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A Quarrel in Ali Baba’s Cave

8 min read.

With the suspension of the IEBC chief, Ezra Chiloba, over questionable procurement deals, the Commission’s collapse is now all but certain. Triggered by avarice and resurrecting the ghosts of August 2017, a change of guard at the electoral body will only further delay the search for electoral justice. How then, to deal with the original sin of Executive capture? By KWAMCHETSI MAKOKHA

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A Quarrel in Ali Baba’s Cave
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A decision last week by the plenary of the IEBC to send chief executive officer Ezra Chiloba on forced leave to pave way for a 90-day audit by the Kenya National Audit Office blasted open the simmering rivalries that have dogged this Commission’s tenure since it came to office in January 2017. As accusations and counter-accusations fly, it is now apparent that conflicts of interests over procurement tenders, rather than political factionalism or even the struggle to establish the truth of the August elections last year, will be the IEBC’s comeuppance.

Chiloba’s suspension triggered the resignations of commissioners Connie Nkatha Maina, who was the vice-chair, Margaret Mwachanya and Paul Kurgat. The trio’s departure, in addition to the dramatic resignation of commissioner Roselyn Akombe ahead of the October 26, 2017 presidential election re-run, denies the seven-member commission the necessary quorum of four to convene. Simply put, the Commission is paralysed.

Paralysis at the Commission will, among other things, throw a spanner in the works of the rumoured referendum on a constitutional amendment to replace the current presidential system with a parliamentary one – supposedly the end-game of the March 9 handshake between Uhuru Kenyatta and Raila Odinga.

While Ruto may have been the puppet-master who engineered the commissioners’ resignations – the influence of Ruto’s faction of the Jubilee party on the Commission has long been whispered – ostensibly to protect both his current position and his 2022 presidential ambitions, two other important casualties could well go down with a moribund IEBC: the truth of the August 2017 elections, and serious attempts at long-term electoral reform. These things, as we shall see, are not unrelated.

But first, to the ongoing drama at the Commission. Chiloba first found himself in trouble with his commissioners last year, in the messy aftermath of the presidential elections annulment, as the Commission prepared for a fresh poll. It is well worth noting that his latest suspension arises from some of the questions Chebukati raised in his leaked September 1, 2017 memo. Investigating five procurement tenders, the IEBC’s five-member Audit and Risk Committee found that Chiloba as the Commission’s chief accounting officer, committed serious violations of the Public Procurement Act in at least two instances.

While Ruto may have been the puppet-master who engineered the commissioners’ resignations – the influence of Ruto’s faction of the Jubilee party on the Commission has long been whispered – ostensibly to protect both his current position and his 2022 presidential ambitions, two other important casualties could well go down with a moribund IEBC: the truth of the August 2017 elections, and serious attempts at long-term electoral reform.

The first involved a Ksh 275 million contract with Oracle Technology Systems (Kenya) Ltd to provide election database solutions. The Audit Committee noted that: “There was no contract for provision of Oracle Database and Security Solution…between IEBC and Oracle Technology Systems (Kenya) Ltd drawn by [the Commission’s Directorate of Legal and Public Affairs] and signed by IEBC and Oracle Representatives. Instead, signed ordering documents drawn by Oracle…were provided [as evidence of a contract].”

Observing earlier that there had been no tender award notification, the committee described this situation as ‘High Risk’. More seriously, noted the committee, full implementation of the Oracle database system was only finalised on February 14, 2018, six months after the elections.

The second, once again, is tech-related: a Ksh 913 million contract, with Airtel Kenya Ltd, for the delivery of 1,553 Thuraya satellite modems – to be used for results transmission in remote areas. Signed just three weeks before the August 8 elections, in its acceptance letter, Airtel Kenya indicated that it could only deliver 1,000 modems in time. “Nonetheless,” notes the committee in the report, “the Commission proceeded to execute an agreement for 1,553 devices. Inquire why the Commission purchased 553 devices – despite the correspondence.”

The remaining 553 devices arrived two-and-a-half weeks after the elections.

