Connect with us

Op-Eds

The Rwandan Genocide, and the Sins That Can and Can’t Be Forgiven

7 min read.

Did the shooting down of a plane on 6 April 1994 trigger the Rwandan genocide? In this article, CHARLES ONYANGO-OBBO shows that, far from being a spontaneous act of retaliation, the genocide in Rwanda was a premeditated strategy that was linked to events that took place at least four years earlier.

Published

on

The Rwandan Genocide, and the Sins That Can and Can’t Be Forgiven
Download PDFPrint Article

As 2018 closed, news came from Paris that France had abandoned a probe into the shooting down of a plane carrying the Rwandan and Burundian presidents and its French crew on April 6, 1994 – an event that is said to have sparked the genocide in Rwanda.

However, one cannot talk of the Rwandan genocide without referring to an attack four years earlier, on October 1, 1990, when rebels belonging to the Rwanda Patriotic Front/Army (RPF/A), comprising mostly refugees, launched an attack from Uganda in a campaign to reclaim statehood. Their campaign turned to disaster very quickly, with feuding within their ranks, and the killing in the first hours of the attack of their charismatic leader, Maj. Gen. Fred Rwigyema. He, like several RPA combatants, had been an officer in the Uganda army.

Weeks later, Paul Kagame, who was an officer in Uganda’s military intelligence and on a military training course in the USA, returned and took over the leadership of an RPA in disarray.

There are two principal accounts of how Rwigyema was killed. The official one in Rwanda is that he was shot by an enemy sniper in the head as he stood on a hill talking on military radio near the Uganda-Rwanda Kagitumba border through which the RPA had launched their attack. The other, more popular in Uganda and internationally, no less because of its rich conspiratorial flavour, is that Rwigyema was killed by one of his deputies, Peter Baingana, following an argument.

Baingana, a medical doctor and accomplished boxer while he was at Makerere University, was also an officer in the Uganda army, having joined Yoweri Museveni’s National Resistance Army (NRA) guerrillas in the early 1980s, like many Rwandan refugees. He represented an arcane, but deep, philosophical divide in the RPA: he was a leading critic of what the Rwandans disparaged as “integrationists”. Integrationists were the Rwandan (mainly Tutsi) diaspora and refugees, who were seen to have become too comfortable in their host countries, and who favoured either a negotiated return home, or were too deferential to Museveni’s views on how they should time their fight to return to Rwanda.

Rwigyema was a hugely popular figure in Uganda, and had been nicknamed “James Bond” for his exploits in the counter-insurgency that the Museveni government was carrying in northern and eastern Uganda against various rebel groups. He was Deputy Army Commander, and later Minister of State for Defence.

He was also into football. As a kind of patron of Villa FC. Weeks before the October 1990 attack, I went to Nakivubo Stadium to watch a Villa FC encounter. Rwigyema drove into the stadium just as the match was about to start, and a quite unnerving hysterical applause erupted as he walked to the pavilion. The spectators simply worshipped him.

In October 1990, Museveni was the Chairman of the Organisation of African Unity (OAU) and didn’t want the attack to happen on his watch. In fact, when it happened, he was giving a speech at the United Nations General Assembly in New York, and he got egg on his face for it.

Baingana had led the invasion, while Rwigyema was at the (today South) Sudan border, as Uganda propped up the Sudan People’s Liberation Army (SPLA) that was facing a new onslaught from Khartoum. He had to rush to catch up with the RPA, entering hours after Baingana had let them in. It’s also widely believed that an infuriated Uganda sent soldiers into Rwanda, arrested Baingana and his confederates, and executed them. To this day, one still gets stonewalled on these matters, as they would have been 24 years ago.

In October 1990, Museveni was the Chairman of the Organisation of African Unity (OAU) and didn’t want the attack to happen on his watch. In fact, when it happened, he was giving a speech at the United Nations General Assembly in New York, and he got egg on his face for it.

Kagame gathered up the debris of the RPA, and undertook a seemingly insane expedition. He led his soldiers to the Muhabura Mountains, far away from the safety of the Uganda border, and closer to the stronghold of then President Juvenal Habyarimana’s regime, and so called “Hutu power”.

However, there was a method to his madness. Once up in Muhabura, it was easy for the rebels to secure themselves more easily. But learning to survive in the cold mountains, and mastering how to get to and from there through dangerous territory, was an unforgiving ordeal of Darwinian selection; it meant that only the most hardened and disciplined soldiers remained in the RPA ranks. In addition, for people who had been refugees for nearly 40 years, getting to Muhabura forced them to re-learn a country that they had been away from for a long time, or had never been to, having been born in exile.

This and the events in October 1990 form an important undercurrent to the narrative of what happened on April 6, 1994, and the French case. It goes to the question of when, after reckoning with earlier massacres and pogroms, did what has become known as the Rwandan Genocide begin?

On the evening of April 6, 1994, a plane carrying President Juvenal Habyarimana and his Burundi counterpart, Cyprien Ntaryamira, was shot down near Kigali airport, killing everyone on board, including its French crew.

This and the events in October 1990 form an important undercurrent to the narrative of what happened on April 6, 1994, and the French case. It goes to the question of when, after reckoning with earlier massacres and pogroms, did what has become known as the Rwandan Genocide begin?

At that point, RPA guerrilla units had arrived in Kigali as an advance contingent, as the warring parties moved to implement the Arusha Peace Accord of August 1993, ending the war and establishing a Broad-Based Transitional Government (BBTG), with the RPF/A as part of it.

Within hours of the plane being brought down, extremist Hutu soldiers in the regular military and the Interahamwe militias fanned out in a 100 days frenzy of slaughter that left anything between 800,000 and one million people, mostly Tutsis, but also moderate and opposition Hutus, dead.

