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Brexit, Little Britain and the Empire Politics of the End

12 min read.

Why has the UK establishment so farcically mismanaged Brexit? The answer has eluded her politicians because it lies deep within a political system no longer fit for current purpose.

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Brexit, Little Britain and the Empire Politics of the End
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The decade-long death march of Western capitalism continues to reap yet more victims. The latest is the British political establishment and the remnants of the Empire that created it.

The problem for the key actors, dwarfed as they are by a venerable political system they inherited from the time of their great-great grandparents when it yielded exclusionary benefits, is their inability to grasp that Brexit, the current crisis with which it is grappling, does not signal a change. It is an ending. Misreading the situation, the said actors continue to dream up remedies and strategies based on the vain assumption that the economic crisis will somehow be resolved by political initiatives.

The lone survivor may well end up being Jeremy Corbyn, leader of the official opposition Labour Party, and then only because he never believed in the virtues of western capitalism to begin with. He sees his mission more in terms of how to cater to the needs of all capitalism’s damaged survivors.

The problem for the key actors, dwarfed as they are by a venerable political system they inherited from the time of their great-great grandparents when it yielded exclusionary benefits, is their inability to grasp that Brexit does not signal a change. It is an ending.

The vast majority of British people are not wealthy. They merely live within a rich economy that provides them access to credit. For at least 350 years, the British economy expanded through the ruthless exploitation of resources and people from many parts of the world. The big question then, as now, was: who benefits, and how?

In his 1964 book, The Sins of the Fathers, James Pope-Hennessey explains that:

“Shipbuilding in Liverpool was gloriously stimulated by the slave trade, and so was every other ancillary industry connected with ships…… People used to say that ‘several of the principal streets of Liverpool had been marked out by the chains, and the walls of the houses cemented by the blood of the African slaves.’ The Customs House sported carvings of Negroes’ heads…”

The most contentious question at the core of British politics has always been the question of the domestic distribution of the proceeds of that global trade.

In particular the history of the social democratic movement in the UK, which culminates in the formation in 1900 of the Labour Party, has been the history of developing more efficient ways of systematically redistributing Empire’s wealth as it comes in. These initiatives culminate in the establishment of the provision of mass housing (1935), education (1944) and health (1946) as a clear statutory requirement, after the 1939-1945 war, and the economic crisis that preceded it. These three policies alone immeasurably changed the quality of life for ordinary British people, and are now the site of the ideological battleground between the main parties, regarding how best to “fix” the country’s crisis.

For at least 350 years, the British economy expanded through the ruthless exploitation of resources and people from many parts of the world. The big question then, as now, was: who benefits, and how?

Since the failure to recover from the 2008 economic crash, politics seems to have become an exercise in which everyone questions the legitimacy and role of every other participant. Empire’s redistributive template is being challenged from all angles: ordinary citizens challenge the corporate world regarding the rates of tax it pays to keep public services running; the corporate world in turn challenges the logic of ordinary people continuing to expect that such services should be provided for free and on demand; indigenous people begin to question why immigrants have the right to move in and partake of such services; the provincial regions begin to question why major infrastructural development tends to be focused on the major urban centres, and so on.

The history of the social democratic movement in the UK, which culminates in the formation in 1900 of the Labour Party, has been the history of developing more efficient ways of systematically redistributing Empire’s wealth as it comes in.

The latest development in these establishment contestations is the resignation of seven MPs from the Labour Party, and declaring themselves “independent”. They were soon joined by an eighth Labour MP, and then by four members of the ruling Conservative Party. There is every indication that there will be more resignations from both parties; some of these MPs will likely join the new group. This attempted re-alignment of Britain’s 150-year-old effectively two-party system may amount to little in itself, but will in the long-term, prove to be hugely significant.

Empire’s redistributive template is being challenged from all angles: ordinary citizens challenge the corporate world regarding the rates of tax it pays to keep public services running; the corporate world in turn challenges the logic of ordinary people continuing to expect that such services should be provided for free and on demand; indigenous people begin to question why immigrants have the right to move in and partake of such services…

This is in fact a debate about the future, paralysed by the past.