IEBC chairman Wafula Chebukati and Dr Akombe lost a plenary battle to force Chiloba out of the commission following the Supreme Court’s annulment of the August 8 presidential election. At the time, attempts to obtain some answers from Chiloba for the disastrous August elections were fought off by Deputy President William Ruto, who claimed in a television interview that all the answers to the questions being raised had been provided. When Chiloba’s suspension looked irreversible last week, we are reliably informed, the three resigning commissioners consulted Ruto before taking the leap.

With Chiloba’s suspension now underway and the National Audit Office stepping in, the corruption investigation will only complicate the mystery around the 2017 elections – and further delay any efforts to fix the IEBC. Disputed elections in Kenya have nurtured a culture of rewarding suspected wrongdoers instead of punishing them. The Samuel Kivuitu-led Electoral Commission of Kenya, which presided over the disputed 2007 elections, was booted out of office at a cost of Sh68 million. Its successor, the Isaack Hassan-led Independent Electoral and Boundaries Commission received Sh315 million to leave office a year early.

Law scholar Muthomi Thiankolu observes that electoral malpractice does not occur by itself; that there are human beings behind it. “We have, since 1962, ignored them through legal sophistry. The courts’ refusal to personally sanction malpractice gives life to this perverse incentive.”

While the Kriegler Commission recommended root-and-branch electoral reforms after the 2007 elections debacle, the fact that the IEBC’s report on the 2013 elections was rejected by Bunge – there is to this day no comprehensive accounting of what happened in 2013 – suggests that even the piecemeal reforms eventually instituted under Kriegler were sabotaged by Executive capture. Accountability for electoral malfeasance remains Kenya’s political bugbear. Ironically, neither a Jubilee-run parliament, nor a demand for a popular referendum (á la the opposition’s Okoa Kenya initiative) submitted to a captured IEBC is likely to succeed.

With the resignation of the commissioners at the IEBC, a referendum appears out of the question, given the history that the opposition Coalition for Reforms and Democracy had with the Okoa Kenya (Save Kenya) initiative. After a year of public mobilization, the IEBC ruled that the referendum bill was dead on arrival because the movement had not collected the requisite one million signatures to warrant its presentation to the county assemblies for a vote.

CORD resorted to mass action outside the IEBC offices that ended in a Sh315 million buyout of the commissioner’s contract remainders, achieving the replacement of new commissioners seven months to the election.

The Audit Committee noted that: “There was no contract for provision of Oracle Database and Security Solution…between IEBC and Oracle Technology Systems (Kenya) Ltd drawn by [the Commission’s Directorate of Legal and Public Affairs] and signed by IEBC and Oracle Representatives. Instead, signed ordering documents drawn by Oracle…were provided [as evidence of a contract].”

With both the parliamentary and referendum routes to electoral justice closing, a managerial housecleaning may seem an acceptable compromise, but there are few guarantees that, as happened during the bipartisan Windsor Reform exercise, that it will not be scuttled by an Executive desperate to cling to power. Senate minority leader James Orengo and National Assembly majority leader Aden Duale appear to agree that the whole IEBC team needs to go, but none has reckoned with how long their replacements will be in coming. More dangerously, it will be harking back to the tried and failed methods of piecemeal changes to the electoral management body attempted over time.

Demands for political dialogue have significantly featured on the agenda electoral justice questions, which would entail acknowledgment of wrongdoing, punishment for election crimes, restitution for harms suffered and guarantees of non-repetition following similar disputes in the 2007, 2013 and 2017 elections.

Parliament, which has been riven by disputes over the unresolved August 2017 presidential election, was clearly doing the bidding of State House when it passed amendments to the Elections Act in the run-up to the repeat presidential election in October 2017. The amendments, which were aimed at weakening Wafula Chebukati’s authority among the commissioners, were struck down by the High Court as unconstitutional early this month. A captured Commission had by that time already unanimously endorsed Uhuru Kenyatta’s victory.

