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Faulty Towers: Why Uhuru’s Housing Plan Is Dead on Arrival

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91 percent of Nairobians are tenants. WIth perhaps the best intentions – to turn slum dwellers and others into homeowners – Jubilee’s affordable low-cost housing agenda ignores a huge body of authoritative research that clearly demonstrates that for urban dwellers, home ownership at ‘home’ is eminently preferable to a house in the big city. By RASNA WARAH. 

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Faulty Towers: Why Uhuru’s Housing Plan Is Dead on Arrival
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The eviction of nearly 30,000 people from Kibera, Nairobi’s largest slum, in the coldest month of the year has left many wondering whether the Jubilee administration is serious about its “Big Four” agenda, whose key pillar is affordable housing, along with manufacturing, universal healthcare and food security. The evictions, which have been taking place to pave way for a road, have left more than 2,000 families homeless and have led to the destruction of eight schools and a children’s home, according to the Star newspaper. The heartless demolitions have laid bare the government’s lack of understanding of the nature of informal settlements and low-income housing in the city, and why solutions to the housing problem must be found within the beneficiary communities, and not in private sector-led initiatives.

As part of its Big Four agenda, the government says it has allocated Sh.6.5 billion to building 500,000 housing units for low-income households across the country; 100,000 of these units are categorised as “social housing” for households earning less than Sh14,499 a month and another 400,000 units are categorised as “affordable housing” for those earning between Sh15,000 and Sh49,999 a month. Housing for households in the Sh.50,000 to Sh99,999 income bracket will supposedly fall under some kind of mortgage scheme. Ten per cent of the funding for the programme is expected to come from the government, 30 per cent is expected to come from the National Social Security Fund and the rest (60 per cent) is expected to come from the private sector.

One of the fundamental problems with this ambitious programme is that it assumes that owning a home is a priority among low-income households in cities such as Nairobi. This has proved to be a wrong assumption time and again. Studies have shown that home ownership is usually at the bottom of the list of priorities among Kenya’s urban poor: most low-income city dwellers are more concerned about getting and keeping a job, and having enough money to pay for food, water, electricity, school fees and other necessities.

Besides, since a large number of low-income people living in Nairobi and other large urban centres are migrants from rural areas, their priority is not owning a home in the city but improving their homes and farms in their villages. Because of lack of adequate affordable housing for the poorest of the urban poor, a large majority of these migrants end up renting shacks (many of which are owned by middle class Kenyans or powerful individuals) in places like Kibera, where they pay rents ranging from between Sh500 to Sh3000 a month. Urban dwellers who view their stay in the city as temporary will not want to get into long-term repayment/mortgage plans that tie their income for lengthy periods.

One of the fundamental problems with this ambitious programme is that it assumes that owning a home is a priority among low-income households in cities such as Nairobi. This has proved to be a wrong assumption time and again. Studies have shown that home ownership is usually at the bottom of the list of priorities among Kenya’s urban poor: most low-income city dwellers are more concerned about getting and keeping a job, and having enough money to pay for food, water, electricity, school fees and other necessities.

While slum life presents several daunting challenges (Nairobi has even gained the dubious distinction of having among the worst slums in the world, with residents having access to few, if any, basic services, such as sanitation and water supply), it allows new migrants and older residents to pay less for housing than they would in an apartment in other low-income neighbourhoods where rents can range upwards of Sh15,000 a month. For a casual labourer earning less than Sh15,000 a month, the latter option is completely out of reach. Slums, therefore, fill a housing need that the government is unable to meet.

Moreover, as a recent World Bank study revealed, the majority of urban dwellers in Kenya rent their housing, and have neither the means nor the inclination to buy or build houses, especially in urban areas. In Nairobi, for instance, where the average monthly income is in the range of Sh26,000, the average household can only afford to pay a monthly rent of about Sh8,000 or about one-third of its income, which is way below what a mortgage would cost for a low-cost house costing, say Sh2 million. In Mathare, for example, ownership schemes have failed because the residents simply didn’t have the means to make the repayments.

