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Patriarchy, Sexual Abuse and Impunity: As the Catholic Church Confronts Its Crisis, Will the UN Follow Suit?

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So ingrained is the Old Boys’ network within the UN that persecuting whistleblowers is part of a culture of male privilege. Will Sec-Gen Guterres turn the tide?

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Patriarchy, Sexual Abuse and Impunity: As the Catholic Church Confronts Its Crisis, Will the UN Follow Suit?
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In an unprecedented move, the Catholic Church, under the leadership of Pope Francis, has decided to finally address an issue that has plagued the church for decades: that of sexual abuse of women and children by priests, a scourge that has left many victims around the world broken. The bold step by Pope Francis to confront this uncomfortable issue – even at the risk of tainting the Catholic Church’s reputation – is one that even the aid industry, particularly the United Nations, has been reluctant to tackle head on, despite growing pressure from the #MeToo movement. Many observers, including yours truly, believe that recent efforts by the UN Secretary-General Antonio Guterres to address sexual harassment and abuse by UN employees could be merely cosmetic; they will not change anything because the UN has a strongly embedded culture of impunity. As one former UN staff member wrote in the New York Daily News, the UN has “an anti-MeToo culture” and is “an old boys’ club”.

Nine months ago, I wrote an article on why I believed that the #MeToo movement would have little or no impact on the United Nations’ male-dominated, highly hierarchical and secretive work environment. I was convinced that because the UN is generally unreceptive to criticism, it was highly unlikely that victims of sexual harassment or assault would come forward or be listened to. I showed, through various examples that UN employees accused of sexual harassment or assault are rarely reprimanded or punished. In fact, some of those implicated have been conveniently transferred or allowed to resign or retire quietly with full benefits – a practice that the Catholic Church perfected when confronted with sexual abuse cases.

However, internal surveys and pressure from women’s rights advocates may have finally forced the UN to take a good hard look at itself, and could bring about some changes in how the world body is governed and managed. An internal UN survey, conducted by Deloitte, whose results were released in January this year, found that a third of UN staff members surveyed had been sexually harassed. The survey noted that the most vulnerable targets were women and transgender personnel aged between 25 and 44. Two out of every 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.

Internal surveys and pressure from women’s rights advocates may have finally forced the UN to take a good hard look at itself, and could bring about some changes in how the world body is governed and managed.

Abuse of authority and defective leadership

However, the UN Staff Union says that sexual harassment is only one among many abuses of authority that take place at the UN. Results from its own survey show that sexual harassment makes up only about 16 per cent of all forms of harassment. Forty-four percent of those surveyed 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. 20 per cent felt that they had experienced retaliation after reporting misconduct: “The results confirm that this has a debilitating effect on staff morale and work performance, and that there are continued barriers to reporting, including fear of retaliation and a perception that the perpetrators, for the most part, enjoy impunity,” admitted UN Secretary-General Antonio Guterres in a letter to UN staff.

An internal UN survey…found that a third of UN staff members surveyed had been sexually harassed. The survey noted that the most vulnerable targets were women and transgender personnel aged between 25 and 44.

Findings from the two surveys come at a time when women’s rights activists, including the International Center for Research on Women, the Center for Women’s Global Leadership and Gender at Work, have been advocating for a more “Feminist United Nations” that fosters gender equality and parity, especially at the highest levels. The upper echelons of the UN are still predominantly male and no woman to date has served as the Secretary-General. The activists would also like to see the UN to take sexual harassment cases more seriously.

In response to this campaign and the momentum generated by the #MeToo movement, Guterres has taken some actions, including installing a sexual harassment hotline and establishing a Task Force on Sexual Harassment.

However, he has not taken any action against senior officials accused of sexual harassment or against those who protect the perpetrators. For instance, no action has been taken against the UNAIDS Executive Director, Michel Sidibe, who has been accused of failing “to prevent or properly respond to allegations of harassment, including sexual harassment, bullying and abuse of power” at UNAIDS. An independent panel also found that Sidibe’s “defective leadership” had fostered a dysfunctional work environment at the organisation where employees believed they could get away with anything. Meanwhile, Sidibe has not been fired by the UN Secretary-General though he has said that he will step down in June this year, a decision he made voluntarily without any pressure from the UN Secretary-General and without any sanctions.