Britain sidestepped an obligation to undertake a principled and genuine retreat from Empire. Such a retreat would have entailed a costly reckoning with history. Empire’s unravellng came with huge costs: there was the risk of being forced into making material reparations to the colonies and descendants of those enslaved in the Trans-Atlantic trade; downsizing and restructuring her global corporate reach would have meant a significant reduction in income; and weaning her domestic population off the proceeds of Empire’s profits could have led to sharp political disruptions. Instead, Britain embarked on a series of pretend “withdrawals” and resorted to all manner of skullduggery so as to maintain back-channel influence and continue profiteering.

By postponing this decision, Britain now faces a stark question: how does she retain her economic pre-eminence? Is it by cleaving unto an ever-tighter embrace with the European Union, or independently returning to her own stall in the global marketplace, which first gave her pre-eminence?

Britain sidestepped an obligation to undertake a principled and genuine retreat from Empire. Such a retreat would have entailed a costly reckoning with history.

This is the dilemma expressing itself as the Brexit crisis, essentially the failure by the entire political leadership to manage the consequences of the 2016 referendum, in which UK citizens — by a small margin, it should be noted — voted to end their country’s 45-year membership of the European Union.

That referendum itself only came about as a consequence of then UK Prime Minister David Cameron’s bungling attempts to end dissent in his ruling Conservative Party. He sought to outflank growing voices from the Tory right wing insistent that a new type of Conservative Party was necessary to make Britain “great” again, not least by severing its links with the European Union, which they characterized as the source of unwanted immigrants, and a drain on the UK’s “hard-earned” Empire wealth. Cameron, shocked by the unexpected referendum result, resigned immediately, leaving the problem to his successor, current PM Theresa May.

The referendum itself only came about as a consequence of then UK Prime Minister David Cameron’s bungling attempts to end dissent in his ruling Conservative Party. He sought to outflank growing voices from the Tory right wing insistent that a new type of Conservative Party was necessary to make Britain “great” again…

The referendum result has had an equally damaging impact on the opposition Labour Party, already adrift from its ideological moorings, following its many years in opposition after its 1979 defeat by the Conservatives under Margaret Thatcher. Originally, Labour was committed to the goals of a form of socialism: nationalisation of key sectors of the economy; widespread provision of social services and amenities as well as a safety net; and protection of workers’ rights to organize, assemble and agitate. Following a second defeat to Thatcher in 1983, a number of reformist party leaders like Neil Kinnock, began to reshape the party’s orientation while still in opposition. “Socialist” policies were progressively abandoned over the following decade and a half, as they became increasingly unsellable to the electorate, not least because of the pernicious influence of a corporate media hostile both to the Party and its policies, and the victory of Thatcherite neoliberalism as the dominant policy mantra across the political establishment. This paved the way for Tony Blair to emerge as a new type of Labour leader, and lead the reformed party — now freed of its previous ideological commitments and Trade Union obligations — back into power in 1997.

The referendum result has had an equally damaging impact on the opposition Labour Party, already adrift from its ideological moorings, following its many years in opposition after its 1979 defeat by the Conservatives under Margaret Thatcher.

Despite this, the ideological debate within Labour never completely ended. Many radicals blamed the party’s inability to recover quickly from the loss of the 1979 election on the narrow defeat of the radical Tony Wedgewood Benn in the deputy party leadership vote, in 1981. With the collapse of neoliberal economics after 2008, some of the old “socialist” ideas have experienced a resurgence. It is this that has brought current leader Jeremy Corbyn, a veteran of the futile 1980s battles to keep the party “socialist”, to the leadership. In fact, a number of the key actors in Corbyn’s camp — including Corbyn himself — were active pro-Tony Benn youth wingers back then.

Despite all those struggles, such “progressive” politics, directed from this “distributionist” framework never quite explained where the wealth to be distributed would come from, especially if Empire’s global resources were no longer available.

