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Overseas with Legislation Prohibiting Abortion-Related Lobbying' which 
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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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(202) 512-4800: 
U.S. Government Accountability Office: 
441 G Street NW, Room 7149: 
Washington, D.C. 20548: