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Why Al-Shabaab Targets Kenya

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In his first address as the group’s Kenyan operations leader, Ahmed Iman Ali declared the country darsh-al-harb – House of War. Four of the five Dusit attackers were Kenyan. Still, the reasons the group focuses on the country, and not others in the region, run contrary to conventional assumptions. By NGALA CHOME.

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Why Al-Shabaab Targets Kenya
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Al-Shabaab has claimed that its January 15 attack on the Dusit D2 Complex was revenge for President Donald Trump’s decision to move the United States embassy in Israel from Tel Aviv to Jerusalem. This is not the first time that a terrorist attack conducted on Kenyan soil has been justified by its perpetrators on the basis of events occurring thousands of miles away. For instance, the date of the August 7 1998 Al-Qaeda attack on the U.S embassy in Nairobi coincided with the same date, in 1991, when U.S troops first landed in Saudi-Arabia in preparation for the Gulf War, which Al-Qaeda regarded as a Christian invasion of ‘Muslim lands’.

Kenya may have suffered these attacks since it is considered a key ally of the West. But why is Al-Shabaab (an Al-Qaeda affiliate) targeting Kenya more than it is other countries in the region, such as Ethiopia and Uganda, which also have close ties with the West and have fought Al-Shabaab in Somalia? To what extent does Al-Shabaab attack Kenya for the reasons it publicly gives? Will Al-Shabaab, for example, stop targeting Kenya if the Kenya Defence Forces pulled out of Somalia?

Also, why are Kenyans, many of whom are recent converts to Islam, joining Al-Shabaab? Four of the five Dusit D2 attackers were Kenyans. Some analysts have found that status, adventure seeking, financial gain and revenge are prominent drivers of enlistment, while others submit that ideological commitments to an Islamist vision, driven by local Muslim experiences and a global narrative of ‘Muslim victimization’ have stronger explanatory power. Others have argued that it is due to a combination of wider socioeconomic conditions, and individual-level psychosocial characteristics that turn young converts to a path of violent extremism. At the same time, an authoritative account of Al-Shabaab recruitment in Somalia found that despite the varied and complex motivations for joining the group, the most common reasons given include a quest for justice through Sharia legislation and an idea of ‘defensive’ or ‘offensive’ jihad. This way of understanding the world can be regarded as empowering for some individuals, as membership can be compared to a conversion process, which can be considered a central benefit – more than access to material resources – of participating in ‘jihad movements’. These questions and debates, which have preoccupied a community of analysts and practitioners within a broad-based programme for policy intervention commonly referred to as Countering Violent Extremism (CVE), have been laid bare, yet again, in the unfolding drama of the DusitD2 attack.

Kenya may have suffered these attacks since it is considered a key ally of the West. But why is Al-Shabaab (an Al-Qaeda affiliate) targeting Kenya more than it is other countries in the region, such as Ethiopia and Uganda, which also have close ties with the West and have fought Al-Shabaab in Somalia?

At the centre of the attack was Ali Salim Gichunge, the son of a Meru military officer, and the leader of the cell that was behind the attack, and his wife, Violet Kemunto Omwoyo, a Kisii convert to Islam, and journalism graduate at the Masinde Muliro University in Western Kenya. Their story is important as it not only defies Kenya’s ethnic fictions, but also disrupts widespread perceptions of Islamist violence in the country.

Yet, the story of Gichunge and Kemunto is not entirely new, peripheral nor fringe. Exactly six years before Gichunge stormed DusitD2 with his associates, wearing his baseball cap on backwards, wielding an AK-47 rifle smuggled from Somalia, and baying for the blood of innocent civilians, Al-Shabaab announced the appointment of an ‘ideological leader’ for its Kenyan operations: Ahmed Iman Ali, then about 40 years old and of mixed Meru and Kamba origins. In the January 2012 video released by Al-Shabaab’s media wing, al-Kataib, Iman Ali – he grew up in the Majengo slums of Nairobi, graduated with an engineering degree from the University of Nairobi, and became the secretary of Majengo’s largest mosque, the Pumwani Riyadha Mosque, before fleeing to Somalia to join Al-Shabaab in 2009 – described Kenya as dar-al-harb – the house of war. Its people, he said, were legitimate targets of violent attacks.

Why are Kenyans, many of whom are recent converts to Islam, joining Al-Shabaab?