With a majority of 268 seats to NASA’s 127, Jubilee’s dominance in Parliament is not only guaranteed, it is likely to be bolstered if the trend of abortive election petitions continues. Consequently, any possibility that Bunge could become the site of genuine electoral reform is closed for the foreseeable future.

By mid February 2018 when a summary of court decisions in 244 petitions challenging the results of various races in the August 8, 2017 polls was published, Parliament had been closed off as a site of reform, turning the dream of electoral justice into a political chimera.

Over half of the 388 petitions challenging various elections had floundered for a variety of reasons — none of which had anything to do with what had happened at the ballot: Fourteen petitions were withdrawn before trial; another 14 dismissed for being filed out of time, 10 thrown out because the case papers were not served on victors; nine failed to take off because security for costs was not paid; and two could not proceed because the petitioner or their lawyers were not in court. One election winner died.

A paltry 14 petitions against the election of Members of the National Assembly and one against a governor had succeeded. Not only were the numbers in the Senate going to hold, with the Jubilee Party enjoying a majority, but the 14 by-elections for National Assembly seats posed the risk of reducing the Opposition minority from its 127.

If an incumbent has a direct interest in capturing the electoral management body to manipulate the results, then the EMB is also under pressure from crony oligarchs interested in profiting from procurement deals. Furthermore, the absence of formally funded political parties has created a gap for these very oligarchs to take control of and shape political movements. Elections in Kenya thus become a democracy auction, in which the highest bidder bags the prize.

Despite the enactment of the Political Parties Act in 2012, which provides that 0.3 per cent of all revenue should go to the Political Parties Fund to resources parties, Treasury has only allocated 0.03 per cent of revenue each year. Last year, the High Court agreed that the Orange Democratic Movement should have been paid the Sh4.1 billion owed to it from the fund, but ruled that claiming it late put the party at fault.

Nothing illustrates the desperation around the award of specific tenders and contracts more graphically than the last-minute litigation by the IEBC against the cancellation of the Sh2.5 billion ballot-printing contract to Al Ghurair of the United Arab Emirates. After contesting every court decision over eight months, the IEBC prevailed because the Court of Appeal realized that the country had run out of time to appoint a new supplier for the ballot materials.

The 2010 referendum on the draft constitution, considered one of the cleanest electoral events in recent history, gave birth to the Chickengate scandal, in which British printer Smith & Ouzman padded the cost of ballot papers in order to raise bribes for Kenyan officials awarding the tender. The British Crown Court fined the company Sh52 million and jailed its director. For its part, Kenya received the Sh52 million fine and spent it on ambulances. Three people were charged in connection with receiving bribes last year, a month to the elections.

If an incumbent has a direct interest in capturing the electoral management body to manipulate the results, then the EMB is also under pressure from crony oligarchs interested in profiting from procurement deals. Furthermore, the absence of formally funded political parties has created a gap for these very oligarchs to take control of and shape political movements. Elections in Kenya thus become a democracy auction…

The sheer scale of electoral operations has created a micro economy out of elections in Kenya, attracting a gaggle of sleaze-balls into election management. Questions have been raised over the award of Sh2.4 billion technology contracts to OT Morpho, the firm at the centre of the crisis involving the presidential election results, as well as the multi-million shilling supply of satellite phones for results transmission redundancy. Additionally, IEBC has been forking out billions of shillings in legal fees despite having a fully staffed legal department.

Instructively, criminal cases against former IEBC chief executive officer James Oswago, his deputy Wilson Shollei and managers Edward Karisa and Willy Kamanga over the purchase of Sh1.3 billion of biometric voter identification kits are still in court, six years after the Supreme Court recommended investigation and prosecution.

From the 2017 elections, a handful of election officials have been charged with petty offences relating to altering results in 2017, but accountability for major electoral breaches still remain the stuff of the political circuit.

Lucre is the reward for election managers to look the other way as politicians steal the vote. Still, with all its election problems, Kenya is already so far ahead of the pack in the region that, not unlike its steeplechase runners, it can afford to slow down the pace to allow those behind to catch up.