The study, published in 2016, found that 91 percent of households in Nairobi are tenants and only 8 per cent of them either own the structure (but not the land) they live in or own both the land and the structure. The same study also revealed that about 60 percent of urban dwellers in Kenya live in one-room units that could qualify as a slum household as they lack one of more of the following: running water in the unit or building; permanent walls; a toilet shared by fewer than 20 people; and sufficient sleeping space. From a policy perspective, it is clear that what is needed is not more home ownership (which is in any case beyond the reach of the majority of people living in the city) but more affordable rental units that allow these people to move out of slum conditions.

Moreover, as a recent World Bank study revealed, the majority of urban dwellers in Kenya rent their housing, and have neither the means nor the inclination to buy or build houses, especially in urban areas. In Nairobi, for instance, where the average monthly income is in the range of Sh26,000, the average household can only afford to pay a monthly rent of about Sh8,000 or about one-third of its income, which is way below what a mortgage would cost for a low-cost house…

In most advanced industrialised countries, the shortfall in affordable housing is usually met by what is known as social or public housing, which is subsidised housing that is targeted at those low-income or vulnerable groups that cannot afford housing at market rates. In most European countries, social housing is subsidised and managed by the government or the local authority, which collects the below-market rents from tenants and which is also responsible for things like maintenance and cleanliness.

Although high-rise social housing in places such as London has often been referred to as “vertical slums” because of its poor quality and human-unfriendly designs – epitomised by the 24-storey Glenfell Towers in London, which burnt down in June 2017, killing 72 people and injuring several others – this type of housing has helped prevent many families from sinking into homelessness.

In the 1960s and ‘70s there were many such City Council housing units in Nairobi: the advantages of living in such accommodation included affordable rents and access to essential services, such as garbage collection and water. Security of tenure was also assured as the authorities had to make a strong case for evicting the occupants. Low or middle cadre civil servants, among others, were usually the main beneficiaries of such housing.

With the move towards privatisation and public-private partnerships (PPPs) in the 1980s and ‘90s, such housing lost favour in policy circles worldwide, mainly because of the costs involved and a general trend within international development agencies to promote free markets and liberalisation. Governments were encouraged to create “an enabling environment” to allow people to build and own their own homes by putting in place the policy and legal frameworks that would “enable” people to own houses with the help of the private sector – a concept encapsulated by Public-Private-Partnerships.

However, as a report commissioned and published this year by the NGO Hakijamii has noted, public-private partnerships carry enormous risks in a country like Kenya as they could ultimately end up benefiting the middle classes, not those who are most in need of low-cost housing. Corruption is another factor to consider in Kenya, where tenders for such large-scale government projects end up benefiting politically-connected individuals and their godfathers and where cutting corners is part of the deal. It is not hard to imagine a scenario where the proposed low-cost housing units will be allocated to politically influential individuals or will be “sold” to undeserving cousins, sisters and uncles of government officials in charge of the programme.

The 1980s also saw a rise in so-called “sites and services” and “slum upgrading” projects, most of which have a record of failure because they did not consider the priorities of the beneficiaries or because their designs were flawed. In Kibera, for instance, the Kenya Slum Upgrading Programme, a joint project of the Government of Kenya and UN-Habitat, saw beneficiaries selling off their units and moving back to the shacks they came from. If the new home owners had been encouraged to form a cooperative that prevented them from selling off the units, this scenario might not have emerged. Those who are familiar with the project have also reported that many services, such as water, are not regular. It has also been reported that the Kibera slum upgrading project did not solve the problem of overcrowding as beneficiaries rented out some of the rooms in their apartments in order to afford the repayments – a practice that the project’s designers apparently encouraged.

Moreover, the design and construction of these high rise multi-storey apartment buildings did not consider that home-based enterprises are the livelihoods of a majority slum dwellers, so open areas and street-level stalls should have been part of the design and architecture. In cities such as Mumbai, beneficiaries of housing projects have been known to move out because they cannot sell their wares, such as cooked food, vegetables and other items, from the third floor of a building. (This is why a high-rise market proposed for hawkers and petty traders in Nairobi is likely to fail.) Slum upgrading programmes in other countries have also not been successful because they failed to consider that residents want to live near where they work – if they are moved to peri-urban areas that are far from where they work, they tend to move back to slums that are near their place of employment.

