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Thieves, Politics & the Brutality of Succession: The Kenyatta Legacy

7 min read.

Uhuru’s contentious second term may have opened with the announcement of his ‘Big Four Agenda’ last November; in reality, his final term has only really taken off with the mysterious March 9 ‘handshake’ with Raila Odinga. Both initiatives are personal attempts to craft a legacy – and they are being sabotaged by his administration’s severe addiction to graft, as the latest convulsion of scandals so tellingly demonstrate. How will Kenya’s fifth president be remembered? By JOHN GITHONGO. 

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“If a man became a habitual thief, he was looked upon as a public danger and was put to death publicly, sometimes by being beaten to death or burnt in the same way as a witch or wizard. In Gikuyu society theft and witchcraft were considered very serious criminal offenses.”
– Jomo Kenyatta, Facing Mount Kenya

In 1972 Lt. Col. Mathieu Kérékou became Benin’s head of state through a coup and proceeded to run the country as its ruthless ‘Marxist Leninist/socialist’ dictator until 1990. The small West African nation was the first on the continent to transition to democracy in the ‘wind of change’ that blew across Africa after the fall of the Berlin Wall in 1989. Kérékou, popularly known as the ‘Chameleon’ for his capacity for political reinvention, accepted defeat in elections in March 1991 to the Paris-educated ex-Finance Minister and ex-World Bank/IMF official Nicéphore Soglo. Five years later in 1996, in an amazing political rebound, Kérékou defeated Soglo to become the country’s second ever democratically elected head of state.

Kérékou ruled Benin until 2006 and passed away three years ago. His versatility speaks volumes about how Africans regard their leaders. That he was able to unseat Soglo in 1996 was in part a testament to his capacities as a political ‘chameleon’, but also Soglo’s painful economic measures and the corruption that swirled around his generally liberal administration. Africans generally place great currency on leaders who demonstrate often-contradictory qualities: at once firm but also humble, for example. That said there is no type of leader that is given greater leeway by Africans than the one who is not only not a thief but one whose family members as well are not perceived to be thieves. The legacies of clean men are far more resilient in the African collective memory than those of strong leaders, clever ones, those who are good managers, those who implement giant programmes, etc. It is thus that Tanzania’s Mwalimu Nyerere’s memory remains hallowed. Much like that of Thomas Sankara of Burkina Faso. Similar underlying sentiments and attitudes saw Muhammadu Buhari elected President of Nigeria in 2015. He was an aging former military dictator who’d ruled for a short time (31st December 1983 to 27th August 1985) with painful paternalistic firmness, but, unlike almost all his predecessors Buhari had and has retained one critical quality – he and his family are not perceived to be thieves.

There is no type of leader that is given greater leeway by Africans than the one who is not only not a thief but one whose family members are not perceived to be thieves. The legacies of clean men are far more resilient among Africans than those of strong leaders, clever ones, those who are good managers who implement giant programmes, etc. It is thus that Tanzania’s Mwalimu Nyerere’s memory remains hallowed. Much like that of Thomas Sankara of Burkina Faso.

When Kérékou realised his game was up during a National Conference in 1990 he orchestrated a brilliant piece of political theatre. In a nationally televised event he spoke to the Archbishop of Cotonou, Isidore de Souza, confessed his guilt and begged for forgiveness for the excesses of his regime since 1972. When he lost the election in March the following year he retired to his village, became a born-again Christian and lived a humble, quiet life. All of this resonated with the Beninese people profoundly enough that he was able to emerge out of his village in the north to unseat Soglo in 1996.

*****

On the 2nd of May, during his state of the nation address to parliament, President Uhuru Kenyatta asked for the forgiveness of Kenyans for anything he may have done or said anything to undermine the unity of Kenyans especially during the divisive election of 2017. Kenyatta had made a similar apology for KANU’s excesses in September 2004. This time the apology followed a ‘handshake’ political ceasefire with Raila Odinga on the 9th of March that has set in motion political realignments that seem to grow in scale with each passing week.

Kenyatta started his final term as president pronouncing that his regime would focus on four priority areas; a ‘Big Four Agenda’: affordable healthcare; affordable housing; food security and manufacturing. As the month of May drew to an end I’m pretty confident that, if asked to name the four pillars of the Big Four Agenda, a vast majority of Kenyans would be unable to do so. The cost of living and more importantly theft and plunder are the issues that have seized the public imagination. This is partly as a result of the fact that between 2013 and 2017 the Jubilee regime has emerged as the most scandal-prone and corrupt in Kenyan history. The list of dodgy projects and scams has grown steadily over the last almost six years. Early in 2013, there was a scandal surrounding the renting of an aircraft for Deputy President William Ruto that allegedly cost Kenyans US$1 million or thereabouts. This was followed by a series of other scandals involving the Ministry of Health, Ministry of Finance, Ministry of Education, Office of the President and institutions such as the National Cereals and Produce Board (NCPB), National Youth Service (NYS), Kenya Power, Kenya Airports Authority (KAA), the National Youth Fund, the Independent Elections and Boundaries Commission (IEBC), police, railways among others. Up to US$3.5 billion is estimated to have gone walkabout.

