Uganda’s President Yoweri Museveni came to power in January 1986, at the head of a victorious National Resistance Army rebel movement that had won a bitter five-year guerrilla war.
30 years later, with nearly an equal number of constitutional amendments to extend his stay in power, including lifting presidential term and age limits, he is a man who looks determined to put in another 32 years, if his body allows it. His spirit is certainly very willing.
He has scattered and broken the spirits of his challengers with beatings, harassment, jail and even exile. Until 2005, his grip on power was largely aided by the fact that Uganda was a single-party state, ruled by what Museveni’s government elegantly called the “no-party system”.
Everyone was assumed by default to be included in his ruling National Resistance Movement. It thus followed that there were no ideological differences among them. Therefore, candidates could run for office on the only thing they could conceivably have differences on – “individual merit” (do the people consider you a good or bad woman?).
All that was upended in the late 1990s when Museveni’s former physician in the bush and later party ideologue, Kizza Besigye, broke ranks with the NRM in one of the most audacious political moves of the time in Uganda, and challenged him in the 2001 elections. For Museveni to triumph, it took a muscular vote-rigging effort, and the raising of a militia led by a vexatious colonel to suppress the wave of support that greeted Besigye.
However, Besigye had tasted the forbidden political fruit, and there would be no going back. The country’s rejection of the “no-party” system, and the opposition to Museveni’s 15-year rule couldn’t be denied. Four years later, multiparty politics was restored, but there was a caveat to it: the referendum that introduced pluralism was accompanied by a proposal to scrap presidential term limits.
In late 2005, a senior Museveni aide sat across my editorial conference desk at the Monitor media offices in Kampala, where I was editor. With just the two of us, there was no need to play to the gallery, so we could speak reasonably about the election. He said he had studied the election outcome in some detail, and his conclusion was that Museveni was unlikely to be unseated in the long term by a conventional opposition candidate.
The force that would bring him, and other African strongmen, down, he said, was urbanisation. Even at that point when Museveni had a stranglehold on the country, urban areas, especially Kampala, eluded him. Despite the ruling NRM deploying the most lethal weapons in its vote-cheating arsenal, they had failed to wrestle the capital’s mayorship and the majority of the parliamentary seats around the capital, from the opposition. The bulk of the opposition gains in recent years have all been largely in urban areas.
In late 2005, a senior Museveni aide sat across my editorial conference desk at The Monitor, where I was editor. With just the two of us, there was no need to play to the gallery…He had studied the election outcome in some detail, and his conclusion was that Museveni was unlikely to be unseated in the long term by a conventional opposition candidate.
They were cosmopolitan, more expensive to bribe, more knowledgeable, more demanding of higher value public goods (jobs and housing, not maize seeds like the rural voters might), he noted. Most African governments, he said, either don’t have the financial and policy resources to assuage these urban demands, and where they do, they face entrenched opposition by vested interests, some regime-linked, for them to be effective.
Today, looking at the rising wave of protests over service delivery, cost of living and jobs across the continent from the Cape to Tunis, and Mombasa to Lagos, he could not have been more prescient.
The conventional wisdom goes that Africa has too many young people who are poorly educated, and economies that don’t offer them anything gainful to do so they are angry – especially because the politicians and bureaucrats are stealing the resources that would have gone to creating opportunities. Or they are educated, but still have no opportunities, and so are frustrated and therefore inclined to take down establishments that aren’t working for them.
Indeed Africa’s population has been on the rise over the past 50 years, and over 60 percent of its current 1.3 billion population is below the age of 25. The continent’s youth account for 60 percent of all Africa’s unemployed. This has led to sometimes-apocalyptic declarations of the continent’s youth bulge being a “ticking time bomb”.
If that were the only driver of current unrest in Africa, it would be relatively easy for scrupulous and effective governments to fix. However, it is not.