As it is, elections cannot be challenged in Tanzania once results are announced; in Uganda, courts can find elections flawed and still uphold the results. In Rwanda and Burundi, it never gets that serious. Unfortunately, the failure to debate and tackle questions of electoral justice loads them with grievances about exclusion of ethnicities, constructs narratives of marginalization and makes for less stable societies.

Kenya has unsuccessfully experimented with a representative commission bringing together political parties and a professional outfit, to no avail. Like the male praying mantis approaches an act of mating with the knowledge of its inevitable fate, so too have electoral commissions in Kenya come to conduct polls knowing that their heads will be shortly bitten off.

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Kwamchetsi Makokha is a journalist with over two decades on the frontline of the struggle for human dignity. Co-editor (with Arthur Luvai) of the East African poetry anthology, 'Echoes across the Valley', he escapes into literature, the performing arts and agriculture. He is currently Programme Advisor at Journalists For Justice.

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Unlike the Rest of the UN, Is WHO (Finally) Taking Sexual Abuse Seriously?

A disturbing report on the sexual exploitation and abuse of women and children in the DRC has laid bare the failure of UN agencies to protect vulnerable populations.

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Unlike the Rest of the UN, Is WHO (Finally) Taking Sexual Abuse Seriously?
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It is extremely unfortunate that at a time when the World Health Organization (WHO) is spearheading a campaign to get people vaccinated against COVID-19, and pushing rich countries to donate their vaccines to low-income countries instead of hoarding them, it is confronted with revelations that suggest deep systemic failures within the global health agency that have allowed its employees to get away with sexual exploitation and abuse of vulnerable populations.

Last month, WHO released a report that confirmed that there was sexual abuse of women and children by WHO employees in the Democratic Republic of the Congo (DRC) during an outbreak of Ebola in the country’s North Kivu and Ituri provinces between 2018 and 2020. This report was the result of an independent commission’s investigations following an exclusive media report last year that found that dozens of women in the DRC had been sexually exploited by aid workers, including WHO employees.  The most disturbing revelation was that some of the perpetrators were medical doctors. Many of the abused women were offered jobs in exchange for sex; others were raped or coerced into having sex against their will. There were also stories of women being forced to have abortions after they were sexually abused. The independent commission stated that its findings showed that 21 of the 83 alleged perpetrators were WHO employees, and that “individual negligence” on the part of WHO staff may have amounted to “professional misconduct”.

This is not the first time that sexual abuse and exploitation of women and children by UN employees has been reported in the DRC. In 2004, UN Secretary-General Kofi Annan ordered an investigation into sexual abuses by UN peacekeepers in the country after it became apparent that such abuse was widespread in this mineral-rich but conflict-ridden country.  The investigation detailed various forms of abuse, including trading sex for money and food. It was in the DRC that the term “peacekeeper babies” first emerged. Women who had given birth after being raped by UN peacekeepers spoke about being abandoned by both their families and the peacekeepers who had impregnated them. However, the report had little impact on the UN’s peacekeeping mission in the DRC – none of the perpetrators were brought to book nor were the victims compensated.

Sexual abuse of vulnerable populations, especially women and children, is particularly rampant in UN peacekeeping missions.  In 2017, the Associated Press revealed in an exclusive report that at least 134 Sri Lankan UN peacekeepers had exploited nine Haitian children in a sex ring from 2004 to 2007. Many of the victims were offered food or money after they were sexually violated. (These “sex-for-food” arrangements have also been reported in other countries experiencing conflict or disaster.) Although 114 of these peacekeepers were sent home after the report came out, none of them were prosecuted or court-martialled in their countries.

One reason why UN peacekeepers evade the consequences of their actions is that under the Status of Forces Agreement negotiated between the UN and troop-producing countries, UN peacekeepers fall under the exclusive jurisdiction of the country they come from. When cases of abuse are reported, they are either ignored by the countries, or the perpetrators are sent home—no questions asked.

