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State of the Nation: Corruption: A Brief History – 1997 to 2018

8 min read.

By the twilight of the Moi era, the effects of economic plunder had restructured Kenyan society. 20 years on, under UhuRuto, corruption is better dressed, digitised and speaks finer English. No family is untouched by it. For the millennial generation, the social and economic effects of moral collapse have profound personal consequences. By JOHN GITHONGO

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State of the Nation: Corruption: A Brief History - 1997 to 2018
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My brief sojourn in government from 2002 until 2005 began on the wave of an anti-corruption agenda that Kenyans had bought into. The NARC coalition that swept into power at the end of 2002 was really no more than a collection of rebelling KANU politicians who had the backing of civil society and the religious fraternity fired up by wananchi utterly exhausted with 24 years of President Daniel arap Moi’s stagnating regime. NARC also had a solid economic plan and an anti-corruption platform. For some months in government part of my job in the Office of the President was helping to manage the contradictions caused by citizens arresting policemen and civil servants caught soliciting bribes. The Public Complaints Unit (PCU) that eventually became the Ombudsman’s office emerged out of this in 2003/4.

We were all excited at the possibilities of transformation. The administration was full of leading ‘reformers’, among them Kiraitu Murungi, Anyang Nyong’o and Raila Odinga. And those who were not in government were advising it: Makau Mutua, Maina Kiai, Gibson Kamau Kuria, David Ndii, Kivutha Kibwana to name only a few. They all occupied the same space in the State. Harris Mule, David Ndii and Caleb Opon put together the Economic Recovery Strategy.

However, we learnt quickly that while we were in office, we were not in power. While the anti-corruption push, led from the front by President Mwai Kibaki, started with a bang it faltered within eight months. From my vantage point in the Office of the President there were three immediate reasons for this.

First of all, the nexus of the Office of the President (which included all security and defense agencies) and the Ministry of finance was the fulcrum of corruption in Kenya. And it was from here that a gaggle of civil servants engineered a successful counter-reform effort. Through a series of circulars, directives, committees, commissions and endless meetings, the fight against corruption was bureaucratised, effectively reduced to an annual laundry list by the anti-corruption authority of what they mostly hadn’t achieved, and the odd court appearance by suspects wearing broad smiles and expensive suits. The public treated the emerging charade with deepening derision.

We learnt quickly that while we were in office we were not in power. While the anti-corruption push, led from the front by President Mwai Kibaki, started with a bang it faltered within eight months.

This bureaucratisation was sealed when Kenya ratified the United Nations Convention Against Corruption (UNCAC) in 2003 – a case of policy surrender if ever there was one. The expertise of the World Bank, IMF and other donors in this area was unchallenged, programmatised and affirmed. Our political class had outsourced anti-corruption. This was ironic given the improvements in economic management that gave the regime considerable leeway to define the fight against graft within our own particular African political reality.

Secondly, some of my own colleagues were essentially ‘bought off’ or overcome by greed, all rigorously and robustly justified. Some were refreshingly honest about it. One cabinet minister told me directly, “After 10 years in the opposition we have to eat, John, and if it means shaking down banyanis – sawa!” Others – much to my surprise, it was the ones who’d been most vocal against the ‘Moi dictatorship’ and were activists for good governance, transparency, human rights etc – degenerated into very basic ethnic chauvinists. One colleague, who has done very well for himself and his practice since 2003 to date – whispered to me one evening in Kikuyu: “We have arrived! This thing is ours John. We can never let it go.” He was as, as they say, a grown ass man, as excited as a child allowed into the cookie shop at night. For this lot ‘eating’ was a tribal right that had been earned by years in Moi’s political wilderness.

Much to my surprise, those who’d been most vocal against the ‘Moi dictatorship’ and were activists for good governance, transparency, human rights etc, deteriorated into very basic ethnic chauvinists. One colleague, who has done very well for himself and his practice since 2003 to date – whispered to me one evening in Kikuyu: “We have arrived! This thing is ours We can never let it go.”