I’m pretty confident that, if asked to name the four pillars of the Big Four Agenda, a vast majority of Kenyans would not be able to do so. The cost of living and more importantly theft and plunder are the issues that have seized the public imagination. This is partly as a result of the fact that between 2013 and 2017 the Jubilee regime has emerged as the most scandal prone and corrupt in Kenyan history.

A couple of weeks ago another series of mega scams hit the front page of the national newspapers. The institutions implicated in the latest swath of exposés were more or less the same ones as those reported between 2013 and 2015. Speaking to the private sector at one of their meetings even President Kenyatta admitted that his Big Four agenda didn’t stand a chance given the manifestly rampant levels of corruption. The National Council of Churches of Kenya (NCCK) chimed in admitting that we are living under Kenya’s most corrupt regime and even somewhat surprisingly the Kenya Private Sector Alliance (KEPSA) spoke forthrightly in this regard as well.

Through most of May a series of exposés have been covered by the media in such titillating detail that it has caused observers to point out two things: first, its clear that the information about the scams is leaked from within the State itself and not painstaking months of investigations by media houses. This has fuelled speculation that it’s all part of a wider political move. Second, the State’s ostensible outrage and even the President and Deputy President’s promises that this time ‘no stone will be left unturned’ in bringing those behind the scams to book, have been met with considerable public skepticism. This is despite one of the most dramatic police actions against suspects involved in corruption just this past week when tens of bureaucrats and businesspeople were arraigned in court as a result of the latest episode of theft from the NYS. Conspicuously missing were the political actors that shepherd all big scams through the system.

Also of some fascination was the fact that after the March 9th handshake, it is clear that the ‘corruption crisis’ is playing out at a time of political realignments as Kenyatta serves out his last presidential term and his deputy William Ruto ramps up his own political machine to contest the 2022 elections.

Events over the past week, with the Directorate of Criminal Investigations; Attorney General’s office and the Office of the Director of Public Prosecutions leading the theatrical and highly media-friendly response to the latest ructions, have only served as fodder for those who see the unfolding events as a cynical political play in the familiar Kenyan tradition. As a friend observed to me this week: “This is some cold, cynical Machiavellian sh** taking place right here!”

Another interesting aspect of the latest developments is the fact that the president has clearly passed on the burden of prosecuting the ‘war against corruption’ to a new cast of players who have taken to the stage with unusual enthusiasm. The new boss at the Directorate of Criminal Investigations, George Kinoti, has a reputation as a hands-on policeman. Sources who know our leading detective agency point out that in the past Kinoti has led efforts to dismantle groups within the force that had themselves become criminal. The Director of Public Prosecutions was recently appointed direct from the national spy service and he has also adopted an exuberant posture. Kenya has a new Attorney General too, the amiable and plain speaking, Paul Kihara Kariuki, who took the unusual step of essentially taking a demotion from the Court of Appeal where he was a senior judge to become the new AG. This combination has lent new impetus to the anti-corruption drive. Given Kenya’s vexed history though, the scepticism with which these activities is no surprise. Conspicuously absence from this new cast is the Ethics and Anti-Corruption Commission (EACC), constitutionally charged with leading the charge against corruption. It is notable that Kenyans have not considered the Commission’s absence worthy of any serious debate.

Sources who know our leading detective agency point out that in the past Kinoti has led efforts to dismantle groups within the force that had themselves become criminal. The Director of Public Prosecutions was recently appointed direct from the national spy service and he has also adopted an exuberant posture. Kenya has a new Attorney General too, the amiable and plain speaking, Paul Kihara Kariuki, who took the unusual step of essentially taking a demotion from the Court of Appeal where he was a senior judge to become the new AG. This combination has lent new impetus to the anti-corruption drive.

What has been clear for some time is that Uhuru Kenyatta’s legacy won’t be initiatives like the Big Four. Indeed, the irrepressible Kenyans on Twitter (KOT) were already speculating about how the Big Four would be ‘eaten’ via a series of the kind of ‘tenders’ we have become accustomed to. The ‘handshake’ with Raila Odinga and how Kenyatta emerges from the ostensible struggle against the theft and plunder that has characterized his regime thus far, will likely have a more significant bearing on how Kenyans will remember him than railways and houses. The wealth this plunder has made available to our elite is essential to the structure and norms of our politics. It could therefore be that Mr. Kenyatta may have embarked on a project that can only succeed via the catalysing of a process to re-engineer Kenyan politics.

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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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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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