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Bulldozers Knocking down Temples and Other Distractions: Awakening the Ghosts of Jubilee’s Corruption

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Fighting corruption in a developing country where governance institutions are nascent is always a political affair. Kenyatta’s current efforts are no different but mask a more urgent crisis, itself caused in part by a culture of profligacy and theft: the looming insolvency of the Jubilee regime that has forced them into a harsh austerity programme. Add to this – giant corruption scandals, the abortive efforts to fight them, have historically had a devastating effect on key governance institutions in Kenya. By JOHN GITHONGO

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In the middle of this month, a very Kenyan scandal erupted in our parliament. This followed a round of accusations regarding an investigation by the Trade, Industry and Cooperatives Committee of the House into the controversial importation of thousands of tonnes of raw sugar allegedly adulterated with heavy metals by individuals themselves allegedly associated with figures around the president, his family and other top officials. The committee produced a report into the scandal implicating a cross-section of senior officials only for the very same parliament to reject the document. It emerged that MPs had been bribed for sums as little as KSh 10,000 (US$100) for their votes. An investigation is supposedly now underway, ordered by the Speaker, Justin Muturi – in other words, there is an investigation of the scandal of the investigation of a scandal.

While there is general skepticism about these kinds of inquiries ever leading to any real censure of our politicians, the scandal about a scandal was illustrative of something more significant to me. In the months since the Kenyatta-Odinga ceasefire deal, the so-called handshake, Uhuru Kenyatta has been on an anti-corruption crusade that has seen senior officials hauled before court; lifestyle audits embarked upon; and illegally constructed buildings demolished. The administration plays its bells and whistles, and new words du jour – ‘riparian’ land is duly noted –   are peddled to exhibit the regime’s utter sincerity in this latest anti-corruption onslaught. The logic here appears to be that Mr Kenyatta is trying to put the corruption genie back into the bottle, manage his own political succession and establish a real legacy all at the same time.

Attempting to do this all at once has meant the anti-corruption crusade is even more political than these things usually are in developing countries. Indeed, in terms of grand optics this latest escapade appears maxed out with the arrest of a ‘big fish’, Evans Kidero, the former governor of Nairobi, and the made-for-TV demolitions of illegally constructed buildings. In terms of Kenya’s political progression, the ultimate candidate for arrest vis-à-vis corruption would be Deputy President, William Ruto and his cohorts. ‘Stopping Bill’, as I have argued before is first and foremost a political project with anti-corruption accompaniments.

The politics of anti-corruption was on display last week with the publication of a curious survey by Ipsos Synovate that asked who Kenyans thought were the most corrupt living politicians. The ‘winners’ were the Deputy President William Ruto and Kirinyaga Governor, Anne Waiguru, the former cabinet secretary in the scandal-ridden ministry of devolution. Both of them immediately cried foul and protested that their political enemies were targeting them to undermine their political ambitions.

Indeed, one of Mr Kenyatta’s more breathtaking achievements has been to distance himself from his own deputy and presumptive successor without openly coming out and saying so. This has been particularly confusing to the President’s largely Kikuyu ethnic base that has spent the past five years defending the President and his deputy as a collective. Among the more notable epiphanies among Jubilee’s Mt Kenya supporters is their sudden discovery of how evil Mr. Ruto is; it was quite the opposite a year ago when he was steering Jubilee’s election campaign. Thus is Kenya’s cynical brand of politics though. Outside his core Kalenjin constituency, only the mainstream churches, to whom Mr. Ruto has become an important patron, have remained steadfast in his implicit defense. But I digress.

The politics of anti-corruption was on display last week with the publication of a curious survey by Ipsos Synovate that asked who Kenyans thought were the most corrupt living politicians. The ‘winners’ were the Deputy President William Ruto and Kirinyaga Governor, Anne Waiguru, the former cabinet secretary in the scandal-ridden ministry of devolution. Both of them immediately cried foul and protested that their political enemies were targeting them to undermine their political ambitions.

The scandal in parliament served as a reminder that all corruption investigations, especially when they are a political response to public outrage or external pressure, specifically target key governance institutions. People around President Moi corruptly extracted 10 percent of GDP from the economy in the run up to the 1992 elections and after. Goldenberg brought the economy to its knees. It forced the Moi regime in 1993 to cave in to the Bretton Woods-inspired SAP austerity programme. Inflation skyrocketed, interest rates went through the roof, millions of Kenyans were impoverished as the cost of living ground them down, but the new air of political freedom seemed to assuage some of the pain. Now we could complain without being immediately locked up.

As part of the deal with the West, and also as a strategy manage public outrage about Goldenberg, the most convoluted and ineffective investigations and prosecutions of any scandal in Kenyan history were launched. Figures like Kamlesh Pattni, the late Wilfred Koinange, a former Treasury Permanent Secretary among others were regularly hauled before the courts as part of the wider Goldenberg prosecutions. By 2002 when the KANU regime was removed from power there were so many Goldenberg-related cases before the courts that no single government official could count them. They were all halted when Kibaki took office, and a Commission of Inquiry established. Despite it handing over its report in 2006 there has never been real accountability for Goldenberg and the over US$1 billion that was raided from the coffers.