With the collapse of neoliberal economics after 2008, some of the old “socialist” ideas have experienced a popular resurgence. It is this revival that brought Jeremy Corbyn, a veteran of the futile 1980s battles to keep the party “socialist”, to Party leadership.

In a UK Guardian article of September 22, 2011, British Admiral Lord Alan West was quoted criticising proposed cuts to the UK defence budget:

“We are probably, depending on what figures you use, the fifth or sixth wealthiest nation in the world. We have the largest percentage of our GDP on exports … we run world shipping from the UK, we are the largest European investor in south Asia, south-east Asia [and] the Pacific Rim, so our money and our wealth depends on this global scene.”

This is why retaining a presence in the European Union is important to the UK establishment, which believes it would offset any contraction of the Empire economy as it tries to deliver on its redistributive “socialist” ideals. Even this may not work, as it is a strategy still premised, however indirectly, on the wealth generated by Empire.

Progressive politics, which operate from within this “distributionist” framework never quite explained where the wealth to be distributed would come from, especially if Empire’s global resources were no longer available.

Leaving or remaining in the European Union is therefore an argument represented by factions within each of the dominant political parties, not just the Conservatives. Whichever party finds itself in power in this period will simply implode, as is happening to the Conservative Party at the moment.

The central question, that is, the question concerning a long-term post-Empire economic strategy, goes back over 30 years, and has never been settled. It was only temporarily resolved by the rule of Margaret Thatcher. Faced with an EU demand then for greater economic integration against a growing domestic chorus to double-down and go it completely alone, the British, being British, attempted to do both. This left the UK with a somewhat hybridized EU membership. Unlike the rest of the Union for example, Britain kept her own currency.

Leaving or remaining in the European Union is therefore an argument represented by factions within each of the dominant political parties, not just the Conservatives. Whichever party finds itself in power in this period will simply implode.

Now the matter has returned to centre stage, not least due to the economic hardships bedevilling the EU’s 500 million citizens. The crisis has arrived at a time when politics in Britain is being managed by a generation of people dwarfed by their own legacy. Since at least the time of Gladstone in the 1860s, the British political system has been premised on managing the proceeds of an empire-based economy. The crisis therefore, goes to the heart of how British economics, and therefore politics, is constituted.

The end of Empire has been a prolonged period of discomfort, and left a wrong political fit. Those days, and the formations they spawned, are now over. The whole construct and edifice — the buildings, institutions, traditions, imperatives — are not fit for current purpose. So, the government system, which includes the official Opposition, is obsolete. Those were Empire-level political initiatives to keep the masses happy with their share of the spoils.

The current leaders on all sides seem incapable of understanding the full meaning of the weight of all that history, and so what is happening in the UK parliament is a splintering of the old order, but one which carries the misconceptions of that old order into the new.

In particular, Empire’s racial politics that played out in the colonies and was previously viewed with a certain metropolitan hauteur from London, became increasingly domesticated after decolonisation. At home, racial politics spawned a new lexicon, and new hitherto unfamiliar actors, both of which ended up in Empire’s parliament pursuing identity politics as a new dimension to the aforementioned politics of redistribution.

But real change will not come through thinking and speaking from the platform of Empire’s institutions. It cannot be re-ordered, or have its wrongs put right, from those pedestals.

The truth is that the 2016 referendum was not a decisive outcome. For a matter of that magnitude, a nearly 50/50 result cannot be said to be a clear “rejection” of anything. By the same token, neither can it be said to be an acceptance of the status quo.

The logical thing on paper would be to hold another referendum. However, given the polarized nature of the debate, as well as the real economic pain ordinary British people are experiencing, this would likely split both main parties internally. There is a strong suspicion that step three for the recently resigned MPs will be an attempt to create a new party, that would move to displace the current official opposition, in anticipation of the looming internal splits.

The truth is that the 2016 referendum was not a decisive outcome. For a matter of that magnitude, a nearly 50/50 result cannot be said to be a clear “rejection” of anything.

This, however, is to still miss the point.