Unfortunately, civilian UN staff who commit crimes such as rape also evade any legal action because the UN accords the UN and its employees immunity from prosecution. This immunity can only be waived by the UN Secretary-General, but the Secretary-General hardly ever waives this immunity even when there is overwhelming evidence against a UN staff member. This means that cases brought against UN employees cannot be tried in national courts, nor can the perpetrators be detained or arrested by national law enforcement agencies.  

At a press conference held last month, WHO’s director-general, Tedros Adhanom Ghebreyesus, apologised to the victims of the abuse in the DRC at the hands of WHO employees and promised to take action to prevent such abuse from happening again. “I am sorry for what was done to you,” he said. “What happened to you should not happen to anyone.”

The head of WHO has also promised to review the organisation’s emergency response measures and internal structures and to discipline those staff members who fail to report cases of sexual exploitation and abuse. WHO member states have also called for an “immediate, thorough and detailed assessment of what went wrong”.

I have no doubt that Mr Ghebreyesus is serious about fixing a problem that has plagued the UN for decades. In fact, his response to the sexual abuse allegations is much more honest and sincere than the responses of other heads of UN agencies whose employees have been accused of allowing sexual exploitation and abuse to occur under their watch. One, he established an independent commission to look into the sexual abuse allegations, which rarely happens. (Most UN agencies either ignore the allegations or order an internal investigation, which invariably determines that the allegations “could not be substantiated”.) Two, he has publicly committed to undertake wholesale reforms in WHO’s structures and culture that allow sexual exploitation and abuse of vulnerable populations to go undetected, unreported and unpunished. Three, he has agreed to the independent commission’s recommendation that an independent monitoring group be set up within two months to ensure that the commission’s recommendations are enforced.

“What happened to you should not happen to anyone.”

Most UN agencies would not welcome such intense scrutiny of their operations by independent bodies, so WHO’s efforts in this regard are laudable.  WHO’s actions could also be attributed to the fact that, unlike other UN agencies that report to the General Assembly, WHO reports to the World Health Assembly that comprises delegates that have technical competence in health matters and represent their governments’ ministries of health. Because it is a specialised UN agency not governed by the General Assembly, WHO can establish its own rules without deferring to the General Assembly. In this sense, WHO enjoys relative autonomy from the UN system’s gargantuan and highly opaque bureaucracy.

Cover-ups and impunity 

WHO’s response is a far cry from the normal tendency of UN bosses to cover up cases of sexual abuse and exploitation taking place under the UN’s watch.  In 2014, for instance, when a senior UN official reported to the French government that French peacekeepers operating in the Central African Republic were sexually abusing boys as young as eight years old, his bosses at the Office of the UN High Commissioner for Human Rights (OHCHR) responded by asking him to resign. When he refused to do so, they suspended him for “unauthorized disclosure of confidential information”, and, in a typical case of “shooting the messenger”, they directed their internal investigations towards him rather than towards the peacekeepers who had allegedly abused the children. This case, which received wide media coverage, did not lead to significant changes in how the UN handles sexual abuse cases. On the contrary, Anders Kompass, the UN official who reported the abuse, was retaliated against, and eventually left the organisation in frustration.

Cases of UN employees sexually abusing or harassing their colleagues are also brushed under the carpet. In 2018, for example, when an Indian women’s rights activist accused the United Nations Population Fund (UNFPA)’s India representative of sexual harassment, the UN agency said that its preliminary investigations showed that her allegations could not be substantiated. The Code Blue Campaign, which tracks instances of sexual harassment and exploitation by UN employees, dismissed the findings of the investigation, calling them a “cover-up.” (Soon after the activist made her allegation, UNFPA evacuated the accused from India, which further muddied her case.)

This is not an isolated case. In 2004, when a staff member at the UN’s refugee agency accused the head of the organisation of sexual harassment, the UN Secretary-General, Kofi Annan, dismissed her claims. Recently, a woman working at UNAIDS lost her job soon after she filed a complaint of sexual harassment against UNAIDS’ deputy executive director. This was after Michel Sidibé, the then head of UNAIDS, told a staff meeting that people who complain about how the agency was handling sexual harassment “don’t have ethics.”