In response to this campaign and the momentum generated by the #MeToo movement, Guterres has taken some actions, including installing a sexual harassment hotline and establishing a Task Force on Sexual Harassment.

Systematic racial discrimination

A recent spate of revelations by whistleblowers at the World Health Organisation (WHO) shows how ineffective leadership allows abuse to continue. Three emails addressed to WHO directors, which were leaked to the Associated Press, complained of rampant racism at the organisation and theft of funds intended for Ebola victims. At WHO’s headquarters in Geneva, stated one email, African staff members suffer “systematic racial discrimination”.

However, Guterres has not taken any action against senior officials accused of sexual harassment or against those who protect the perpetrators. For instance, no action has been taken against the UNAIDS Executive Director, Michel Sidibe, who has been accused of failing “to prevent or properly respond to allegations of harassment, including sexual harassment, bullying and abuse of power” at UNAIDS.

The emails also spoke of widespread corruption and mismanagement of funds. One whistleblower claimed that logistics and procurement officers at WHO are known to be corrupt and that during one Ebola outbreak in the Democratic Republic of the Congo last year, a plane was hired to transport three vehicles from a warehouse in Dubai at the highly inflated cost of one million dollars.

Last year, Al Jazeera featured a documentary that showed how Big Pharma is also influencing the way WHO’s senior management makes decisions about global public health crises. The documentary suggested that the 2009 swine flu pandemic might have been fabricated to benefit pharmaceutical companies manufacturing the swine flu vaccine. One former delegate to the European Council stated: “The WHO officials have no idea about such things [pandemics]. They depend on scientists. And the scientists are allocated to them by the countries and by the organisations that finance the WHO. And many of them gave advice and made decisions that benefited the pharmaceutical industry.”

One whistleblower who has for years been seeking compensation from WHO for a work-related injury told me that her ordeal was so harrowing that it had left her emotionally depleted and had ruined her financially…

Tedros Adhanom Ghebreyesus, WHO’s Director General, has promised an internal investigation into the recent racial discrimination and corruption allegations. While this is a good sign, we must also remember that the UN is essentially a political organisation and that influential member states and its biggest donors often have a greater say in how the organisation is run – and who gets punished – than those who have less influence and clout. There is also a general tendency to cover up a wrongdoing than to address it, and to punish those who expose the crimes committed.

Shooting the messenger

Guterres’ stated commitment to improve gender parity and to look more seriously into sexual harassment cases could just be a whitewashing exercise to calm down critics until the dust settles. This is what has happened in the past. For instance, not one company or individual has to this day been charged with diverting money or receiving kickbacks from the scandalous UN Oil-for-Food Programme in Iraq, which resulted in the loss of billions of dollars that were supposed to help the Iraqi people. By the time the Kofi Annan-initiated Volcker Commission came out with its findings on the programme and revealed names of those involved in the theft, Saddam Hussein had been deposed by American and British coalition forces, and the programme had been closed.

Similarly, UN peacekeepers accused of raping or sexually exploiting displaced or refugee women and children in strife-torn countries suffer few consequences; recent such cases have not resulted in any convictions though there are now efforts to bar countries whose peacekeepers have been implicated in sexual abuse from serving in peacekeeping missions.

On the other hand, the majority of UN whistleblowers who have reported misconduct, including corruption, abuse of authority and sexual harassment and assault, have been fired, demoted or reprimanded. Few of their allegations are investigated, and even if they are, the findings are rarely made public. In 2014, for instance, Anders Kompass, the director of field operations at the Office of the UN High Commissioner for Human Rights, was suspended and even “investigated” after he revealed to French authorities cases of sexual abuse of displaced boys by French peacekeepers in the Central African Republic. Kompass eventually resigned from the organisation. He told a journalist that his ordeal had left him “disappointed and full of sadness”.

