Foreign Assistance: Clearer Guidance Needed on Compliance Overseas with Legislation Prohibiting Abortion-Related Lobbying
Published: 2011-10-13T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: 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.
section_title: What GAO Found
paragraphs: 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.
section_title: What GAO Recommends
paragraphs: 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.

section_title: Letter
paragraphs: 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, 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. 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.
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.
subsections: section_title: Background
paragraphs: 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.
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. 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.”
section_title: U.S. Officials Publicly Supported the Constitutional Reform Process, but Did Not Take a Position on the Issue of Abortion
paragraphs: 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.
subsections: section_title: U.S. Officials Publicly Supported the Constitutional Reform Process
paragraphs: 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. 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 . . .  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.
section_title: No Indication That U.S. Officials Took a Position on Abortion
paragraphs: 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 app.  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. 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. 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.
section_title: Some U.S.-Funded Award Recipients and Subrecipients Addressed Abortion through Civic Education and Technical Assistance
paragraphs: 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.
subsections: section_title: U.S.-Funded Civic Education Sometimes Addressed Abortion- Related Provisions
paragraphs: 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 and  conducted an extensive media search on each subrecipient to identify  those most likely to have addressed the issue of abortion (see app. I for a  complete discussion of our methodology). Based on these criteria, we  identified and interviewed 24 subrecipients. 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.” Some subrecipient civic education materials addressed  abortion and, in all but one case, did so by citing the Right to Life  article.
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.    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. 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.
section_title: No Indication That U.S.- Funded Civic Education Cited Abortion as a Rationale to Vote for or against the Constitution
paragraphs: 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.
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.
section_title: U.S.-Funded Technical Assistance Included Advice on the Draft Constitution’s Abortion- Related Provisions
paragraphs: 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. 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. 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  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.”
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. 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.
section_title: U.S. Support for Implementation Does Not Address Abortion
paragraphs: 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.
section_title: Neither State nor USAID Has Clear Guidance on the Types of Activities Prohibited under the Siljander Amendment
paragraphs: 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.
subsections: section_title: Neither State nor USAID Has Formally Defined Lobbying for the Purposes of the Siljander Amendment
paragraphs: 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. 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.
section_title: State Has Not Developed Guidance on Compliance with the Siljander Amendment
paragraphs: 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.
section_title: USAID’s Limited Guidance on the Siljander Amendment Does Not Document the Types of Activities Prohibited
paragraphs: 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. 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. 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 app. III for a discussion of compliance  with the requirement to include the mandatory language in each award  related to Kenyan constitutional reform.)
section_title: Some State and USAID Officials and Award Recipients Unclear on the Types of Activities Prohibited
paragraphs: 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.
section_title: Conclusions
paragraphs: 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.
section_title: Recommendation for Executive Action
paragraphs: 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.
section_title: Agency Comments and Our Evaluation
paragraphs: 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  agreed 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 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.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: 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.
section_title: Appendix II: Chronology of Constitutional Reform in Kenya
paragraphs: 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.
section_title: Appendix III: Status of Compliance with the Requirement to Include USAID’s Mandatory Provision Prohibiting Abortion-Related Activities in Awards
paragraphs: USAID requires language prohibiting abortion-related activities in all  assistance and acquisitions awards. 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.”  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. 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. 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.
The USAID contracting officials told us they added the mandatory  language to 4 of the awards 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. 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.
section_title: Appendix IV: Comments from the Department of State
section_title: Appendix V: Comments from the U.S. Agency for International Development
paragraphs: Appendix V: Comments from the U.S. Agency  for International Development  Jacquie Williams-Bridgers  Managing Director, International Affairs & Trade  U.S. Government Accountability Office   Washington, DC  20548 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.
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.
section_title: Appendix VI: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
paragraphs: Jacquelyn L. Williams-Bridgers, (202) 512-3101 or  williamsbridgersj@gao.gov.
section_title: Staff Acknowledgments
paragraphs: 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.