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Love, Death, Sponsors and Taxes: A Survivor’s Manifesto

7 min read.

A governor, accused of murdering his mistress, calls a press conference to admit to the affair, accompanied by his wife and children. The media obsesses on the murder and celebrates a culture of transactional love. In other news, a notoriously corrupt government raises taxes to pay for its profligacy; politicians urge the citizenry to tighten their belts to pay for development. In a nation of looters and grabbers, only the mad will survive. By RASNA WARAH

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Love, Death, Sponsors and Taxes: A Survivor’s Manifesto
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Hum apse beimani thodi karenge”. (Translation: I cannot be dishonest with you/I cannot betray you.) This is what a disabled hawker in New Delhi’s Connaught Place told me when he handed me the correct change for a Buddha sculpture I had just bought from him. Unlike a typical Delhi resident, I had not haggled with him about the price of the sculpture – on the contrary, he had himself volunteered to give me a discount. As I was walking away after making the purchase, he stopped me, saying that he had not given me the correct change and that he was not the type of person who could be dishonest.

I thought about this incident later and wondered what might have prompted a poor hawker to say these words to me. Why was it important for him to establish his honesty? The change he handed over to me was worth about $4, hardly an amount that I would have missed. So why did giving the money back to me matter to him? (It’s good when Kenyans travel abroad – they get to see how other people go about their daily business.)

It’s possible that this hawker was not particularly honest and that I had paid much more for the sculpture than it was actually worth, and so he was creating the perception that, in fact, I had got a bargain. It’s possible that in the Indian entrepreneurial tradition of establishing trust when conducting business, he saw in me a potential future customer, and therefore, wanted to confirm to me that he could be relied upon to be honest. It’s also possible that he was just a con artist who used nice words to make his customers feel good.

Upon further reflection I realised that this particular hawker was operating within a context and culture that valued integrity – if not in everyday practice (India is, after all, one of the most corrupt countries in the world) then at least in intention. People want to feel trusted and want to be able to trust other people, and this trust is what makes all kinds of transactions – both personal and in business – possible. The announcement by a hawker who I will probably never meet again that he cannot betray me reflects a culture where relationships are held together by an implicit or explicit understanding that trust should not be broken.

I have been thinking a lot about trust and betrayal in the wake of the Sharon Otieno murder case, which has generated knee-jerk reactions from Kenyans, ranging from “She was an immoral woman whose actions led to her death” to “She is a victim of a patriarchal culture that exploits young women”. While salacious details of her affair with the Migori governor, Okoth Obado, were being published in the daily newspapers (which seem to have borrowed a leaf from the UK’s sleazy tabloids), no one seemed interested in asking why it has become acceptable in our society for young women to have “sponsors” in the first place. Al Jazeera and BBC did programmes on this phenomenon, but the local media seem to have accepted it as a way of life. One Kenyan newspaper even went as far as interviewing “sponsees” whose rags-to-riches stories were probably a source of inspiration to thousands of other young struggling women. One female politician had the audacity to say that it is perfectly okay for young women to look for wealthy older men to pay for their lifestyles because life is difficult and a woman has to do what a woman has to do to survive. So much for women’s empowerment!

I have been thinking a lot about trust and betrayal in the wake of the Sharon Otieno murder case, which has generated knee-jerk reactions from Kenyans, ranging from “She was an immoral woman whose actions led to her death” to “She is a victim of a patriarchal culture that exploits young women”.

We live in the “Magical Kenya” that Christine Mungai describes so well in a recent article. Sharon Otieno and Okoth Obado epitomise this Kenya where betrayal and dishonesty have come to define relationships, where all human activity is reduced, in Mungai’s words, to “a form of economic calculation, dismissing love, empathy and care as powerful but unfortunate delusions”. This is not a Kenya where a hawker will give back money to a customer because his integrity matters to him more than the extra money he might obtain through deception. It is a country where a governor calls a press conference with his wife and grown-up children in tow and admits to an illicit affair without feeling an iota of shame or guilt. It is a country where a young woman who has three children with another man feels that she can extort money from her new rich lover (also known as “sponsor” in Kenyan parlance) even while claiming that he is the father of her unborn child.

The media’s obsessive focus on the murder itself and not on the society that created a Sharon Otieno and an Okoth Obado also leaves a lot to be desired. The public reaction to the murder and the subsequent arrest of the Migori governor – a suspect in the case – have left many perplexed. For instance, Migori residents protested against their governor’s arrest, even after it was revealed that he and his wife might have siphoned millions of shillings from Migori County’s budget for their personal use. Kenyans clearly suffer from Stockholm Syndrome, a condition that causes hostages to develop emotional alliances with their captors (a term that was coined in 1973 when four hostages taken by bank robbers in Stockholm defended those who had held them captive and refused to testify against them.) Kenyans identify with their oppressors to the point where they can no longer see what is in their best interest.

Betrayal and dishonesty have come to define relationships, where all human activity is reduced…to “a form of economic calculation, dismissing love, empathy and care as powerful but unfortunate delusions”.