Many urban poor communities, especially in low-income countries, prefer housing that allows them to conduct business as well. Single-storey housing with shared courtyards are, therefore, preferred. This type of housing was very prevalent in Asian-dominated neighbourhoods such as Pangani in Nairobi decades ago. Several families would rent rooms situated around a common yard where all the families could cook, wash clothes and carry out other household chores. Open spaces are also important to reduce indoor air pollution caused by the use of charcoal or kerosene for cooking – a common practice among low-income families in Kenya. This is why community participation and involvement is critical before such projects are initiated.

Slum upgrading in places such as Kibera and other slums in Nairobi is further complicated by the fact that the majority of the residents are tenants, not squatters i.e. they did not invade public or private land and did not build the structures they live in. In Kibera, most of the land is public and the structure owners are private individuals who obtained permission to build on the land through patronage networks involving local chiefs. In such cases, the question arises of who should benefit from the slum upgrading project: the government (which could recoup its slum upgrading investments through rental income), the structure owner (who should ideally be compensated for the loss of the structure, even if it is just a mud-and-tin shack) or the tenant (who may or may not want to own a home in the slum because he or she has aspirations to move out of the slum eventually or to go back to his or her rural home)?

In Kibera, most of the land is public and the structure owners are private individuals who obtained permission to build on the land through patronage networks involving local chiefs. In such cases, the question arises of who should benefit from the slum upgrading project…

A study in the UK in the 1990s found that “cooperatives provide more effective housing management services with usually better value for money and deliver wider non-quantifiable social and community benefits”. Cooperatives also foster consultation and public participation, core values of Kenya’s constitution.

One of the reasons put forward by international development experts for encouraging home ownership is that it is the most reliable way of ensuring security of tenure, and encourages home owners to invest in and improve their houses. (Yet, it is important to note that even in the most advanced countries, such as Germany and Sweden, the majority of people rent rather than own their housing.) In his book The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else, Hernando de Soto argues that because property ownership is the foundation upon which capitalism thrives, the poor must be encouraged to own their assets (namely, property) which they can then use to invest in businesses (for example by obtaining a loan against the title deed). This thinking is what has probably propelled the government of Kenya to take the home ownership route to affordable housing.

To bring down the cost of such housing for both rent and ownership, housing units could be made of low-cost materials rather than the expensive stone and concrete that is demanded by Kenya’s ridiculously high housing standards. People could be encouraged to form cooperatives so that the costs are shared and to ensure that the housing benefits the real beneficiaries, not others.

But, as I have tried to argue, home ownership is not the top priority among low-income urban households. Social housing provided by county governments could be an option but the cost of subsidising such housing could prove to be unsustainable in the long term. However, if properly managed, this option is practical if rental income from it can bring in steady and substantial revenue for county governments – and if corruption is not allowed to derail the project. But for this to happen, the right policy and legal frameworks need to be in place, both for county and national governments.

On the other hand, if public-private partnerships remain the most viable option, then the emphasis should be on low-cost rental housing or cooperative housing, not individual ownership. The longer term aim, of course, should be to improve the incomes of all Kenyans so that city dwellers are able to afford the the kind of housing they choose to live in, and are not forced to move into shantytowns because there are no other affordable options.

We must also consider that the government’s ambitious housing project may become a victim of Kenya’s deadliest disease – corruption – which could stall or distort efforts to make affordable housing available to those who need it most.

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Rasna Warah is a Kenyan writer and journalist. In a previous incarnation, she was an editor at the United Nations Human Settlements Programme (UN-Habitat). She has published two books on Somalia – War Crimes (2014) and Mogadishu Then and Now (2012) – and is the author UNsilenced (2016), and Triple Heritage (1998).

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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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