Years before he joined Al-Shabaab, Iman Ali led an ouster of the Pumwani Mosque committee, which he accused of corruption and embezzlement. Speaking against a litany of socio-economic hardships afflicting his predominantly Muslim neighbourhood, Iman Ali was a powerful balm for Majengo’s long-felt sense of exclusion and powerlessness in a Christian-dominated country.

That was in 2007. In 2012 when he was announced leader of Al-Shabaab’s Kenya operations, he was believed to be in command of hundreds of foreign fighters with the Somalia-based group, most of whom were his childhood friends from Majengo, with origins in Central Kenya, Rift Valley, Nyanza and Western regions.

At the centre of the attack was Ali Salim Gichunge, the son of a Meru military officer, and his wife, Violet Kemunto Omwoyo, a Kisii convert to Islam, and journalism graduate at the Masinde Muliro University in Western Kenya. Their story is important as it not only defies Kenya’s ethnic fictions, but also disrupts widespread perceptions of Islamist violence in the country.

Gichunge had himself graduated from high-school in 2011 with a mean grade of C+, and after his hopes of playing rugby for his school were dashed after he was bullied by other students – it led to him having to change schools – he turned his to Information Technology. It was while working at a cyber-café in Isiolo that Gichunge, who was raised in a strict Muslim household, got introduced to radical online sheikhs. He left Isiolo for Somalia immediately after that. Amongst the group of Kenyan Al-Shabaab militants he met in Somalia were former bandits, some with serious criminal records.

Most of these recruits would have been shuttled to Somalia by Juma Ayub Otit Were, a Muslim-Luhya born and raised in the Huruma slums of Nairobi. After he was accused of theft by his employer in Eastleigh, losing his job as a result, Ayub secured a new role with Iman Ali’s outfit, the Muslim Youth Centre (MYC), where he became responsible for shuttling a large number of recruits from Nairobi’s slums and other parts of up-country Kenya to Somalia to join Al-Shabaab. The police, who were trailing his activities, code-named him ‘Taxi-Driver’.

Years before he joined Al-Shabaab, Iman Ali led an ouster of the Pumwani Mosque committee, which he accused of corruption and embezzlement.

Some of the early recruits, like Sylvester Opiyo and Kassim Omondi aka Budalangi, both of whom hailed from Nairobi’s Majengo slums; and Jeremiah Okumu aka Duda Black and Stephen Mwanzi aka Duda Brown, who hailed from Nairobi’s Kibera slums, were all well-known thugs before joining Al-Shabaab. Their predisposition towards violence and unlawful behaviour turned a new leaf when the prospects for military training with Al-Shabaab in Somalia became more imminent. After developing networks with Iran, Ali’s group at the Pumwani Riyadha Mosque, whose influence since 2007 had spread to other mosques in Nairobi, especially those located in neighbourhoods long-neglected by government service, namely Masjid Kibera, Masjid Huruma, and the Masjid Nuur in Kawangware, they quickly converted to Islam and travelled to Somalia to join Al-Shabaab. They were funnelled towards Al-Shabaab’s Majimmo’ sector in Southern Somalia – an area of operations assigned predominantly to East African militants – under the command of the then 25 year-old Titus Nabiswa, who was a recent convert to Islam from Bungoma in western Kenya. In Nabiswa’s group were other militants from the Kenya coast, who had largely been radicalised by the sermons and mosque lectures (darsas) of the late Sheikh Aboud Rogo and the late Abubakar Shariff, aka Makaburi, two Mombasa preachers who had come to symbolise the face of Islamist terror in Kenya. Also in the group were Kenyan-Somalis (mostly from Nairobi’s Eastleigh and South C districts), including foreign militants such as Jermaine Grant and Thomas Evans from England, and Andreas Martin Mueller from Germany.

By 2012, Ali Gichunge, who was partly raised inside the Isiolo army barracks, was screening new Kenyan recruits in Baidoa, almost all of whom were Christian converts to Islam.

Upon their return to Kenya in 2010, some members of this group were responsible for a spate of killings, targeted especially at police officers, including twin-grenade attacks at Uhuru Park on June 13 that killed six people during a campaign rally organised by Christian leaders to drum up opposition against the proposed constitution of 2010. The police responded strongly to this violence, which seemed unsanctioned by Al-Shabaab’s core leadership in Somalia, was distinctively unilateral, and largely uncoordinated.

After developing networks with Iman Ali’s group at the Pumwani Riyadha Mosque, whose influence since 2007 had spread to other mosques in Nairobi, especially those located in neighbourhoods long-neglected by government service, namely Masjid Kibera, Masjid Huruma, and the Masjid Nuur in Kawangware, they quickly converted to Islam and travelled to Somalia to join Al-Shabaab.

