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How to Re-Invent Money: Notes for Cryptocurrency Techno-Warriors

8 min read.

Ultimately money is a social contract DAVID NDII argues. And though Bitcoin and cryptocurrencies may yet emerge as transformative disrupters of human and economic relations, certain fundamentals need to be in place if they are not to go the way of other fads past. History teaches us that ultimately monetary delinquency is one of the more reliable harbingers of revolution. If government makes a mess of our money, we can always behead the King.

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How to Re-Invent Money: Notes for Cryptocurrency Techno-Warriors
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Ten years ago, an anonymous person or people known as Satoshi Nakamoto published a paper announcing a monetary innovation described as a peer-to-peer electronic cash system. “Peer-to-peer” means a system of exchange that does not require intermediaries, such as banks, to function. When we use a card to buy something at the supermarket, the holder’s account is debited and the account of the merchant is credited. There are at least three intermediaries to this transaction namely, the card-holder’s bank, the supermarket’s bank and the card issuer all who make some money from it, and there is of course the governments which are the ultimate guarantors of the payment systems we use.

The system devised by Satoshi Nakamoto known as Bitcoin became the progenitor of cryptocurrencies. Instead of the accounting systems of banks and other intermediaries, the cryptocurrency systems use a digital public register, known as a blockchain. When people transact, the transaction appears on the public register. The transaction’s security and validation services that we rely on: banks, card issuers, central banks and lately telcos and “fintechs” in the case of mobile phone payments platforms, is done by techies called “miners” who compete to verify transactions by solving puzzles. The miner who completes the verification first earns some bitcoins. So in effect, the claim that there is no third party intermediary is not quite accurate. What they have done is to replace centralized systems and authorities with a decentralized free-for-all system.

Bitcoin appeared have settled at around $1000 up until January 2017, when it began what was to become an unprecedented rise. In December 2017 it peaked at a little over $19,400. A year later it is down to under $4000. Bitcoin is now billed as the most spectacular financial bubble on record.

At the height of the cryptocurrency boom, enthusiasts were declaring fiat currencies history. Fiat money is a currency decreed by governments to be the “legal tender” in its jurisdiction and is one of three types of money that have existed in history. The other two are commodity and credit money. Commodity money is something of intrinsic value such as precious metals that is generally accepted for payment. Credit money arises when debt instruments typically issued by a reputable party such as a bank, wealthy enterprise or government becomes accepted for payment. The word “banknote” originates from the “free banking era” in the US, when promissory notes issued by banks were generally accepted as means of payment. Today’s prominent fiat currencies such as the US dollar began life as promissory notes issued by governments mostly to finance wars.

Bitcoin appeared have settled at around $1000 up until January 2017, when it began what was to become an unprecedented rise. In December 2017 it peaked at a little over $19,400. A year later it is down to under $4000. Bitcoin is now billed as the most spectacular financial bubble on record.

As Bitcoin soared, Initial Coin Offerings (ICOs) began to look uncannily like the prospectuses of South Sea Bubble companies (such as my personal favourite: “For carrying out an undertaking of great advantage; but nobody to know what it is”). Economists, who pointed this out, including this columnist, were dismissed as luddites who were stuck in old school thinking. Cryptocurrency and blockchain were the ultimate technological disrupter. We were on the cusp of a new economic architecture where the old rules would no longer apply.

Today’s prominent fiat currencies such as the US dollar began life as promissory notes issued by governments mostly to finance wars.

The cryptocurrency techno-warriors may yet have the last laugh. But to do that they would do well to learn a thing or two about the competition.

Up until they were colonized a century ago, my Agikuyu forebears were moneyless. In Elspeth Huxley’s irreverent parody of the Agikuyu’s early encounters with Europeans Red Strangers, this is what ensues when Muthengi is offered a job that pays five rupees a month: 

“I do not want these metal objects,” Muthengi answered. “What can I do with them? Why does he not give me goats?”