Those who have sought justice from the UN’s internal justice systems have hit a wall, which suggests that these systems were designed to protect the perpetrators and the UN’s reputation rather than to safeguard whistleblowers and to bring about remedial action.

The majority of UN whistleblowers who have reported misconduct, including corruption, abuse of authority and sexual harassment and assault, have been fired, demoted or reprimanded.

In my own research, I found that the emotional toll of whistleblowing in the UN is so huge that most whistleblowers never fully recover from their traumatic experience. The decision not to report wrongdoing is thus often based on self-preservation.

The irony is that most UN whistleblowers don’t even realise that they are blowing the whistle; most believe they are simply doing their job by reporting wrongdoing. It is only when the retaliation against them begins that they realise that they have stepped on some very big toes.

Those who are fired from the organisation or whose contracts are not renewed find themselves shut out of the closely-knit international development community, which blocks their future career development. Vindictive senior managers are known to blacklist whistleblowers and ruin their reputations, which results in the latter not being considered for jobs in similar organisations. One whistleblower who has for years been seeking compensation from WHO for a work-related injury told me that her ordeal was so harrowing that it had left her emotionally depleted and had ruined financially – this from an organisation that is committed to promoting global health!

Toxic work environment

Many people have asked me how an organisation that is so multicultural and which is devoted to the advancement of human rights can allow sexism and racism to thrive within its own corridors. I tell them that an organisation is only as good as its people; if you hire racists and sexists, you will end up in a racist and sexist work environment, regardless of the noble aspirations of the organisation.

And if the organisation does not have in place policies and practices that deter abuse and discrimination – and especially if these policies and practices are not followed diligently – then that organisation will simply reflect the negative values of the wider society (possibly at its worst because there are few or no penalties for those who demonstrate racist or sexist behaviour). This creates a highly toxic and unhealthy work environment, especially for women.

As someone who has worked for the UN for more than a decade, I can tell you that the people who work there are not superhuman, nor are they particularly interested in the progress and protection of human beings. Some, especially at the top echelons, are political appointments who come with the baggage and privileges that they inherited from their own particular social, political or cultural backgrounds. They are simply reflections of their societies. And because they are political appointees, they feel no need to follow the dictates of the UN or its global mandate. (This explains why representatives from countries with some of the most dictatorial and repressive regimes end up being voted into the UN Human Rights Council.) There is no test that UN staffers have to pass to show their humanitarian or development credentials. Most are simply careerists who seek a comfortable job abroad with generous tax-free perks. So what you are left with are cynical and paranoid bureaucrats whose only mission is their own career development.

In my own career at the UN, I have seen how senior male professionals will have no qualms about ganging up against a female colleague to intimidate her or to force her out of the organisation. They will even go to the extent of assassinating her character to support a member of their “boys club”. The unwritten rule (which I found out about rather late) is that senior male managers will stick together and defend each other. In a highly publicised 2004 case, for example, the then UN Secretary-General, Kofi Annan, publicly stated that allegations of sexual harassment made by a Geneva-based UN staff member against his friend, the then UN High Commissioner for Refugees, Ruud Lubbers, “could not be substantiated” even though an internal investigation had confirmed her account.

It is possible that the recent push by the #MeToo movement and women’s rights activists may finally turn the tide and make the UN a more egalitarian, woman-friendly workplace. It is possible that the UN is not completely beyond reform – that it can put in place systems that minimise abuse of authority and weed out those who are doing most harm to the organisation and to its ability to fulfill its mandate of promoting human rights and justice around the world.

One reform measure would be to order thorough and credible investigations into allegations of wrongdoing and to punish the perpetrators. This is a tall order because, like the Catholic Church, the tendency at the UN’s top echelons is to cover up the crime (especially sexual abuse and theft) rather than expose it, and also because the people who report wrongdoing are often junior or mid-level professionals who can be easily intimidated by their superiors and bullied into not speaking up. Unless the culture of retaliation against whistleblowers is stopped, there is little hope that whistleblowers will get any justice and that wrongdoing within the organisation will be curtailed.

