- The Washington Times - Wednesday, September 1, 2010

On August 27th, President Mwai Kibaki signed a new constitution for the Republic of Kenya that was approved in an August 4th national referendum.  Mr. Kibaki and Prime Minister Raila Odinga said, “All Kenyans won on this matter.” Unfortunately, there are compelling reasons to fear that may not be true.

I, together with many others, was counting on a new constitution to provide hope for Kenya’s future by preventing a recurrence of the deadly violence that has followed past elections and by addressing the corruption that plagues this eastern African country. However, the apparent hijacking of this reform process by special interests and the blatantly undemocratic and potentially illegal contribution by the Obama administration give cause for grave concern as to what this document portends for Kenya’s future.

One of the controversial issues debated in the constitution is the elevation of “kadhi courts” giving special treatment to Kenyans who profess the Muslim religion, including state funding of these Islamic courts. Although kadhi courts have long existed in Kenya, the leaders of other faith traditions are rightly concerned about granting privileges to one religion over others in the constitution and laying the foundation for state-sanctioned religious discrimination.

Another contentious issue concerns the right to life of the unborn. Kenya’s penal code prohibits abortion except to preserve the mother’s life. This sole restriction reflects the pro-life position of the Kenyan people. A recent poll shows 69 percent of Kenyans oppose the legalization of abortion.

A parliamentary committee proposed language in an early draft of the constitution that would have enshrined the current law. But a “committee of experts” created exceptions to allow abortion for other “emergency treatment,” for the “health” of the mother or even if “permitted by any other written law.” The committee also reinserted an undefined right to “reproductive health care” after it had been removed by the parliamentary committee. Anyone familiar with how our own Supreme Court discovered a previously unknown right to abortion in the U.S. Constitution knows that these terms will be seized upon to impose abortion on demand in Kenya.

There is no doubt that this was the committee’s intention. The question is whether it was done or whether the constitution was then promoted with the assistance of U.S. taxpayer funds. In April 2009, Secretary of State Hillary Rodham Clinton stated her “strongly held view” during a hearing of the House Committee on Foreign Affairs that the Obama administration should be free to advocate for a right to reproductive health care “anywhere in the world” and that reproductive health includes abortion. Despite the legal prohibition against using U.S. foreign assistance to “lobby for or against abortion,” the administration has followed through on the secretary’s threat to advance her pro-abortion views as far away as Kenya, at taxpayer expense.

While it is proving difficult to obtain details about the U.S. Agency for International Development’s constitution-related activities, I was given a very brief summary of USAID grants by the agency’s inspector general. The IG list indicates that, USAID has committed more than $23 million. The list includes eight grants totaling nearly $450,000 explicitly to obtain a total of more than 100,000 “yes” votes in the referendum. The summary is too brief to ascertain how many other grants may involve advocacy for “yes” votes or abortion-lobbying activities, yet it may be the tip of the iceberg. The information provided shows that taxpayer money went to groups that openly advocate for the legalization of abortion, including pro-abortion groups that engaged in activities to advocate for the constitution’s approval.

The USAID IG has not yet finished his investigation into these obvious violations of U.S. law. The report on these USAID-funded activities will be in addition to the report issued by the Department of State’s inspector general tasked with investigating whether State Department employees participated in prohibited activities. Unfortunately, the State Department IG’s conclusion contradicted his own report indicating that U.S. officials urged Kenyans to vote in favor of the constitution. He also failed to explain how U.S. officials knew details about discussions between the parliamentary committee and the committee of experts specifically about the abortion provision. While the State Department IG seems to have punted I wait to see whether the USAID IG will be able to provide an objective and complete report of this matter.

Regardless of the outcome of the investigations by the inspectors general, enough evidence has been provided to conclude that the interference by the Obama administration in the Kenyan constitution reform process is a violation of the United States abortion funding restriction. Even if U.S. money was not used to draft and advocate specifically for the abortion provisions - and it is quite possible that it was - advocacy for the constitution overall is a violation of this restriction. It is certain that if the constitution had included an unqualified right to life from the moment of conception, abortion advocates from the United States would have been outraged at the administration’s support for the document regardless of any other provision it contained. This is the congressional intent behind the abortion funding restriction - to keep U.S. taxpayer money out of foreign abortion debates. And in the case of Kenya, the Obama administration violated this restriction.

The new constitution, in failing to protect Kenya’s children, does not bode well for Kenya’s future. It is doubly tragic that the Obama administration illegally used U.S. taxpayers to do it.

Rep. Chris Smith of New Jersey is the senior member of the House Foreign Affairs Committee and ranking Republican on the Subcommittee on Africa and Global Health.