Rather than just protesting at poor economic conditions, and a bleak future, Africa’s youth are doing much more, and have many in the world frightened. For example, Europeans are afraid of the wave of African migrants, and people of colour in general, driven from their homes by lack of economic opportunities overrunning their cities and taking over their countries, given their declining populations. That fear is rocking the European Union, feeding the rise of anti-immigrant forces.
Rather than just protesting at poor economic conditions, and a bleak future, Africa’s youth are doing much more, and have many in the world frightened.
To be sure, young Africans are on the move. The majority don’t try to negotiate treacherous Mediterranean waters to get to Europe, or trudge through war-ravaged Yemen to get to the Gulf. More than 80 percent of African migration occurs within the continent.
But that is not the only movement they are making. They are also moving from the rural to urban areas, with Africa’s urban population projected to reach 60 percent of the total population by 2050.
They are moving from the analogue to the digital world. By 2017 there were 419 million Africans connected to the internet via mobile broadband, and that number is estimated to hit 1.07 billion by the end of 2020.
They are moving from consuming culture in the real world, to doing so online, with its artists beginning to ride the viral wave in a big way. Davido’s “Fall” in January 2019 became the longest charting Nigerian single in Billboard history, and the first video by an African musician to rack up more than 100 million views on YouTube in December. He was closely followed a few weeks later by Yemi Alade whose hit single “Johnny” pulled her across the line to make her the first female African artist to reach the 100 million views milestone on YouTube.
They long ago moved from watching local to global football. They are abandoning the old hierarchical Catholic and Protestant churches, and signing up to the range of Pentecostal and other independent churches, a few led by charlatan pastors, hawking instant miracles, and direct tickets to paradise. At base, however, they are looking for real life solutions, not to go to heaven.
Davido’s “Fall” in January 2019 became the longest charting Nigerian single in Billboard history, and the first video by an African musician to rack up more than 100 million views on YouTube… A few weeks later Yemi Alade’s “Johnny” pulled her across the line to make her the first female African artist to reach the 100 million views milestone on YouTube.
And, yes, in all African countries except a handful, opinion polls tell us as high as 50 percent to 75 percent of them would like to move as far away from Africa or their home countries as they can.
These actions, aspirations, and shifts are challenging the status quo, borders, and power in non-traditional ways, and they are panicking.
Understandably. If you have millions of your young people speaking their minds freely on social media, without passing through conventional channels such as mainstream media, schools, and churches curated by grown ups who are considered trustworthy guardians, the national project can be imperilled. If you have young people ogling skimpily dressed men and women, or watching pornography, going against longstanding moral codes and the rules about when and how you see the opposite sex naked, it threatens the soul of the republic.
They are listening to all sorts of music, some of it with cuss words, twerking dancers, and simulated sex online.
The establishment is striking back. In Uganda, you have an anti-pornography commission, and a social media access tax that is a sin tax. A similar digital sin tax has been slapped in Zambia, and put on hold after a backlash in Benin. In Tanzania, the joys of blogging will set you back a stiff $900 in fees. In Egypt, social media users with more than 5,000 followers are considered publishers, and are subject to state regulation.
If you have millions of your young people speaking their minds freely on social media, without passing through conventional channels such as mainstream media, schools, and churches curated by grown ups who are considered trustworthy guardians, the national project can be imperilled.
Music is being banned around Africa in record numbers, and musicians like Diamond Platinumz in Tanzania are not even allowed to travel and perform their banned music in more liberal jurisdictions. Countries like Uganda are now considering new rules to censor lyrics, plays, and movie scripts.
Music is being banned around Africa in record numbers.
In other words, an old elite that wants to keep them in the structures that constitute the current states is blocking young people’s movement to alternative political, cultural, aspirational, and virtual worlds. Some of the protests are informed by youth resistance against these attempts by power to control or kill off shifts to their “new world”, as it were.
This mass migration across many aspects of life on the continent represents an old phenomenon in some respects. Like elsewhere, every generation has tried not just to remake their environment to conform to their worldview, but also to claim their share of the national goods.