Like the Catholic Church, the tendency at the UN’s top echelons is to cover up the crime

The most effective method, both in the UN and in other large bureaucratic organisations like the Catholic Church, is for the leadership to take action against those committing offences. Even Pope Francis has acknowledged that this is an important deterrent – and is the kind of justice that victims of sexual abuse would like to see in the Catholic Church. Sexual abusers and their protectors and those who abuse their power should be fired and stripped of their titles. The UN Secretary-General can establish all kinds of hotlines and task forces, but unless he is seen to be going after those who are abusing their authority, sexually harassing employees or sexually exploiting and abusing vulnerable women and children in poor war-torn countries, nothing will change, and the UN will continue to remain a safe haven for sexual predators and bullies.

The UN Secretary-General can establish all kinds of hotlines and task forces, but unless he is seen to be going after those who are abusing their authority…nothing will change, and the UN will continue to remain a safe haven for sexual predators and bullies.

This would be unfortunate, because in a world witnessing rising ultra-nationalism, fascism, misogyny and intolerance, the United Nations is perhaps the only hope for a more just and inclusive world order.

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Rasna Warah is a Kenyan writer and journalist. In a previous incarnation, she was an editor at the United Nations Human Settlements Programme (UN-Habitat). She has published two books on Somalia – War Crimes (2014) and Mogadishu Then and Now (2012) – and is the author UNsilenced (2016), and Triple Heritage (1998).

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

A disturbing report on the sexual exploitation and abuse of women and children in the DRC has laid bare the failure of UN agencies to protect vulnerable populations.

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Unlike the Rest of the UN, Is WHO (Finally) Taking Sexual Abuse Seriously?
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It is extremely unfortunate that at a time when the World Health Organization (WHO) is spearheading a campaign to get people vaccinated against COVID-19, and pushing rich countries to donate their vaccines to low-income countries instead of hoarding them, it is confronted with revelations that suggest deep systemic failures within the global health agency that have allowed its employees to get away with sexual exploitation and abuse of vulnerable populations.

Last month, WHO released a report that confirmed that there was sexual abuse of women and children by WHO employees in the Democratic Republic of the Congo (DRC) during an outbreak of Ebola in the country’s North Kivu and Ituri provinces between 2018 and 2020. This report was the result of an independent commission’s investigations following an exclusive media report last year that found that dozens of women in the DRC had been sexually exploited by aid workers, including WHO employees.  The most disturbing revelation was that some of the perpetrators were medical doctors. Many of the abused women were offered jobs in exchange for sex; others were raped or coerced into having sex against their will. There were also stories of women being forced to have abortions after they were sexually abused. The independent commission stated that its findings showed that 21 of the 83 alleged perpetrators were WHO employees, and that “individual negligence” on the part of WHO staff may have amounted to “professional misconduct”.

This is not the first time that sexual abuse and exploitation of women and children by UN employees has been reported in the DRC. In 2004, UN Secretary-General Kofi Annan ordered an investigation into sexual abuses by UN peacekeepers in the country after it became apparent that such abuse was widespread in this mineral-rich but conflict-ridden country.  The investigation detailed various forms of abuse, including trading sex for money and food. It was in the DRC that the term “peacekeeper babies” first emerged. Women who had given birth after being raped by UN peacekeepers spoke about being abandoned by both their families and the peacekeepers who had impregnated them. However, the report had little impact on the UN’s peacekeeping mission in the DRC – none of the perpetrators were brought to book nor were the victims compensated.

Sexual abuse of vulnerable populations, especially women and children, is particularly rampant in UN peacekeeping missions.  In 2017, the Associated Press revealed in an exclusive report that at least 134 Sri Lankan UN peacekeepers had exploited nine Haitian children in a sex ring from 2004 to 2007. Many of the victims were offered food or money after they were sexually violated. (These “sex-for-food” arrangements have also been reported in other countries experiencing conflict or disaster.) Although 114 of these peacekeepers were sent home after the report came out, none of them were prosecuted or court-martialled in their countries.