It is the same as if he gave you goats” the interpreter said. “You can exchange rupees for goats.”

“How many are needed to obtain a goat?”

One rupee will buy one goat?”

Muthengi could conceal his incredulity no longer. It was impossible to believe that the world held anyone so foolish as a man who would surrender a goat for a useless piece of metal possessed, it seemed, of no magical powers. But the thought of five goats a month burrowed like a mole underneath Muthengi’s mind. It seemed incredible, yet what if it could be true? Five goats a month, thirty goats a season, two hundred and ten goats in four seasons with the increase of one to each female in a season…it was impossible to encompass so many goats with the mind’s eye.

Muthengi accepts, dutifully converts his five rupees pay into goats every month, and becomes very rich.

In economics, we tend to look at money like Muthengi. Since money is not of itself productive people ought not hold on it longer than necessary, they would convert it to goats as soon as they are able. Money would be constantly changing hands, lubricating commerce. Why then, is money such a big deal?

To study questions like these, economists sometimes resort to reverse engineering to see whether we can build a model in which the thing in question arises “endogenously.” By “endogenous” we mean that it is not introduced by an outside agent, such as the mysterious Satoshi Nakamoto.

As Bitcoin soared, Initial Coin Offerings (ICOs) began to look uncannily like the prospectuses of South Sea Bubble companies. Economists who pointed this out were dismissed as luddites who were stuck in old school thinking. Cryptocurrency and blockchain were the ultimate technological disrupter. We were on the cusp of a new economic architecture where the old rules would no longer apply… The cryptocurrency techno-warriors may yet have the last laugh. But to do that they would do well to learn a thing or two about the competition.

Students of economics know that money serves three functions: a medium of exchange, a unit of account and a store of value. Our earliest ancestors were hunter-gatherers. We do not know for sure whether hunter-gatherers invented money. It is not evident that small bands of hunter-gatherers would find need to invent a medium of exchange, or units of account.

But one thing we are sure of is that hunter-gatherers grew old. They would have had to figure out some means of surviving in old age. One of these is to cultivate social bonds which obligate progeny to provide for the elderly. This is quite evidently true, but it is not entirely sufficient since not everyone will have children, and it is far from certain that children will survive to support their parents in old age. Thus, kinship-based old age security will result in some old people enjoying good care from their progeny, and others dying of destitution, quite an unsatisfactory situation.

Trading seems to be one of the things that we do naturally. Two hunter-gatherers, one who has caught an antelope and the other has harvested wild honey bump into each other on the way home. Can I have some of that, for some of this? Markets enable strangers to meet each other’s needs. Can the market find a solution for the old age security problem?

Now, imagine a small hunter-gatherer community with a population of two hundred people. Each person lives for two periods, youth and old age, and is endowed with three units of a consumption good, manna from heaven if you like, when young and one unit when old. As per the law of diminishing returns, consuming the first unit yields 20 units of happiness, the second yields 15 and the third yields 5 units. As shown in the table, if each person consumes only their endowment, they enjoy 60 units of happiness. If they can trade so that each person consumes two units in each stage, each person would enjoy 70 units of happiness in their lifetime.

In economics, we tend to look at money like Muthengi. Since money is not of itself productive people ought not hold on it longer than necessary, they would convert it to goats as soon as they are able. Money would be constantly changing hands, lubricating commerce. Why then, is money such a big deal?

This set up is called an overlapping generations model and is one of two devices that economists use to study long run economic dynamics (the other one is called an infinite horizon model). It was formulated by French economist Maurice Allais and refined by Paul Samuelson in a seminal 1958 paper titled A Consumption Loans Model of Interest with or without the Social Contrivance of Money. My set-up here conveys the gist of Samuelson’s model but the formulation and parameters are my own.

