If the Kenyan Constitution fails in a referendum a little over a month from now, it may be largely the result of foreign groups lobbying against it. Three U.S. Congressmen are now calling for an investigation into US support for the Kenyan constitution, arguing that funds spent on civic education for the proposed draft violate the Siljander Amendment, which is a provision of the U.S. Appropriations Act stipulating that no USAID and State Department funds “may be used to lobby for or against abortion.” (Surely this is a broad reading of the word lobbying, and apparently the author of this controversial amendment is himself under indictment for lobbying violations.) American churches have also funded challenges to the carefully negotiated provisions on the Islamic courts in the Kenyan draft.
I for one think it that, of all the things the US might export to Africa, our culture wars should not be at the top of the list. Whatever ones views of the particular compromises undertaken in Kenya’s drafting process, the choices made are hardly insane. So we might take the approach of viewing the constitution as a bundle, to be evaluated in its entirety, and to be selected or rejected by the sovereign people of Kenya on their own terms. At the same time, in a global era, no constitution is autochthonous, and it is hard to draw a clear line between good and bad external intervention. Should there be a limit to external efforts to lobby for or against particular constitutional documents, or provisions therein?