One reason why UN peacekeepers evade the consequences of their actions is that under the Status of Forces Agreement negotiated between the UN and troop-producing countries, UN peacekeepers fall under the exclusive jurisdiction of the country they come from. When cases of abuse are reported, they are either ignored by the countries, or the perpetrators are sent home—no questions asked.

Unfortunately, civilian UN staff who commit crimes such as rape also evade any legal action because the UN accords the UN and its employees immunity from prosecution. This immunity can only be waived by the UN Secretary-General, but the Secretary-General hardly ever waives this immunity even when there is overwhelming evidence against a UN staff member. This means that cases brought against UN employees cannot be tried in national courts, nor can the perpetrators be detained or arrested by national law enforcement agencies.  

At a press conference held last month, WHO’s director-general, Tedros Adhanom Ghebreyesus, apologised to the victims of the abuse in the DRC at the hands of WHO employees and promised to take action to prevent such abuse from happening again. “I am sorry for what was done to you,” he said. “What happened to you should not happen to anyone.”

The head of WHO has also promised to review the organisation’s emergency response measures and internal structures and to discipline those staff members who fail to report cases of sexual exploitation and abuse. WHO member states have also called for an “immediate, thorough and detailed assessment of what went wrong”.

I have no doubt that Mr Ghebreyesus is serious about fixing a problem that has plagued the UN for decades. In fact, his response to the sexual abuse allegations is much more honest and sincere than the responses of other heads of UN agencies whose employees have been accused of allowing sexual exploitation and abuse to occur under their watch. One, he established an independent commission to look into the sexual abuse allegations, which rarely happens. (Most UN agencies either ignore the allegations or order an internal investigation, which invariably determines that the allegations “could not be substantiated”.) Two, he has publicly committed to undertake wholesale reforms in WHO’s structures and culture that allow sexual exploitation and abuse of vulnerable populations to go undetected, unreported and unpunished. Three, he has agreed to the independent commission’s recommendation that an independent monitoring group be set up within two months to ensure that the commission’s recommendations are enforced.

“What happened to you should not happen to anyone.”

Most UN agencies would not welcome such intense scrutiny of their operations by independent bodies, so WHO’s efforts in this regard are laudable.  WHO’s actions could also be attributed to the fact that, unlike other UN agencies that report to the General Assembly, WHO reports to the World Health Assembly that comprises delegates that have technical competence in health matters and represent their governments’ ministries of health. Because it is a specialised UN agency not governed by the General Assembly, WHO can establish its own rules without deferring to the General Assembly. In this sense, WHO enjoys relative autonomy from the UN system’s gargantuan and highly opaque bureaucracy.

Cover-ups and impunity 

WHO’s response is a far cry from the normal tendency of UN bosses to cover up cases of sexual abuse and exploitation taking place under the UN’s watch.  In 2014, for instance, when a senior UN official reported to the French government that French peacekeepers operating in the Central African Republic were sexually abusing boys as young as eight years old, his bosses at the Office of the UN High Commissioner for Human Rights (OHCHR) responded by asking him to resign. When he refused to do so, they suspended him for “unauthorized disclosure of confidential information”, and, in a typical case of “shooting the messenger”, they directed their internal investigations towards him rather than towards the peacekeepers who had allegedly abused the children. This case, which received wide media coverage, did not lead to significant changes in how the UN handles sexual abuse cases. On the contrary, Anders Kompass, the UN official who reported the abuse, was retaliated against, and eventually left the organisation in frustration.

Cases of UN employees sexually abusing or harassing their colleagues are also brushed under the carpet. In 2018, for example, when an Indian women’s rights activist accused the United Nations Population Fund (UNFPA)’s India representative of sexual harassment, the UN agency said that its preliminary investigations showed that her allegations could not be substantiated. The Code Blue Campaign, which tracks instances of sexual harassment and exploitation by UN employees, dismissed the findings of the investigation, calling them a “cover-up.” (Soon after the activist made her allegation, UNFPA evacuated the accused from India, which further muddied her case.)

