
dramatically overstates the importance of the scholars' comments on
the evolution of the Right to Life article. As we noted above, many
organizations in Kenya expressed ardent views on this provision
leading up to the referendum, and these opinions may well have
impacted the COE's decisions on text. For example, the State Inspector
General's report on this issue, dated August 2010, found that the COE
revised the text after consulting with Kenyan medical professionals.
However, the chart set forth on page 13 of the draft report implies
that the only entities advising the COE on this issue were the
scholars and the Parliamentary Select Committee. Indeed, the chart
suggests a causal link when the draft report itself does not find one,
as you note that the GAO was "unable to confirm whether the COE
changed the Right to Life article" based on the scholars' advice. We
therefore request that the GAO delete the chart in its entirety or
indicate substantial input from other sources.
In any event, we do not believe that the scholars' two references to
the Right to Life article constituted lobbying for or against
abortion. We considered several factors in arriving at this
conclusion. First, the scholars were providing advice to the COE upon
the COE's request. They did not reach out on their own initiative to
express a view on abortion or any other issue related to the
constitution. Second, the group did not single out the article for
focus but rather commented on it as part of its exhaustive article-by-
article review of the draft. Third, USAID obtained a legal opinion
from Kenyan counsel indicating that the Right to Life article in the
draft constitution would maintain the status quo on the country's
existing abortion law and would not represent a change. Finally, the
COE was a non-governmental entity, separate and distinct from the
Kenyan government. In light of these factors, USAID has concluded that
there is no evidence of a violation of the Siljander Amendment in
connection with the scholars' reports.
Similarly, there is no evidence that any USAID-funded civic education
activities violated the Siljander Amendment. As your report notes,
USAID-funded civic education activities sought to inform Kenyans on
the general contents of the proposed constitution. In the context of
general civic education, USAID-funded sub-recipients addressed
questions from Kenyans on many provisions of the constitution,
including in some cases the Right to Life article. They were not
lobbying on the issue but rather trying to ensure that citizens were
familiar with the text in the document.
Recommendation: To ensure the actions of U.S. officials and
implementing partners comply with the legislative prohibition against
using certain U.S. assistance funds to lobby for or against abortion,
we recommend that the Secretary of State and the USAID Administrator
develop specific guidance on compliance with the Siljander Amendment,
including what kinds of activities are prohibited, disseminate this
guidance throughout their agencies, and make it available to award
recipients and subrecipients.
Management Comments: As noted above, USAID takes compliance with the
abortion restrictions very seriously. USAID will build upon its
existing compliance tools and resources to develop additional guidance
for USAID and implementing partner staff on the Siljander Amendment.
[End of section]
Appendix VI: GAO Contact and Staff Acknowledgments:
GAO Contact:
Jacquelyn L. Williams-Bridgers, (202) 512-3101 or
williamsbridgersj@gao.gov.
Staff Acknowledgments:
Key contributors to this report include Jess Ford, James Michels,
Judith Williams, Chloe Brown, Mary Moutsos, William Tuceling, Martin
De Alteriis, Debbie Chung, Etana Finkler, Christopher Mulkins, and
Michael Kniss.
[End of section]
Footnotes:
[1] This restriction applies to funds appropriated in the annual
Department of State, Foreign Operations, and Related Programs
Appropriations Acts.
[2] An award recipient is an organization that receives a grant,
contract, purchase order, task order, or cooperative agreement from
USAID to conduct agreed-upon foreign assistance projects. These
organizations, in turn, often give subawards to partners, hereafter
called subrecipients, to implement the work.
[3] For the State IG report, see: U.S. Department of State. Review of
Department of State Activities Concerning the Draft Kenya
Constitution. Washington, DC, 2010. The USAID IG reports are not
public documents.
[4] The Kenya National Dialogue and Reconciliation Statement of
Principles on Long-Term Issues and Solutions (which we hereafter refer
to in this report as the comprehensive reform agenda) committed the
government to end violence and restore fundamental rights, address the
humanitarian crisis and promote reconciliation, approve of a power-
sharing agreement, and address long-standing issues that had led to
the violence. The comprehensive reform agenda identified
constitutional reform as one of these long-standing issues.