The UN’s highly patriarchal and misogynistic culture allows such abuse to continue unabated. In 2018, the UN conducted an internal survey that found that one-third of the UN employees surveyed had experienced sexual harassment. It revealed that the most vulnerable targets were women and transgender personnel aged between 25 and 44. Two out of three harassers were male and only one out of every three employees who were harassed took any action against the perpetrator. About one in ten women reported being touched inappropriately; a similar number said they had witnessed crude sexual gestures.

Another survey by the UN Staff Union found that sexual harassment was one among many abuses of authority that take place at the UN. Results of the survey showed that sexual harassment made up about 16 per cent of all forms of harassment. Forty-four per cent said that they had experienced abuse of authority; of these, 87 per cent said that the person who had abused his or her authority was a supervisor. Twenty per cent felt that they had experienced retaliation after reporting the misconduct.

The UN’s highly patriarchal and misogynistic culture allows such abuse to continue unabated.

Since then, the UN has established a new sexual harassment policy and a hot line for victims of sexual harassment. However, remedial actions spelled out in the policy appear to be mediation or counselling exercises rather than disciplinary ones. The emphasis is on psychosocial support and counselling (for the victims, of course) and “facilitated discussions” between the “offender” and the “affected individual”. Disciplinary measures include physical separation of the offender from the victim, reassignment, and temporary changes in reporting lines. Official internal investigations are permitted, but as I have tried to illustrate, most internal UN investigations into cases of sexual harassment and other kinds of wrongdoing inevitably conclude that the sexual harassment or wrongdoing “could not be substantiated.” This leaves victims vulnerable to retaliation.

Perhaps WHO can lead the way in showing the rest of the UN system how to tackle sexual exploitation, abuse and harassment by UN employees. WHO has already terminated the contracts of four of its employees who were accused of sexually exploiting women in the DRC. However, a true test of WHO and the UN’s commitment to end such abuses would be if they reinstated all those who were fired for reporting such cases. I for one am eagerly awaiting the independent monitoring group’s findings on whether or not WHO has taken tangible and impactful measures to protect people from being sexually abused and exploited by its employees and to safeguard the jobs of those who report such abuses.

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The Retrospective Application of Constitutional Statutes: Notes From the High Court of Kenya

Katiba Institute adds to the growing comparative discussion around constitutional statutes and therefore ought to be keenly studied by students of comparative constitutional law.

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Previously, I have discussed the concept of constitutional statutes. Recall that a constitutional statute is a law that is “enacted in pursuance of the State’s positive obligation to fulfil a constitutional right.” While certain constitutional rights are self-enforcing (such as, for example, the right to free speech ipso facto prohibits the State from engaging in arbitrary censorship), others – by their very nature – require a statutory framework to be made effective. For example, the right to vote cannot be made effective without an infrastructure in place to conduct free and fair elections, including the existence of an independent, non-partisan Election Commission. Insofar as such a legislative framework is not in existence, the state is arguably in breach of its positive obligations to fulfil the right in question. Thus, to refine the definition further, a constitutional statute is a statute that “provides a statutory framework towards implementing a fundamental right, thereby fulfilling the state’s positive obligation to do so.”

What follows from the finding that a particular law is a constitutional statute? On this blog, we have discussed constitutional statutes in the context of amendments to the Right to Information Act, which have sought to undermine the independence of the Information Commissioners. We have argued that, insofar as constitutional statutes stand between the individual and the State, mediating the effective enforcement of rights, legislative amendments that prevent them from fulfilling this function, are thereby unconstitutional. Furthermore, once a constitutional statute has been enacted, the principle of non-retrogression applies – that is, the legislature cannot simply repeal the law and go back to a position where the right in question was unprotected. Another example discussed on this blog is the recent judgment of the Kenyan Court of Appeal in David Ndii, where it was held that the implementation of the Popular Initiative to amend the Kenyan Constitution required a legislative scheme, as also its discussion of the previous judgment in Katiba Institute, where an attempt to reduce the quorum for resolutions of the Independent Electoral and Boundaries Commission was held to be unconstitutional.