By 2014, with the killing of Makaburi – it was the last of targeted assassinations of radical sheikhs including Aboud Rogo most probably by Kenyan security forces – most returnees of the Majimmo sector group had either been arrested, killed, or were on the run from the police. For instance, Stephen Mwanzi and Jeremiah Okumu were abducted in Kisauni, Mombasa, in June 2012, never to be seen again; Kassim Omondi was killed in a gun-fight with the police who had gone to arrest him in his Githurai hideout in May 2013; while Titus Nabiswa was arrested and later killed during an escape attempt in Majengo, Mombasa in October 2012. Jermaine Grant was arrested in Kisauni, Mombasa, in December 2011, but his accomplices, Fuad Manswab Abubakar and Samantha Lewthwaite, aka, the white widow, and who earned her moniker from the death of her ex-husband (and Grant’s friend) Germaine Lindsay when he blew himself up during the London bombings of 2005, escaped to Somalia.

The security threat posed by this group had been eliminated. Or so it seemed.

Amniyaat and Jaysh Ayman

Meanwhile, Al-Shabaab’s reclusive and ambitious former leader, the late Ahmed Abdi Godane, was in search of a more potent offensive against Kenya – a need that was intensified by Kenya’s decision to send its troops to Somalia to root-out Al-Shabaab from its key bases in October 2011. The plans begun in mid-2013, after Godane had eliminated key figures within Al-Shabaab’s Shura (Executive Council) that had opposed his vision of turning Al-Shabaab from an essentially Somali movement into a transnational Islamist threat.

By 2014, with the killing of Makaburi – it was the last of targeted assassinations of radical sheikhs including Aboud Rogo most probably by Kenyan security forces – most returnees of the Majimmo sector group had either been arrested, killed, or were on the run from the police.

Godane took matters into his own hands, by bypassing the network of Kenyan Al-Shabaab members, he went ahead and tasked key figures within Al-Shabaab’s special operations and intelligence branch known as Amniyaat to begin planning operations against Kenya. At midday on 21 September 2013, 4 militants under the command of Amniyaat stormed Nairobi’s upscale shopping centre, Westgate, lobbing grenades and firing indiscriminately at shoppers. The subsequent siege lasted 80 hours and resulted in at least 67 deaths.

Following Westgate, Godane ordered a reorganisation of Al-Shabaab’s military wing, Jaysh al-Usra. The commander in the Lower and Middle Juba regions, Mohamed Kunow Dulyadeyn, a Kenyan-Somali from Garissa, began expanding his operations into Garissa and Wajir while Adan Garar, his counterpart in the Gedo region, expanded into Mandera. While this meant that attacks in Northeast Kenya would intensify from 2013 onwards, the leadership vacuum that was left by the 2011-2014 purge of Kenyan Al-Shabaab members had created a problem.

In Nairobi, Mombasa, Isiolo and Marsabit, where radical preachers and their militant followers had exercised some control, before suspected agents of the state killed most of them, a storm was brewing. At the Masjid Musa in Mombasa, the radicalised and violent followers of Rogo and Makaburi were growing ever more impatient, keen on proving their worth to Al-Shabaab’s core leadership in Somalia. In fact, a criminal gang formed around the leadership of a protégé of the late Makaburi called Ramadhan Kufungwa, a Digo from Ukunda in the South Coast. According to the police, Kufungwa ordered the gang to conduct a spate of robberies and killings of police and suspected police informers in Mombasa in 2014-2015.

In Nairobi, Mombasa, Isiolo and Marsabit, where radical preachers and their militant followers had exercised some control…a storm was brewing. At the Masjid Musa in Mombasa, the radicalised and violent followers of Rogo and Makaburi were…keen on proving their worth to Al-Shabaab’s core leadership in Somalia.

One of the gang’s members was a Tuk-Tuk driver and high-school drop-out called Mahir Khalid Riziki, who ended his life in a suicide mission at the DusitD2 attack, but was then a resident of Bondeni, a seedy rundown neighbourhood in Mombasa, and a sad reminder of its glorious past. Mahir and his friends immediately found themselves on the police radar. Using networks cultivated by Kufungwa, most of them made their way into an Al-Shabaab hide-out in the Boni forest, where a new unit called Jaysh Ayman (named after its first commander), had been formed in 2014 under the leadership of another former resident of Bondeni, Luqman Osman Issa.