I remember one group of senior colleagues who’d been given an all-expenses paid trip to Asia. They returned with new clothes, expensive watches and their skins glowing from massages and other ‘treatments’ that had been laid on. Before long if you wanted to chat with a senior colleague about something urgent it was easier to catch them at the building site of a house that was being expanded or built from scratch. Or even better, at the home of a second wife or concubine, where the mood was far more relaxed.

Thirdly, there were those for whom state power had always been about business – ‘reforms’ were an after-thought. Many of them were former bureaucrats who’d gone into politics. Some of them were old-school types – bright, well educated, experienced and systematic in the affairs of government. It was utterly fascinating watching them slip and slide. At first everyone tried to be at all the important policy meetings, to contribute to the great changes underway. Among these were some of the key players around the President – the so-called Mount Kenya mafia. Within months though, they started to spin away. The amount of time dedicated to official business declined. They stopped picking up their phones. They would eventually be tracked down at country clubs, or meeting bankers, architects, lawyers – transacting.

 

*******

 

Earlier this week President Kenyatta, while addressing the 8th Presidential Roundtable Forum hosted by the Kenya Private Sector Alliance (KEPSA), railed against corruption condemning the vice and noting accurately that it had the potential to undermine his Big Four agenda ‘and completely destroy the country’.

Of all Kenya’s heads of state, Kenyatta has been by far the most articulate against graft – and the least successful in fighting it. Painfully aware of this stark dichotomy, he has sometimes launched angry tirades and, at other times, defeated proclamations with regard to the rampant theft and plunder his regime has overseen.

These failures were never more apparent than when Kenyatta delivered his fifth State of Nation address to parliament earlier this month: Watching his speech, I was struck by the extent to which despite his proclamations and purported actions with regard to graft since 2013, the Kenyatta regime is stuck in a situation and condition very similar to that of Moi in 1997 despite vastly different circumstances.

By the late 1990s the Moi regime had literally emptied the public coffers. The giant Nyayo Era patronage machine was operating under the constraints of the IMF and World Bank’s stringent fiscal policy supervision. Teams of technocrats sent from Bretton Woods were drafting policy, dictating budgets and keeping a watchful eye on the till. But somehow the Nyayo Machine found a way. Taking advantage of the Bretton Woods’ prescribed massive offloading of public assets – especially land, houses and other assets owned by parastatals, the railways, universities, etc – they literally dished these out to themselves. Some of these assets were disposed of and quickly entered the bloodstream of the banking sector. The building boom in Nairobi’s Upper Hill harks back to this time. Many of the current shenanigans in the NSSF, NHIF, telecoms and power sector were seeded in the ‘liberalisation’ and ‘privatisation’ processes that were pushed through back then. It’s worth noting that the current anti-corruption agency was itself a creature of this IMF-Nyayo compromise.

The giant Nyayo Era patronage machine was operating under the constraints of the IMF and World Bank’s stringent fiscal policy regime. But somehow it found a way. Taking advantage of the Bretton Woods’ prescribed massive offloading of public assets – especially land, houses and other assets owned by parastatals, the railways, police etc – cronies literally dished these out to themselves. Some of these assets were disposed of and quickly entered the bloodstream of the banking sector. The building boom in Nairobi’s Upper Hill harks back to this time.

The impact of the regime’s plunder back then was to restructure society in ways reminiscent of what’s happening today. While newspapers regularly carry headlines on the latest scandals Kenyans have become numb to them. Economist David Ndii recently observed that ‘the Uhuruto kleptocracy has plundered Ksh. 350 billion (US$3.5 billion) since 2013, ranking fifth in the world kleptocracy league table, right behind Mobutu and Abacha  (US$5 billion), Ferdinand Marcos (US$10 billion) and Indonesia’s Suharto at US$35 billion’.