The judgment of the High Court of Kenya of 14 October 2021 – also titled Katiba Institute – provides an additional, fascinating implication that flows from the finding that a law is a constitutional statute. Katiba Institute arose out of the efforts of the Government of Kenya to implement a national biometric identification system called NIIMS, and the judgment of the High Court with respect to a challenge to the constitutionality of NIIMS (Nubian Rights Forum), which we discussed on this blog back in 2019. Recall that in Nubian Rights Forum, after a detailed analysis, the High Court struck down a part of NIIMS, and allowed the government to go ahead with the rest of the programme subject to the implementation of an effective data protection law. Therefore, as I had noted in that post:

The High Court’s decision – at least in part – is a conditional one, where the (legal) future of the NIIMS is expressly made dependant on what action the government will take. Thus, there remain a significant number of issues that remain open for (inevitable) litigation, even after the High Court’s judgment.

Notably, Kenya had enacted a data protection law in between the hearings and the judgment, but the High Court – in its verdict – was insistent that until the point of effective implementation, the continued rollout of NIIMS could not go on. And this was at the heart of the challenge in Katiba Institute: the applicant argued that NIIMS had been rolled out, in particular, without complying with Section 31 of the Kenyan Data Protection Act, which required a Data Impact Assessment as a pre-requisite to any data collection enterprise. In response, the state argued that the data collection in question had already been completed before the passage of the Data Protection Act, and that therefore – in accordance with the general principle that statutes are not meant to apply retrospectively – Section 31 was inapplicable to this case.

Engaging in impeccable constitutional statute analysis, Justice Jairus Ngaah noted that the Data Protection Act was “enacted against the backdrop of Article 31 of the Constitution.” Article 31 of the Constitution of Kenya 2010 guarantees the right to privacy. As the learned Justice noted, in its very preamble, the DPA stated that its purpose was to “give effect to Articles 31(c) and (d) of the Constitution.” Justice Ngaah then rightly observed, “The need to protect the constitutional right to privacy did not arise with the enactment of the Data Protection Act; the right accrued from the moment the Constitution was promulgated.”

The judgment of the High Court of Kenya provides an additional, fascinating implication that flows from the finding that a law is a constitutional statute.

It therefore followed that, on the balance, an interpretation that gave the DPA retrospective effect was to be preferred over one that did not. A contrary interpretation would mean that the state was entitled to collect data and infringe the right to privacy even in the absence of a legislative scheme. Or, in other words, having failed to implement its positive obligation to enact a constitutional statute to give effect to the right to privacy, the state could then take advantage of its own failure by nonetheless engaging in data collection enterprises anyway. This, naturally, could not be countenanced. And in any event, given that Article 31 had always existed, it followed that:

. . . there was always the duty on the part of the State to ensure that the Bill of Rights . . . is respected and protected. Section 31 of the Act does not impose any more obligation or duty on the state than that which the state, or the respondents . . . have hitherto had to bear.

On this basis, Justice Ngaah therefore held that NIIMS had been rolled out in breach of Section 31, and therefore, first, quashed the rollout itself, and secondly, issued a mandamus restraining the State from rolling it out again without first complying with Section 31.*

The judgment in Katiba Institute does not, of course, answer the number of questions that still remained to be resolved after the Nubian Rights Forum judgment, including some problematic aspects of the DPA itself. Those questions were not, however, before the court in this instance; on the other hand, the court’s finding that constitutional statutes apply retrospectively – and the reasons for that finding – make it a landmark judgment. Katiba Institute adds to the growing comparative discussion around constitutional statutes, Fourth Branch bodies, and “Guarantor Institutions”, and therefore ought to be keenly studied by students of comparative constitutional law.

* One cannot, of course, help comparing this with the judgment of the Indian Supreme Court in the Aadhaar case, where despite the fact that Aadhaar data was collected for more than five years without any law whatsoever, it was retrospectively validated by the Supreme Court.