[5] Various sections of the existing Kenyan penal code address
abortion. For example, Section 158 states, "Any person who, with
intent to procure miscarriage of a woman, whether she is or is not
with child, unlawfully administers to her or causes her to take any
poison or other noxious thing, or uses any force of any kind, or uses
any other means whatever, is guilty of a felony and is liable to
imprisonment for fourteen years." Similarly, section 159 states, "Any
woman who, being with child, with intent to procure her own
miscarriage, unlawfully administers to herself any poison or other
noxious thing, or uses any force of any kind, or uses any other means
whatever, is guilty of a felony and is liable to imprisonment for
seven years." However, section 240 contains an exception to the
prohibition, stating, "A person is not criminally responsible for
performing in good faith and with reasonable care and skill a surgical
operation upon any person for his benefit, or upon an unborn child for
the preservation of the mother's life, if the performance of the
operation is reasonable, having regard to the patient's state at the
time and to all the circumstances of the case."
[6] For the most recent provision see the Department of Defense and
Full Year Continuing Appropriations Act, 2011, Pub. L. No. 112-10,
April 15, 2011, §1104, 125 Stat. 38, 103 extending provisions found in
the Consolidated Appropriations Act for 2010, Pub. L. No. 111-117,
December 16, 2009, 123 Stat. 3034, 3324.
[7] Michael Ranneberger was the U.S. Ambassador to Kenya from June
2006 through April 2011. Although he is now the former ambassador to
Kenya, we refer to him in this report as the ambassador, as he was
present during the majority of the constitutional reform process,
including the period leading up to the referendum.
[8] We requested an interview with the chair of the PSC. However, the
PSC is now defunct and the chair did not agree to meet with us.
[9] According to State's website, political officers analyze host
country political events, assess the impact of these events on the
United States, and make recommendations for U.S. government action.
Political officers' duties include developing foreign contacts in
government and other sectors in order to advance U.S. national
interests.
[10] These documents included the awards themselves, project
descriptions, and all associated reporting.
[11] We requested interviews with 29 subrecipients meeting our
selection criteria, but 4 could not meet with us because of scheduling
conflicts. A fifth subrecipient, the COE, is now a defunct entity, and
no former officers would meet with us or answer written questions.
[12] Since Kenyans passed the proposed constitution during a national
referendum in August 2010, the text of the proposed constitution cited
here is identical to the text in the enacted constitution.
[13] All but one of the subrecipients told us they used the COE civic
education materials or other civic education materials that either did
not address abortion or did so by citing the text of the
constitution's abortion-related provisions. However, one subrecipient
produced a civic education booklet that goes beyond citing the text.
This booklet states that "[all Kenyans] respect the sanctity of life
and Kenyans will go to great lengths to protect life." It also urges
the clergy "not to misguide Kenyans into reading [the abortion-
related] clauses in isolation. Instead they should persuade Kenyans to
read the clause on abortion together with the bill of rights as well
as the whole document and examine the two clauses against all the
contents of this Constitution and the broader Reform Agenda."
[14] According to U.S. officials and subrecipients, the two main
pieces of Kenyan legislation that relate most directly to the abortion-
related provisions are the penal code and Medical Practitioners and
Dentists Act.
[15] During an ectopic pregnancy, a fetus begins to develop outside
the uterus. The fetus cannot grow as it should and the pregnancy can
become a medical emergency for the mother.
[16] Some of these subrecipients indicated that Kenya's Medical
Practitioners and Dentists Act laid a foundation for defining the
"trained health professional" term. The act states that "the
expressions 'legally qualified medical practitioner' and 'duly
qualified medical practitioner' or any words importing a person
recognized by law as a medical practitioner or a member of the medical
profession, when used in a written law with reference to that person,
shall be construed to mean a person registered as a medical
practitioner under this Act or, where the context so admits, a person
who is licensed by the Board under section 13."