This is not an isolated case. In 2004, when a staff member at the UN’s refugee agency accused the head of the organisation of sexual harassment, the UN Secretary-General, Kofi Annan, dismissed her claims. Recently, a woman working at UNAIDS lost her job soon after she filed a complaint of sexual harassment against UNAIDS’ deputy executive director. This was after Michel Sidibé, the then head of UNAIDS, told a staff meeting that people who complain about how the agency was handling sexual harassment “don’t have ethics.”

The UN’s highly patriarchal and misogynistic culture allows such abuse to continue unabated. In 2018, the UN conducted an internal survey that found that one-third of the UN employees surveyed had experienced sexual harassment. It revealed that the most vulnerable targets were women and transgender personnel aged between 25 and 44. Two out of three harassers were male and only one out of every three employees who were harassed took any action against the perpetrator. About one in ten women reported being touched inappropriately; a similar number said they had witnessed crude sexual gestures.

Another survey by the UN Staff Union found that sexual harassment was one among many abuses of authority that take place at the UN. Results of the survey showed that sexual harassment made up about 16 per cent of all forms of harassment. Forty-four per cent said that they had experienced abuse of authority; of these, 87 per cent said that the person who had abused his or her authority was a supervisor. Twenty per cent felt that they had experienced retaliation after reporting the misconduct.

The UN’s highly patriarchal and misogynistic culture allows such abuse to continue unabated.

Since then, the UN has established a new sexual harassment policy and a hot line for victims of sexual harassment. However, remedial actions spelled out in the policy appear to be mediation or counselling exercises rather than disciplinary ones. The emphasis is on psychosocial support and counselling (for the victims, of course) and “facilitated discussions” between the “offender” and the “affected individual”. Disciplinary measures include physical separation of the offender from the victim, reassignment, and temporary changes in reporting lines. Official internal investigations are permitted, but as I have tried to illustrate, most internal UN investigations into cases of sexual harassment and other kinds of wrongdoing inevitably conclude that the sexual harassment or wrongdoing “could not be substantiated.” This leaves victims vulnerable to retaliation.

Perhaps WHO can lead the way in showing the rest of the UN system how to tackle sexual exploitation, abuse and harassment by UN employees. WHO has already terminated the contracts of four of its employees who were accused of sexually exploiting women in the DRC. However, a true test of WHO and the UN’s commitment to end such abuses would be if they reinstated all those who were fired for reporting such cases. I for one am eagerly awaiting the independent monitoring group’s findings on whether or not WHO has taken tangible and impactful measures to protect people from being sexually abused and exploited by its employees and to safeguard the jobs of those who report such abuses.

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

Katiba Institute adds to the growing comparative discussion around constitutional statutes and therefore ought to be keenly studied by students of comparative constitutional law.

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Previously, I have discussed the concept of constitutional statutes. Recall that a constitutional statute is a law that is “enacted in pursuance of the State’s positive obligation to fulfil a constitutional right.” While certain constitutional rights are self-enforcing (such as, for example, the right to free speech ipso facto prohibits the State from engaging in arbitrary censorship), others – by their very nature – require a statutory framework to be made effective. For example, the right to vote cannot be made effective without an infrastructure in place to conduct free and fair elections, including the existence of an independent, non-partisan Election Commission. Insofar as such a legislative framework is not in existence, the state is arguably in breach of its positive obligations to fulfil the right in question. Thus, to refine the definition further, a constitutional statute is a statute that “provides a statutory framework towards implementing a fundamental right, thereby fulfilling the state’s positive obligation to do so.”

What follows from the finding that a particular law is a constitutional statute? On this blog, we have discussed constitutional statutes in the context of amendments to the Right to Information Act, which have sought to undermine the independence of the Information Commissioners. We have argued that, insofar as constitutional statutes stand between the individual and the State, mediating the effective enforcement of rights, legislative amendments that prevent them from fulfilling this function, are thereby unconstitutional. Furthermore, once a constitutional statute has been enacted, the principle of non-retrogression applies – that is, the legislature cannot simply repeal the law and go back to a position where the right in question was unprotected. Another example discussed on this blog is the recent judgment of the Kenyan Court of Appeal in David Ndii, where it was held that the implementation of the Popular Initiative to amend the Kenyan Constitution required a legislative scheme, as also its discussion of the previous judgment in Katiba Institute, where an attempt to reduce the quorum for resolutions of the Independent Electoral and Boundaries Commission was held to be unconstitutional.