The debate on the ridiculously punitive taxes being imposed on Kenyans also reflects a society that has become completely captive to politicians. MPs from both sides of the political divide (that is, assuming that we still have two political sides in a post-handshake era) were making the most asinine arguments in favour of the raised taxes, which generally followed this argument: “We have to tighten our belts to pay for development.” I am no economist but even I know that when you suck money out of the economy, individuals and businesses have less money for purchasing goods or for investing. Businesses close down, people lose jobs, and in the end there is less “development” because there are less people who are paying taxes.

In addition, these austerity measures are being imposed at a time when Kenyans are being sold an ambitious and expensive “Big Four” infrastructure and development agenda. Who is the government kidding? There was no discussion or debate (public participation) on how Kenya got to a place where the government is imposing austerity measures on a people who are already over-burdened by the high cost of living and who are already being over-taxed for everything from electricity to books, which were previously zero-rated. Few ask why Kenyan taxpayers have to pay for the irresponsible massive borrowing – from Eurobond to SGR – that the government indulged in the last five years and which has brought us to a place where the government has us by the throat and there is nothing we can do about it.

I recently had a discussion with someone on the comatose state of Kenya’s citizens. When did we stop feeling anything? When did we shut down? Why is it that people in other countries appear more animated and alive? Was it when we realised in 2007/2008 that we were capable of committing mass murder and rape in the name of politicians? Or was in 2013 when Kenyans decided that people indicted for crimes against humanity should lead us? Or maybe it was in March this year when the man in whose name so many people have been killed decided that shaking hands with his opponent was in his personal, rather than the national, interest? Or when Eva Msando, the wife of murdered IEBC official Chris Msando, was appointed on the EPZ board by a government that may have had a hand in the killing of her husband? Or when known crooks in the opposition were given plum jobs in parastatals as a reward for the “handshake”. Or when soldiers deployed to the Westgate mall on 21 September 2013 to handle an Al Shabaab terrorism situation and to save lives ended up looting the mall’s shops instead? Or when Miguna Miguna was denied entry into the country, forced to board a plane and deported like a common criminal? Or when a man who was photographed eating githeri while waiting to vote for President Uhuru Kenyatta last year was given a state award but world-renowned Kenyan athletes who make the country proud were robbed of their allowances and sports gear by government officials during the Rio Olympics? Or maybe it was that time long ago when Kamlesh Pattni, the leading architect of Kenya’s economic decline in the 1990s, was treated like a rock star at a public inquiry, with people even asking him for autographs? (Most of these people, I might add, are avid church- or mosque-goers.) Stockholm syndrome? Dead men and women walking?

It is easy to shut down in Kenya – if we didn’t, we’d go stark raving mad. Blogger Owaahh says Kenyans suffer from unprocessed trauma – because we have not confronted our trauma, we are still not healed. The trauma of the 2007 election and its violent aftermath, the trauma of being led by people who have acquired or inherited wealth through stolen public resources, the trauma of not knowing which bizarre or tragic situation we may have to confront next, the trauma of knowing that many of your friends and family died psychologically and spiritually a long time ago yet no one came to their funeral or wrote an obituary. And because they are emotionally dead or numb, they cannot function like normal human beings.

It is easy to shut down in Kenya – if we didn’t, we’d go stark raving mad.

But how does one confront trauma when we cannot – and are not even allowed to – name it as such? When we are told at every opportunity that this is how life is, grin and bear it. When a preventable tragedy or a corruption scandal elicits a few tweets but does not change society. When a story stating that most of the food we consume in Kenya might be contaminated or poisonous because corrupt cartels allowed it into the country barely makes it to Page 17 of a newspaper but the story of a politician donating millions of ill-gotten shillings to a church makes front-page news.

Joe Khamisi calls us a nation of “looters and grabbers”. In his most recent book by this title, the US-based Kenyan author explains how 50 years of corruption and plunder have made wanton greed and deception the hallmarks of Kenyan political, economic and social life. Those who question this state of affairs are quickly sidelined, made to feel mad, stupid, naïve, irrational, unpatriotic, deranged, losing it.

50 years of corruption and plunder have made wanton greed and deception the hallmarks of Kenyan political, economic and social life. Those who question this state of affairs are quickly sidelined, made to feel mad, stupid, naïve, irrational, unpatriotic, deranged, losing it.

But as Jack Kerouac, author of the semi-autobiographical 1950s novel On the Road wrote: “The only people for me are the mad ones, the ones who are mad to live, mad to talk, mad to be saved, desirous of everything at the same time, the ones who never yawn or say a commonplace thing, but burn, burn, burn like fabulous yellow roman candles exploding like spiders across the stars and in the middle you see the blue centerlight pop and everybody goes ‘Awww’.”

But as Jack Kerouac, author of the…1950s novel, On the Road wrote: “The only people for me are the mad ones, the ones who are mad to live, mad to talk, mad to be saved, desirous of everything at the same time…

It is time for Kenyans to get mad, really mad.

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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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