It states in its entirety that “none of the funds made  available under this Act may be used to lobby for or against abortion.”

	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. 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. 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. 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. 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. 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, 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. 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. 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. 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. 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.   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. 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. 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. 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. 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. 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.
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.