The RPF accuses France, a Habyarimana ally, of complicity in the killings, as it not only armed the regime, but allegedly also trained – and directed – the Interahamwe. The extremists, it holds, didn’t want the Arusha Accord, viewing it as a surrender by Habyarimana. Killing him not just got him out of the way, but also enabled them to settle the “Tutsi question” once and for all by eliminating them.

The French case, on the other hand, arose from the death of the crew, although the RPF saw it is as a cover-up for its role in the genocide. France made the political argument that the RPA didn’t want to share power, and sought to reassert Tutsi hegemony by taking a wrecking ball to it, so it shot down the plane.

But how could the extremists have been so organised and their militias so well-armed with machetes that enabled them to immediately spring into action as news of Habyarimana’s death spread?

The answers are to be found way back in Rwanda’s history, and in some of the events that played out after the RPA were beaten back in late October 1990.

Belgian colonialists took what was primarily an economic and class stratification and hardened it into an ethnic divide between the Tutsi (wealthier cattle owners who formed the elite because cattle was prized) and Hutus (mostly farmers). To do that, they had to come up with a profile. The Kigali Genocide Memorial shows videos of Rwandan peasants squatting in line in the sun as Belgian colonial officials walk through measuring their faces and body parts. Long nose? Tutsi. Short, big nose? Hutu, and so on.

Until then, there was the possibility of class mobility. A Hutu who acquired a large cattle herd and wealth could move up the economic class and become Tutsi. And a Tutsi who fell upon hard times could fall down the class ranks and be regarded as Hutu.

In 1926, the Belgians introduced ethnic identity cards differentiating Hutus from Tutsis, which enabled the Tutsi to consolidate as the ruling class. This ended in a bloody orgy with the “Rwanda Revolution”, which between 1959 and 1961 saw the Hutu majority overthrew the monarchy. Up to 20,000 Tutsi were killed, and over 300,000 – including Paul Kagame, who was barely two-years-old then – fled to neighbouring countries, mostly to Uganda.

Subsequent regimes refined the ID system into a Rwandan version of apartheid that sharply marginalised the Tutsi. As the Tutsi refugees in Uganda used the organisation and leverage they had got from the Museveni war and victory to mobilise their return, the regime in Kigali started to prepare.

The timing of the October 1990 attack was not fortuitous. Beside Museveni and his apparatus being out of town, he had been in power for four years already and the rot had started to seep into the revolution.

A worldly operator, Habyarimana – who in the twisted realties of African politics had helped the Museveni rebels – enjoyed links to some of them now that they were in power in Kampala. He is thought to have infiltrated the Ugandan security system so heavily by bribing senior officers, that by late 1990 he had all but neared a tipping point, and would have been able to get his bought network to prevent an RPF/A attack.

The trigger for his operation had happened two years earlier when the RPF had held a convention in Kampala where Rwandan exiles and their offspring from all over the world had converged in record numbers. If Kigali then had been under any illusions of the RPF threat, they were banished then. Habyarimana went into the trenches.

This preparation was evident in October 1990. As the first RPF/A attack disintegrated, the Rwanda military struck back, including attacking suspected rebel sympathisers, mainly Tutsi peasant families, in the northeast. Those who could get away fled in their thousands across the border into Uganda.

In mid-October, with William Pike (now a director with The Star in Nairobi, but then heading the government-owned New Vision in Kampala) and the BBC Swahili correspondent in Uganda, Hussein Abdi, we went to the Kagitumba area to cover the war.

We were told that there was a large refugee camp “nearby” on the Uganda side. We were to spend hours getting lost in the bushes as we were misled by cattle herders who kept telling us, “Ah, you have reached, drive ahead it’s at the corner”, and kilometres later, there was nothing in sight.

Eventually we did find the camp. It was raining, and the place was miserable. However, the most striking thing was how many people had wounds inflicted, we were told, by machetes and axes. The significance of it was to hit home much later: by the time the RPF/A attacked, the machetes were ready.

On the other hand, the excruciating Darwinian selection, and monolithic discipline (still evident in the RPF today after 24 years in power), which enabled it to survive and win, means it was unlikely to gamble on shooting down Habyarimana’s plane and set off events it couldn’t control. (France has in the past accused the RPF of shooting down the plane.)

Eventually we did find the camp. It was raining, and the place was miserable. However, the most striking thing was how many people had wounds inflicted, we were told, by machetes and axes. The significance of it was to hit home much later: by the time the RPF/A attacked, the machetes were ready.

It remains important to establish with some finality who shot down Habyarimana’s plane. But the shooting down of the plane did not spark the genocide, as many accounts like to tell it. Pegging the genocide to April 6, 1994, is to cleverly deny that there was premeditation and planning. It also wipes out a complicated and messy 82 years of Rwandan history – although perhaps it is what those who are here today can live with.

Support The Elephant.

The Elephant is helping to build a truly public platform, while producing consistent, quality investigations, opinions and analysis. The Elephant cannot survive and grow without your participation. Now, more than ever, it is vital for The Elephant to reach as many people as possible.

Your support helps protect The Elephant's independence and it means we can continue keeping the democratic space free, open and robust. Every contribution, however big or small, is so valuable for our collective future.

By

The author is publisher of Africapedia and a columnist.

Op-Eds

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.

Published

on

Unlike the Rest of the UN, Is WHO (Finally) Taking Sexual Abuse Seriously?
Download PDFPrint Article

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.

Continue Reading

Op-Eds

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.

Published

on

The Retrospective Application of Constitutional Statutes: Notes From the High Court of Kenya
Download PDFPrint Article

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.

Continue Reading

Op-Eds

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.

Published

on

The Pandora Papers Reveal the Dark Underbelly of the United Kingdom
Download PDFPrint Article

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

Continue Reading

Trending