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The Pandora Papers Reveal the Dark Underbelly of the United Kingdom

Through its network of tax havens, the UK is the fulcrum of a system that benefits the rich and powerful.

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There’s the role, for instance, played by the British Virgin Islands, an overseas territory of the UK that functions as a tax haven. Czechia’s multimillionaire prime minister used the territory to hide his ownership of a chateau in France. Others, including the family of Kenyan president Uhuru Kenyatta and Vladimir Putin’s PR man, have made similar use of the islands to conceal wealth – while Tony and Cherie Blair reportedly saved £312,000 in stamp duty when they bought a London property from a company registered in the British Virgin Islands in 2017.

Then there’s London itself. The leaked documents show how the King of Jordan squirreled personal cash away in the capital’s property market, as did key allies of Imran Khan, Pakistan’s president.

More details will emerge in the coming days. But one thing is already clear. This isn’t a story about countries on the periphery of the world economy. It is a story about how the British state drives a global system in which the richest extract wealth from the rest.

British through and through

The British Virgin Islands were captured by England from the Dutch in 1672. By then, the indigenous population had already gone – either slaughtered in an unrecorded genocide or fled for fear of one. The islands have been a haven for pirates of various sorts ever since.

But this is just one part of Britain’s offshore network. There are around 18 legislatures across the globe that Westminster is ultimately responsible for. These include some of the worst offenders in the world of money laundering, tax dodging and financial secrecy. The Cayman Islands are British. So is Gibraltar. So are Anguilla and Bermuda.

These places aren’t just British in an abstract sense. Under the 2002 British Overseas Territories Act, their citizens are British citizens. They operate under the protection of the British diplomatic service. And, when need be, they can rely on Her Majesty’s Armed Forces: in the last 40 years, Britain has twice gone to war to defend Overseas Territories. Once was when Argentina tried to claim back the Falklands/Malvinas. The other time was the invasion of Iraq, when the British government claimed that Saddam Hussein’s weapons programme threatened its military bases at Akrotiri and Dhekelia on the island of Cyprus.

This complexity is no accident

In total, experts estimate, Britain and its overseas territories are responsible for facilitating around a third of the total tax dodged around the world. And that’s before we consider money stolen by corrupt rulers, or the proceeds of crime. Not to mention the way that billionaires’ hidden wealth allows them to influence our political systems in secret.

This complexity is no accident. The UK, unlike almost any other country on earth, lacks a written constitution. The rules about how the rules are made are set through ‘convention’, an endless fudge that ultimately amounts to them being made up by our rulers as they go along.

We see this most clearly in how the domestic territories of the British state are governed: Scotland, Wales, Northern Ireland, Greater London and the City of London each has its own arrangements, each absurd in its own way. Each of these messes leaves a different tangled thicket in which the crooks of the world can hide their cash.

Seen from the perspective of international capital, though, it is the Overseas Territories, as well as the Crown Dependencies of Jersey, Guernsey and Mann, which form the most significant part of this complex. They use the malleability of the British constitution to form a network of safes in which the rich can hide their cash.

A new era

Although no one knows for sure how much money is hidden in tax havens, of which the British territories make up a significant chunk, the figures involved are so vast that academics at the Transnational Institute in the Netherlands have described them as “the backbone of global capitalism”.

Seen this way, the constitutional flexibility of the British state isn’t just some post-medieval hangover. It’s a hyper-modern tool in an era of global surveillance capitalism, where the rich can flit around offshore while the rest are forever trapped by borders.

Through its empire, the British state played a key role in inventing modern capitalism. Now, the UK is helping reinvent capitalism once more, by extending the protection of a constitution designed by the powerful, for the powerful, to the billionaires, oligarchs and criminals of the world.

Adam Ramsay is openDemocracy’s main site editor. You can follow him at @adamramsay. Adam is a member of the Scottish Green Party, sits on the board of Voices for Scotland and advisory committees for the Economic Change Unit and the journal Soundings.

This article was  first published by Progressive International

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