Kenyan Constitution Opens New Front in Culture Wars

By JEFFREY GETTLEMAN

The push to pass a new constitution in Kenya, a cornerstone of the effort to correct longstanding imbalances of power and prevent the kind of upheaval that followed deeply flawed elections here, has attracted some unexpected interference — from more than 7,000 miles away.

Before Kenyan lawmakers had even finished drafting the proposed constitution, American Christians organized petition drives in Kenya against it, objecting to a provision recognizing Islamic courts.

Now that the draft is done, three Republican members of Congress contend that it significantly expands abortion rights, and are accusing the United States Embassy in Kenya of openly supporting it in violation of federal rules.

It is the latest battle in the American culture wars playing out in Africa. Last year, American Christians helped stoke antigay sentiments in Uganda; later, Ugandan politicians proposed the execution of some gay people. That debate is still raging, though it looks as if the Ugandan government is backing down and will not pass the antigay bill after all.

In Kenya, a new constitution is a crucial part of the broader reform package that all Western donors, including the United States, have been aggressively supporting. Western ambassadors have consistently stood in front of Kenyan crowds and delivered speeches about the urgent need for judicial reform, land reform, constitutional reform and an end to impunity.

These are widely seen as steps Kenya must take if it is to avoid a repeat of the political and ethnic bloodshed set off by the disputed election in 2007. The abortion question, though a contentious social issue here, has not been part of that reform agenda.

In April, the Kenyan government passed a proposed new constitution, and it will be put to a yes-or-no referendum later this year. So far, polls show the public is firmly behind it.

The proposed new constitution, which curtails the sweeping powers of Kenya’s presidency and addresses questions about dual citizenship and other issues, may not be as pro-abortion as many of its critics contend. It still outlaws abortion, which is currently illegal under Kenya’s current penal code, though it spells out exceptions if “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.”

Those caveats have set off an intense debate, with American groups on both sides of the abortion issue weighing in and sending representatives to Kenya. Abortion opponents complain that the new constitution allows “abortion on demand,” while abortion rights adherents, concerned about the thousands of Kenyan women who die each year in secretive, botched operations, think the constitution is too weak on the issue. They wanted stronger protections and are upset that the constitution says, “The life of a person begins at conception” — a clause that was included in a late version of the draft after bitter debate.

The American Embassy here, one of the biggest in Africa, has tried to walk a fine line, financing a voter registration drive and urging Kenyans to pass a new constitution, but saying it has not told Kenyans specifically how to vote in the coming referendum.

Yet public statements by the generally outspoken ambassador, Michael E. Ranneberger, leave little doubt about his preference. “The government of the United States welcomes Parliament’s overwhelming approval of Kenya’s harmonized draft constitution,” he said in April. “Unity in support of the draft will bring the Kenyan people together.”

Pronouncements like these apparently caught the eye of three Republican members of Congress: Christopher H. Smith of New Jersey; Darrell Issa of California; and Ileana Ros-Lehtinen of Florida.

The three wrote a letter on May 6 to auditors at the State Department, the United States Agency for International Development and the Government Accountability Office, saying that “the Obama administration’s advocacy in support of Kenya’s proposed constitution may constitute a serious violation of the Siljander Amendment.” The little-known amendment, named after a former Michigan congressman, Mark D. Siljander, prohibits foreign aid from being used to lobby for or against abortion.

The letter says that the new constitution would “enshrine a new constitutional right to abortion” and “dramatically change Kenya’s abortion law.”

But many people closely following the constitution say the new constitution is actually more restrictive on abortion than the one it would replace.

“The proposed constitution,” said Yash Pal Ghai, a constitutional scholar in Nairobi who has helped write constitutions for several countries, is “about as hard on abortion as you can get.”

Some analysts fear that vested interests in Kenya that are threatened by the constitution for other reasons, including owners of large property who may have acquired their land illegally and are worried about new laws meant to correct this, may be using the abortion issue as cover.

“It’s just become a rallying point of opposition,” Mr. Ghai said.
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A version of this article appeared in print on May 14, 2010, on page A6 of the New York edition.