A time always comes when every national cohort seeks a round of redistribution of the nation’s wealth. It can take different forms, including a chance to unlock natural resources through policy, direct handouts, or a place at the political table.
For the first 40 years of Africa’s post-independence period, it was fairly straightforward. There was independence, and the political and economic freedoms that came with it. Most African countries had relatively small populations, and the prices of the primary commodities they sold in the world market were fairly stable.
A time always comes when every national cohort seeks a round of redistribution of the nation’s wealth.
There was an expansion of education, health, jobs new and old as the colonial officials vacated, the generation that fought for independence and their children were, on the whole, well rewarded. The bar was low.
There were European settler farms, businesses, and Asian stores to parcel out among the new African elite, as in Kenya and Zimbabwe, in the flood of“Africanisation” and nationalization actions in their various forms.
Today, these have run their course. There is little left to steal or expropriate for the current generation. Aid has slowed down, and cheap post-financial crisis capital is no longer flowing.
Chinese money doesn’t travel far to the private sector, largely fattening state bureaucrats and regime affiliated business people.
Post Cold War economic liberalisation either recapitalised a few bankrupt state enterprises, or privatised them to the new elite spawned from the second and third liberation wave. The rest were buried in the graveyard of structural adjustment.
Meanwhile Chinese goods, cheaper and wider in range than the stuff that flowed in from Dubai after 1990, have ravaged artisanal industries, once thought to be immune to globalisation, as has happened in Sudan, compounding strongman Omar al-Bashir troubles.
Post Cold War economic liberalisation either recapitalised a few bankrupt state enterprises, or privatised them to the new elite spawned from the second and third liberation wave.
Besides increasing urbanisation, even in rural areas more and more Africans are moving to live a short distance away from main roads and highways. Just seeing the shiny cars, and the movement on pick-ups and lorries full of goods they cannot afford (mattresses, furniture, beer) radicalises them.
As Zimbabwe has proved, there’s little political capital to be gained from land redistribution. Most people don’t have the capital to work the land profitably. In many cases the soil is tired, trashed by either abuse of fertiliser in the past, or population pressure, and environmental ravages of recent decades that have ravaged its fertility.
On the whole, the cost of expropriation and nationalisation, once popular tools, is too high, because you are no longer grabbing from European settlers or an Asian minority that is afraid to fight back, but your own. You risk a civil war when you do.
The longest period of peace and democracy on the continent has bequeathed us an Africa where the likelihood of dying in a traffic accident is much higher than being killed by a bullet in conflict.
But it also means that it is harder now to get rid of leaders or ruling parties that have entrenched themselves and often rig elections as in Uganda, Togo, Gabon, Cameroon, Republic of Congo, Equatorial Guinea, Djibouti, to name a few.
The longest period of peace and democracy on the continent has bequeathed us an Africa where the likelihood of dying in a traffic accident is much higher than being killed by a bullet in conflict.
The five-to-seven year cycle in and out of power that happened in the coup era is now harder to achieve if you find a determined strongman dedicated to hanging on. Media liberalisation has actually helped dictators, because you cannot seize the state broadcaster and declare yourself the new junta leader. There are dozens, even hundreds of private radio and TV stations, some controlled by regime supporters, who will foil you, as happened in Burundi in 2015 and Gabon earlier in the year.
So we have a war fought on so many fronts. Offering people jobs and money cannot end it, because some of the demands are born of sharp cultural cleavages.
It is complex, because some of it stems from progress: expanded democracy, health, and technology. In turn, the young are threatening the old states in new ways. Previously, the worst was a guerrilla insurgency, and maybe a deadly famine; now it’s urbanisation, digital secession by the youth, and a different kind of imperialism we quite don’t know how to confront – China’s global market communist imperialism. The novelty of it all is exciting and even mildly intoxicating – if you are not a Big Man in an African State House.
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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.
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.
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.
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.
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.
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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