Among the more notable epiphanies among Jubilee’s Mt Kenya supporters is their sudden discovery of how evil Mr. Ruto is; it was quite the opposite a year ago when he was steering Jubilee’s election campaign. Thus is Kenya’s cynical brand of politics. Outside his core Kalenjin constituency, only the mainstream churches, to whom Mr. Ruto has become an important patron, have remained steadfast in his implicit defense.

What the Goldenberg scandal demonstrated most starkly was the impact of these mega scandals on governance institutions, perpetrated by the same elite purporting to investigate them. No other scandal had damaged the credibility and public image of the judiciary more severely than Goldenberg. It was clear early on that huge sums of money flooded court corridors and totally paralysed that institution’s capacity to be even remotely effective in regard to land grabbing and general corruption matters. A slow and painful recovery process followed this shredding of the Judiciary. As part of this, a Judicial Service Commission was established in 2010 after the August promulgation of the new constitution to vet judges and revive the independence of the judiciary.

Source: Ipsos Kenya SPEC Barometer 2nd QTR 2018

The scandal-within-a-scandal regarding the dodgy sugar imports earlier this year can be seen in this light. This time around, it is the Legislature that is being targeted. Last week the Public Service Commission explained that it had halted the process of civil servants declaring their wealth citing the need for further clarification on process issues

Over the past few weeks, the greatest excitement in the anti-corruption fight was generated by the demolitions of properties illegally constructed on road reserves and riparian land. Over the past five years, about US$4 billion stolen from the economy has been laundered mostly through a real estate boom that has transformed Nairobi’s skyline and cities and towns across the country. The chilling effect and blow-back from this particular dimension of the anti-corruption campaign is difficult to exaggerate. Typically, millions of corrupt dollars is deployed as hush-money into parliament, the judiciary, investigating agencies, civil service and the media. A deliberate leak of a telephone conversation and between the governors of Nairobi, Mike Mbuvi Sonko, and Kiambu, Ferdinand Waititu, revealed what most of us have suspected – that the anti-corruption fight is politically choreographed. This calls into question its sincerity. It also tells us that the corruption of our governance bodies will likely be accelerated precisely to cover its tracks. Scandals within scandals.

The scandal in parliament served as a reminder that all corruption investigations, especially when they are a political response to public outrage or external pressure, specifically target key governance institutions.

****

I continue to be persuaded that the current fight against corruption is also aimed at rebooting Mr. Kenyatta’s legacy and that of his family in the light of the fiscal bind his regime finds itself in following five years of unprecedented profligacy and theft. The government is preparing to introduce a 16 percent across-the-board VAT tax on petroleum products in addition to levies already introduced that have raised the cost of living for ordinary Kenyans. It is clear that the Jubilee regime is in the middle of what can only be described as an IMF structural adjustment programme, Version 2.0.

A deliberate leak of a telephone conversation between the governors of Nairobi, Mike Mbuvi Sonko, and Kiambu, Ferdinand Waititu, revealed what most of us have suspected – that the anti-corruption fight is politically choreographed. This calls into question its sincerity. It also tells us that the corruption of our governance bodies will likely be accelerated precisely to cover its tracks. Scandals within scandals.

In truth though, this isn’t an IMF programme of the familiar variety from the 1980s and 1990s. Our own greed and incompetence has led us to this point. Indeed, the IMF and World Bank have been accommodating to the point of complicity over the past five years, looking the other way as Kenya’s foreign debt increased by two and a half times from US$9 billion to US$25 billion. As David Ndii argues, the Chinese debt-financed SGR alone accounts for 30 percent of this increase; another 30 percent is by sovereign bonds for which the country has nothing to show. Public debt now stands at KSh 860 billion (US$ 8.6 billion), a staggering 72 percent of the last financial year’s tax receipts.

I continue to be persuaded that the current fight against corruption is also aimed at rebooting Mr. Kenyatta’s legacy and that of his family in the light of the fiscal bind his regime finds itself in following five years of unprecedented profligacy and theft.

Facing insolvency the government has implemented a range of measures including the president halting all new project spending. Last week, the Council of Governors complained that in July the Treasury disbursed nothing to the Counties.

Sources: The National Treasury and Central Bank of Kenya

The IMF and World Bank have been accommodating to the point of complicity over the past five years, looking the other way as Kenya’s foreign debt increased by two and a half times from US$9 billion to US$25 billion.

It is on this economic front that the real challenge for Kenya over the coming months lies. It will quickly become a political one as well. Bulldozers knocking down temples are mere distractions in light of this.

Research by Juliet A. Atellah

Related Links

– The effects of 16 percent VAT on petroleum products
– Crucial: IMF team flies into Nairobi as State tightens spending
– Mt Kenya matatus announce 20pc fare increase
– Petrol price to hit Sh130 as VAT charge kicks in
– Leaked phone call between Waititu and Sonko reveals impunity

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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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