The judgment of the High Court of Kenya of 14 October 2021 – also titled Katiba Institute – provides an additional, fascinating implication that flows from the finding that a law is a constitutional statute. Katiba Institute arose out of the efforts of the Government of Kenya to implement a national biometric identification system called NIIMS, and the judgment of the High Court with respect to a challenge to the constitutionality of NIIMS (Nubian Rights Forum), which we discussed on this blog back in 2019. Recall that in Nubian Rights Forum, after a detailed analysis, the High Court struck down a part of NIIMS, and allowed the government to go ahead with the rest of the programme subject to the implementation of an effective data protection law. Therefore, as I had noted in that post:

The High Court’s decision – at least in part – is a conditional one, where the (legal) future of the NIIMS is expressly made dependant on what action the government will take. Thus, there remain a significant number of issues that remain open for (inevitable) litigation, even after the High Court’s judgment.

Notably, Kenya had enacted a data protection law in between the hearings and the judgment, but the High Court – in its verdict – was insistent that until the point of effective implementation, the continued rollout of NIIMS could not go on. And this was at the heart of the challenge in Katiba Institute: the applicant argued that NIIMS had been rolled out, in particular, without complying with Section 31 of the Kenyan Data Protection Act, which required a Data Impact Assessment as a pre-requisite to any data collection enterprise. In response, the state argued that the data collection in question had already been completed before the passage of the Data Protection Act, and that therefore – in accordance with the general principle that statutes are not meant to apply retrospectively – Section 31 was inapplicable to this case.

Engaging in impeccable constitutional statute analysis, Justice Jairus Ngaah noted that the Data Protection Act was “enacted against the backdrop of Article 31 of the Constitution.” Article 31 of the Constitution of Kenya 2010 guarantees the right to privacy. As the learned Justice noted, in its very preamble, the DPA stated that its purpose was to “give effect to Articles 31(c) and (d) of the Constitution.” Justice Ngaah then rightly observed, “The need to protect the constitutional right to privacy did not arise with the enactment of the Data Protection Act; the right accrued from the moment the Constitution was promulgated.”

The judgment of the High Court of Kenya provides an additional, fascinating implication that flows from the finding that a law is a constitutional statute.

It therefore followed that, on the balance, an interpretation that gave the DPA retrospective effect was to be preferred over one that did not. A contrary interpretation would mean that the state was entitled to collect data and infringe the right to privacy even in the absence of a legislative scheme. Or, in other words, having failed to implement its positive obligation to enact a constitutional statute to give effect to the right to privacy, the state could then take advantage of its own failure by nonetheless engaging in data collection enterprises anyway. This, naturally, could not be countenanced. And in any event, given that Article 31 had always existed, it followed that:

. . . there was always the duty on the part of the State to ensure that the Bill of Rights . . . is respected and protected. Section 31 of the Act does not impose any more obligation or duty on the state than that which the state, or the respondents . . . have hitherto had to bear.

On this basis, Justice Ngaah therefore held that NIIMS had been rolled out in breach of Section 31, and therefore, first, quashed the rollout itself, and secondly, issued a mandamus restraining the State from rolling it out again without first complying with Section 31.*

The judgment in Katiba Institute does not, of course, answer the number of questions that still remained to be resolved after the Nubian Rights Forum judgment, including some problematic aspects of the DPA itself. Those questions were not, however, before the court in this instance; on the other hand, the court’s finding that constitutional statutes apply retrospectively – and the reasons for that finding – make it a landmark judgment. Katiba Institute adds to the growing comparative discussion around constitutional statutes, Fourth Branch bodies, and “Guarantor Institutions”, and therefore ought to be keenly studied by students of comparative constitutional law.

* One cannot, of course, help comparing this with the judgment of the Indian Supreme Court in the Aadhaar case, where despite the fact that Aadhaar data was collected for more than five years without any law whatsoever, it was retrospectively validated by the Supreme Court.