The logic of the looting since 2013 has been different, however. It is driven by a Faustian pact between the Kikuyu elite led by Uhuru Kenyatta and the Kalenjin elite organised around Deputy President William Ruto. It was a pact forged out of the 2007/8 Post-Election Violence and the subsequent International Criminal Court (ICC) indictments. It has turned out to be the most expensive political coalition in Kenya’s history and one that has liberalised corrupt activity to an extent that for a generation of millennials it has been normalised

 As I said, the 1990s was a similar time in terms of theft and plunder in Kenya. The regime deliberately ensured it was so pervasive – that everyone was touched by it. As a result, many Kenyans were gripped by a moral paralysis. Today, the elite has gorged so wildly and widely that there is no one who isn’t affected by it in very practical ways. This is especially true of the urban middle class, historically the primary articulators of the country’s governance-related aspirations. Because, almost every family today has a wheeler-dealer flashing rapidly accumulated wealth while being reticent about discussing its sources. We all have a cousin with a ‘ka-contract’ of the NYS, Kenya Power & Lighting variety; a nephew who’s paying the odd kickback to keep business going and justifying it with persuasive arguments. Many of us have a relative or a friend sleeping with so-and-so for this and that, in these deeply unequal times where a weekly sexual escapade, no matter how distasteful, can totally transform one’s life and that of their family.

Today, the elite has gorged so wildly and widely there is no one who isn’t affected by it. This is especially true of the urban middle class…[A]lmost every family today has a wheeler-dealer flashing rapidly accumulated wealth while being reticent about discussing its sources. We all have a cousin with a ‘ka-contract’ of the NYS, Kenya Power & Lighting variety; a nephew who’s paying the odd kickback to keep business going and justifying it with persuasive arguments.

We all have Harambees for medical bills, school fees and other domestic crisis where the preferred guests of honour are those closest to the plunder. And so, a toxic cloud hangs over even the best of us. Many single malts are downed justifying why things have to be the way they are while simultaneously decrying the situation.

Part of the genius of crony capitalism and theft-fed plunder is to ensure as many people are touched by it as possible even if all it means is owing a favour.

The real difference between the present and the 1990s is that the normalisation of plunder is better educated, better dressed, speaks finer English, is digitised and has aspirations equivalent to their metropolitan counterparts in the West. The architecture of theft is conceived not by whispering bureaucrats and politicians in drinking dens but well coiffured lawyers, accountants, bankers, lawyers and the exotic breed of ‘investment advisors’ with MBAs who invest in the arts, join wine tasting clubs and are as impressive when discussing the Kenyan Stock Exchange as they are holding forth on Brexit. Corruption smells better in 2018, it is better dressed and better read. That said, there is still a vicious model of extortion for corrupt purposes that has become prevalent at top levels of the regime.

Ultimately, the plunder Jubilee has unleashed is constructed on a bed of conflict of interest that necessarily involves rotting the public services sector, acquiring publicly-owned bodies on the cheap via privatisation exercises, and then corporatising the new private outfits through mergers and partnerships with global multinationals. This is best exemplified by the binge on foreign debt and the international cast of suspects that attend to it.

Just as the Arab Spring terrified authoritarians around the world closer to home, impatient millennials are pressuring the politics. They are at once cynical about change and desperate for it. Their university degrees are increasingly meaningless. They realize that you only get ahead if you are part of a racket or in the neighbourhood of one.

And yet one gets the distinct feeling that the elite realises the game cannot continue forever. Just as the Arab Spring terrified authoritarians around the world, closer home, impatient millennials are pressuring the politics. They are at once cynical about change and desperate for it. Their university degrees are increasingly meaningless. They realise that you only get ahead if you are part of a racket, or in the neighbourhood of one. For them inequality has never been more personally consequential. The Nigerian election in 2015 that saw Muhammadu Buhari ousting Goodluck Jonathan was in part a revolt driven by these forces. We’ve seen a former head of state imprisoned for corruption in South Korea. A couple of weeks ago former South African president Jacob Zuma was in the dock for corruption. This week the Malaysians, for the first time ever, voted the opposition into power led by a 92-year old former Prime Minister Mahathir Mohamed. One can’t help the thought that the giant Malaysian 1MDB scandal in that country had something to do with these extraordinary political developments. Elites here too will have to duck and dive to stay ahead.

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John Githongo is one of Kenya’s leading anti-graft campaigners and former anti-corruption czar.

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