[17] Our media search revealed that seven subrecipients had publicly
addressed abortion. However, we did not find any indication that they
did so using U.S. funds or as a rationale to vote for or against the
constitution.
[18] For example, the State University of New York (SUNY) provided
technical assistance to Kenya's National Assembly and the United
Nations Development Programme (UNDP) provided technical assistance to
the Interim Independent Electoral Commission (IIEC). We did not find
any indication that this technical assistance addressed the abortion-
related provisions of the constitution.
[19] IDLO is a public international organization that promotes the
rule of law and good governance in developing countries, transition
economies, and countries emerging from conflict or natural disasters.
Both the United States and Kenya are member states.
[20] The COE no longer exists, and although we requested a meeting
with former COE members, none would meet with us. Furthermore, we
received no response to written questions we submitted to the former
COE chair.
[21] GAO, Foreign Assistance: USAID Relies Heavily on Non-Governmental
Organizations, but Better Data Needed to Evaluate Approaches,
[hyperlink, http://www.gao.gov/products/GAO-02-471] (Washington, D.C.:
Apr. 25, 2002).
[22] During a meeting with USAID attorneys, the attorneys read the
definition aloud to us once, but then would not provide us with a
written copy.
[23] DCHA includes the Office of Transition Initiatives, as well as
the Office of Democracy and Governance. Office of Transition
Initiatives personnel and a Democracy and Governance officer at the
Kenya Mission monitored USAID's constitutional reform process
activities in Kenya.
[24] According to USAID attorneys, USAID generally exempts non-family
planning awards with public international organizations (PIO) from
this requirement in recognition of their status as entities composed
of member state governments with some degree of sovereignty.
[25] According to USAID attorneys, USAID generally exempts non-family
planning awards with public international organizations from this
requirement in recognition of the organizations' status as entities
composed of member state governments with some degree of sovereignty.
[26] Assistance awards include grants and cooperative agreements,
while acquisition awards include contracts, task orders, and purchase
orders. The prohibition on abortion-related activities language
requirements is laid out in USAID's Automated Directives System (ADS)
(see [hyperlink, http://www.usaid.gov/policy/ads/300/303maa.pdf] for
assistance awards to U.S. nongovernmental organizations and
[hyperlink, http://www.usaid.gov/policy/ads/300/303mab.pdf] for
assistance awards to foreign nongovernmental organizations), and in
Acquisition and Assistance Policy Directive, AAPD 08-01 [hyperlink,
http://www.usaid.gov/business/business_opportunities/cib/pdf/aapd08_01.p
df]), for acquisition awards.
[27] Six awards did not originally include the language, but as one of
those six awards was given to a public international organization, the
United Nations Development Programme, it was not required.
[28] Four of the 12 award recipients made a total of 182 smaller
awards to subrecipients. All of the pre-referendum awards to
subrecipients included the mandatory language, even when the prime
award did not. The award recipients told us they either have their
procurement systems linked to USAID's ADS, they manually update their
procurement system on a regular basis to reflect any changes to ADS,
or they provide a link to the relevant chapter of the ADS in their
awards to subrecipients, thus including all mandatory clauses "by
reference."
[29] USAID has signed three additional awards since April 2011 for the
implementation phase of the constitutional reform process. Although
one award is with a public international organization, the
International Development Law Organization (IDLO), it nonetheless
includes the abortion-related language. The other two awards do not
themselves include the abortion-related language, but each award is in
compliance with the USAID language requirement because either its
leader award--in the case of the second Consortium for Elections and
Political Process Strengthening (CEPPS) award--or the indefinite
delivery/indefinite quantity contract--in the case of Chemonics--
includes the language.
[30] The fifth award had ended in March 2010, before USAID realized
the language was missing.
[31] USAID officials said that rollout of the system to its operating
units began in 2008 and should be complete by the end of 2011.
[End of section]
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