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The Pandora Papers Reveal the Dark Underbelly of the United Kingdom

Through its network of tax havens, the UK is the fulcrum of a system that benefits the rich and powerful.

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There’s the role, for instance, played by the British Virgin Islands, an overseas territory of the UK that functions as a tax haven. Czechia’s multimillionaire prime minister used the territory to hide his ownership of a chateau in France. Others, including the family of Kenyan president Uhuru Kenyatta and Vladimir Putin’s PR man, have made similar use of the islands to conceal wealth – while Tony and Cherie Blair reportedly saved £312,000 in stamp duty when they bought a London property from a company registered in the British Virgin Islands in 2017.

Then there’s London itself. The leaked documents show how the King of Jordan squirreled personal cash away in the capital’s property market, as did key allies of Imran Khan, Pakistan’s president.

More details will emerge in the coming days. But one thing is already clear. This isn’t a story about countries on the periphery of the world economy. It is a story about how the British state drives a global system in which the richest extract wealth from the rest.

British through and through

The British Virgin Islands were captured by England from the Dutch in 1672. By then, the indigenous population had already gone – either slaughtered in an unrecorded genocide or fled for fear of one. The islands have been a haven for pirates of various sorts ever since.

But this is just one part of Britain’s offshore network. There are around 18 legislatures across the globe that Westminster is ultimately responsible for. These include some of the worst offenders in the world of money laundering, tax dodging and financial secrecy. The Cayman Islands are British. So is Gibraltar. So are Anguilla and Bermuda.

These places aren’t just British in an abstract sense. Under the 2002 British Overseas Territories Act, their citizens are British citizens. They operate under the protection of the British diplomatic service. And, when need be, they can rely on Her Majesty’s Armed Forces: in the last 40 years, Britain has twice gone to war to defend Overseas Territories. Once was when Argentina tried to claim back the Falklands/Malvinas. The other time was the invasion of Iraq, when the British government claimed that Saddam Hussein’s weapons programme threatened its military bases at Akrotiri and Dhekelia on the island of Cyprus.

This complexity is no accident

In total, experts estimate, Britain and its overseas territories are responsible for facilitating around a third of the total tax dodged around the world. And that’s before we consider money stolen by corrupt rulers, or the proceeds of crime. Not to mention the way that billionaires’ hidden wealth allows them to influence our political systems in secret.

This complexity is no accident. The UK, unlike almost any other country on earth, lacks a written constitution. The rules about how the rules are made are set through ‘convention’, an endless fudge that ultimately amounts to them being made up by our rulers as they go along.

We see this most clearly in how the domestic territories of the British state are governed: Scotland, Wales, Northern Ireland, Greater London and the City of London each has its own arrangements, each absurd in its own way. Each of these messes leaves a different tangled thicket in which the crooks of the world can hide their cash.

Seen from the perspective of international capital, though, it is the Overseas Territories, as well as the Crown Dependencies of Jersey, Guernsey and Mann, which form the most significant part of this complex. They use the malleability of the British constitution to form a network of safes in which the rich can hide their cash.

A new era

Although no one knows for sure how much money is hidden in tax havens, of which the British territories make up a significant chunk, the figures involved are so vast that academics at the Transnational Institute in the Netherlands have described them as “the backbone of global capitalism”.

Seen this way, the constitutional flexibility of the British state isn’t just some post-medieval hangover. It’s a hyper-modern tool in an era of global surveillance capitalism, where the rich can flit around offshore while the rest are forever trapped by borders.

Through its empire, the British state played a key role in inventing modern capitalism. Now, the UK is helping reinvent capitalism once more, by extending the protection of a constitution designed by the powerful, for the powerful, to the billionaires, oligarchs and criminals of the world.

Adam Ramsay is openDemocracy’s main site editor. You can follow him at @adamramsay. Adam is a member of the Scottish Green Party, sits on the board of Voices for Scotland and advisory committees for the Economic Change Unit and the journal Soundings.

This article was  first published by Progressive International

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