Jaysh Ayman brought together Al-Shabaab fighters from Uganda, Tanzania and Kenya, and was part of Godane’s plan to turn Al-Shabaab into a potent regional force. In June-July 2014, Jaysh Ayman targeted the mainland areas of Lamu County, parts of which are covered by the Boni forest, where they killed close to 97 people in a rampage that shocked the nation and therefore, bolstered Al-Shabaab’s reputation for daring attacks and spectacular violence. Despite the death of most of its early leadership during an attack at a military camp within the Boni forest in June 2015, the unit has remained a potent threat to Kenya’s national security. By the time Gichunge and Mahir joined the unit, the Kenyan contingent of Al-Shabaab militants was larger, and better trained, and featured amongst its ranks, both the educated and uneducated, including petty criminals, drug addicts and HIV positive-persons. It is these militants that Al-Shabaab is now sending to Kenya as suicide-bombers and attackers.

Jaysh Ayman brought together Al-Shabaab fighters from Uganda, Tanzania and Kenya, and was part of Godane’s plan to turn Al-Shabaab into a potent regional force.

Still the question remains: why does Al-Shabaab target Kenya?

Trans-border attacks as propaganda by deed

Despite the claim that Al-Shabaab targets Kenya due to its passion for global jihad and to pressure the Kenyan government to remove its troops from Somalia, the evidence suggests that Al-Shabaab is driven by different strategic concerns and highly rational reasons. Granted, there has been an uptick in Al-Shabaab attacks in Kenya since October 2011, when Kenya sent its troops to Somalia, but Al-Shabaab attacks in Kenya go back to May 2008, when a police post in Liboi (a few kilometres from the Somali border) came under fire. Jermaine Grant, who had been held in the post after he was arrested on his way to Somalia to join Al-Shabaab, was freed during the attack.

The Global Terrorism Database (GTD) recorded 14 more attacks before September 2011, and then 49 in 2012, 35, in 2013, 80 in 2014, 42 in 2015, and 45 in 2016. While the GTD is yet to provide figures from 2017, existing evidence shows that of the 302 trans-border attacks perpetrated by Al-Shabaab from 2008-2016, 3 occurred in Ethiopia, 5 in Uganda, 2 in Djibouti and 291 in Kenya. Brendon Cannon and Dominic Pkalya, in a recent article, have argued that beyond sharing a border with Somalia, Al-Shabaab targets Kenya more than other frontline states because of the opportunity spaces linked to Kenya’s international status and visibility, its relative free and independent media that widely publicizes terrorist attacks, a highly developed and lucrative tourism sector that provides soft targets, expanding democratic space and high levels of corruption. In sum, these variables play into Al-Shabaab’s motivations and aid planning and execution of acts that aim to fulfil the group’s quest to survive – as it losses more ground in Somalia – by maintaining its relevance on the global stage.

Of the 302 trans-border attacks perpetrated by Al-Shabaab from 2008-2016, three occurred in Ethiopia, five in Uganda, two in Djibouti and 291 in Kenya.

The Westgate, Lamu, Garissa University College, and DusitD2 attacks are all examples of attacks of maximum effect, because they garnered Al-Shabaab international headlines and catapulted it back to the centre of debate amongst counterterrorism practitioners and policymakers. This visibility serves to attract the attention of terrorist financiers, potential recruits and allies. As argued by Cannon and Pkalya, Kenya offers an array of convenient targets to Al-Shabaab that result in relevance through the regional and international publicity of propaganda by deed that is usually desired by terrorist groups.

The Westgate, Lamu, Garissa University College, and DusitD2 attacks are all examples of attacks of maximum effect, because they made international headlines and catapulted Al-Shabaab back to the centre of debate…This visibility serves to attract the attention of terrorist financiers, potential recruits and allies.

With the sizeable contingent of Kenyan militants that Al-Shabaab now controls, it is probably a matter of when, not if, Al-Shabaab will stage another attack in the country. In this way, more needs to be done to scale-up counter-terrorism efforts, especially in border security and intelligence gathering, as more support is given to prevention strategies at the communal and individual level so as to counter radicalisation.

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Dr Ngala Chome is a regular commentator on Kenyan politics and culture. His opinion pieces have been published d in Kenya’s The Standard and Daily Nation, influential online publications such as African Arguments, Foreign Affairs and the Elephant. His academic and policy research has been published in various policy reports and in peer-reviewed academic journals and edited volumes. He can be reached for comment at ngala.k.chome@gmail.com.

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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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The Pandora Papers Reveal the Dark Underbelly of the United Kingdom
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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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