If the community can find a way to trade, everyone will enjoy 10 more units of happiness.  One way of thinking about this is as an increase in life expectancy from 60 to 70 years. The problem with this trade is that it cannot be conducted bilaterally, peer-to-peer if you like.  The young can support the old today, who will then die. For their own old age security, they will need the support of the next young generation which is as yet unborn. However, if society were to device a voucher, a receipt if you like, that is given to each prime-age adult in exchange for giving up one consumption good unit to support an old person, they can trade vouchers with the subsequent generation.

Be it a strip of buffalo hide, or a string of cowrie shells, a social security card or a promissory note, it stands to reason that once it’s invented each successive generation will value them, since everyone will also need to secure their old age with the successor generation. Individuals need no longer fear old age destitution on account of not having family support in their old age. In fact, this market system could have the unintended consequence of undermining the kinship system, as Alessandro Cigno observes in his book Economics of the Family:

“the growth of the financial sector (including in that the social security system, as well as banks, private insurance and the stock exchange) tends to coincide, in the development of an economy, with a sharp fall in fertility, the break up of extended family networks and a widespread reluctance on the part of the middle aged to accept responsibility of elderly relatives.”

Now that we have a theory of money, we can examine what attributes sound money should have. First, it needs to be trusted. Every voucher must be a legitimate store of value. It is not difficult to see that people entrusted with its production may be tempted to game the system by producing more vouchers than needed, and some people will find themselves with vouchers that command less than what they put it. Second, it should be possible to increase the number of vouchers in tandem with the population growth To see this, let us suppose the next generation increase to 110 people, an additional ten vouchers will be needed otherwise some of its members will be locked out of the intergenerational trade.

What then, are the lessons to be learned by people seized with the idea of re-inventing money?

One of the key requirements of sound money is a credible supply rule. In our simple model, the anchor is population growth. But it so happens that in our model population growth and economic expansion are identical, therefore it is the same as a money supply rule that is anchored on the size of the economy. Satoshi Nakamoto decreed that the bitcoin algorithm would cease after 21 million of them were mined. Why 21 million? Nobody seems to know. In effect, as a currency, bitcoin had the same flaw that undermined gold and silver, namely arbitrary supply that is unrelated to demand.

A second flaw is the tech-hype the cryptocurrency as the ultimate disruptive technology that would liberate society from the state-financial capitalist stranglehold. Because the value of technology innovations is highly uncertain, the value of bitcoin became entwined with people’s subjective guesses and predictions of what that value might turn out to be, as opposed to the economic fundamentals. We call this a sunspot equilibrium. For an asset purporting to be money, it is a highly undesirable attribute. It is this particular flaw that fueled the speculative bubble. This eventuality could have been mitigated by creating two assets: one that would profit from the innovation and one that reflected the economic fundamentals.

One of the key requirements of sound money is a credible supply rule. In our simple model, the anchor is population growth. But it so happens that in our model population growth and economic expansion are identical, therefore it is the same as a money supply rule that is anchored on the size of the economy. Satoshi Nakamoto decreed that the bitcoin algorithm would cease after 21 million of them were mined. Why 21 million? Nobody seems to know.

The third and perhaps fatal flaw is that cryptocurrency inventors failure to appreciate that fundamentally, money is a social contract. Social acceptance is what makes cowrie shells, beaver pelt, silver, gold or pieces of paper issued by government a currency. Of all our social contrivances, the one that money shares most attributes with is the state. It should not surprise then, that money has evolved into government-issued fiat currencies. But just like in governing, it does not mean that governments will excel in monetary affairs. In fact, the quality of a country’s money and governance tend to be closely correlated. Robert Mugabe’s ZANU-PF regime is but the latest to make a mess of both.

Monetary delinquency is one of the surer harbingers of revolution. If government makes a mess of our money, we can always behead the King. Which is just as well that Satoshi Nakamoto had the foresight to be anonymous. Could be he/she/they knew something that their starry-eyed cryptocurrency enthusiasts did not.

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David Ndii is a leading Kenyan economist and public intellectual.

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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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