Blog of the International Journal of Constitutional Law

Abortion foes battle Kenya draft

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?



2 responses to “Abortion foes battle Kenya draft”

  1. Cheryl Saunders Avatar
    Cheryl Saunders

    A Constitution is or should be written primarily for the people who will live under it and there should be a presumption against foreign interference. Of course it is true that no constitution is autochthonous in the sense that globalisation affects all states in a wide variety of ways, but this should not be permitted to obscure the points of principle here. Some Constitutions are more autochthonous than others; those that are the most vulnerable are those made by and for states in receipt of foreign aid. Principles are needed to control the extent to which foreign aid can and should be used to influence the outcome of a constitution building process and the way in which it is conducted. A presumption against interference would at least recognise that there is a principle at stake and require justification of departures from it. Over time it may assist with the line-drawing exercise referred to in the post – albeit with reference to the activities of lobbyists.

  2. Miguel Schor Avatar

    I would prefer that the U.S. not export its ideological battles as well and I agree that we want clear lines when it comes to government funded advice. I doubt, however, that there a clear line between “politics” and “expert” advice. Human rights in the 19th century was shaped by an ideological struggle over slavery. The antislavery campaign was the first great transnational advocacy network. Anti-abortion forces in the 20th century are a modern transnational advocacy network. One of the interesting aspects of abortion is that we think of constitutions as providing a means to compromise over intractable issues but that is very difficult to do when opposing forces have intense and conflicting preferences over identity issues. Pro-abortion forces are probably content to leave the issue underdetermined and subject, therefore, to constitutional politics whereas anti-abortion forces want a clear line drawn in national constitutions.

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