During the drafting of the Kenyan constitution in 2009 and 2010, the International Development Law Organization (IDLO), funded through the U.S. Agency for International Development (USAID), argued against constitutional bans on abortion and in favor of langauge stating that a fetus “lacks constitutional standing” — a potential violation of federal law, according to a new report by the Government Accountability Office (GAO).
Upon reviewing a first draft of the Kenyan constitution, IDLO suggested that the Kenyan Parliament “make clear that a person is a human being who has been born.” IDLO also opposed language in a second draft, recommended by the Parliamentary Select Committee, that determined that “the life of a person begins at conception” and that “abortion is not permitted unless in the opinion of a medical practitioner, the life of the mother is in danger.”
IDLO countered this recommendation, the GAO notes, arguing that “the language on abortion was unnecessarily restrictive and lacking in international precedent.” Among other things, according to the GAO, IDLO suggested that a “health of the mother” provision be included in the Kenyan constitution, rather than just a “life of the mother” clause. GAO observes that the final draft included abortion language consistent with IDLO recommendations, although not necessarily caused by those recommendations.
IDLO’s participation in the drafting process was funded through USAID by a “technical assistance award” to enable IDLO to assist the Kenyans in drafting their constitution.
Because it receives funding from the U.S. government, IDLO’s advice regarding abortion laws might violate the Siljander Amendment, GAO says, which mandates that “No foreign assistance funds may be used to lobby for or against abortion.”
The question of IDLO’s conformance with the Siljander Amendment is unclear, however. “Neither State nor USAID has clear gudiance for compliance with the Siljander Amendment,” the GAO explained, “which makes it difficult for some agency officials and award recipients to determine what types of activities are prohibited.”