What was important was the spread of the result. England, by far the most populous of the three national regions, voted most clearly to leave the EU. But again, this was outside the main urban concentrations (where a lot of non-indigenous minorities are to be found). While Wales voted alongside England, Scotland voted solidly to remain.

Instead of dealing with the implications of the result, all the other political factions appear strangely to have perceived their immediate task as being to prevent a Corbyn-led Labour Party from taking power. Corbyn espouses a fundamentally different agenda than the conventional mainstream: he wants a redistribution of the wealth of the country among a much wider demographic, through nationalization, and the massive expansion of social services. For Corbyn therefore, the issue of Brexit is secondary. He intends to pursue his programme regardless of whether Britain remains in the EU or not. But such economic plans are inimical to the now 40-year orthodoxy established by Margaret Thatcher, and injected into the Labour party by Neil Kinnock and Tony Blair.

Instead of dealing with the implications of the result, all the other political factions appear strangely to have perceived their immediate task as being to prevent a Corbyn-led Labour Party from taking power.

The fault line in this political quagmire is both factions of the Conservative Party, plus the Tony Blair remnants (and they are many) in the Labour party being on one ideological side, against Jeremy Corbyn’s faction of the party.

This will be a battle huge and distracting in equal measure.

First, it will keep British politics bogged down in a debate about the best distribution of Admiral West’s Empire proceeds, a lot of which is backstopped through the European Union’s “Economic Partnership Agreements” signed with much of the so-called “developing” world – that is, the old colonial world of Africa, the Caribbean, the Pacific and Asia. The EPAs are basically the modern form of the unfair trade treaties of the last five centuries. Their most disruptive feature was ‘conditionality’: the overweening donor influence on where and how ‘aid’ is spent, and a heavy focus on private sector participation in ‘development’.

On the domestic political front, the threat of Corbyn implementing his redistribution agenda after the UK exits the EU,, would profoundly disrupt established corporate interests.

Third, given the historical economic pressure created by the emergence of other global economic players, it is inevitable that the UK will see her share of the spoils progressively decline. The reality of this permanent decline will then be used to drag the likes of Corbyn into a jingoistic debate about British “greatness” (which, incidentally, is built on a fallacious premise: what right does the UK have to global pre-eminence, and how is that pre-eminence to be kept in place anyway?).

Many of the current round of EPAs (negotiated for twenty-year periods), are due to expire between 2020 and 2025. Would a Corbyn government design their renegotiation to better reflect the principles of fair trade, a condition of staying in the EU? If so, would the EU want the UK back as a member?

Being in the EU has failed to suppress the UK establishment’s nostalgic fantasies of the return of Empire. Understanding this is to recognise that the nature of Britain’s current politics has no answers for the future. To confront the future would first require a recognition that the global Empire economy, which the EU also feeds off of, must be restructured in favour of a global fair trade regime, whether the UK in all or in part remains inside the EU.

Whether within the EU or out of it, Britain remains the fifth richest country in the world due to a legacy of malfeasance. Britain’s current political order is being dismantled by the force of this legacy; the current leaders know neither how to maintain their global advantage, nor how to make an orderly withdrawal from it.

To confront the future would require a recognition that the global Empire economy, which the EU also feeds off of, must be restructured in favour of a global fair trade regime, whether the UK in all or in part remains inside the EU.

This essentially means that the 2016 referendum produced three or four outcomes, not one.

For the British people then to be able to speak, the creation of an ENGLISH parliament is imperative. This is a call that comes up from time to time, but is then ridiculed and silenced.

However, before England became “the first, and the most deeply penetrated of all the British colonies” to quote Oscar Wilde, England’s Kingdoms did often have their own parliaments, such as the Anglo-Saxon Witangemot that operated between the 7th and 11th centuries.

Only after this democratisation process can Britain have a meaningful referendum in which each region decides for itself and negotiates to stay or go independently of the others.

Whether Britain were to have become a full member of the EU, or to have completely broken away from it, a central truth remains: this is actually the end of an epoch. The unravelling of the UK’s political system is part of it.

Only after Britain democratises her politics can she have a meaningful referendum in which each region decides for itself and negotiates to stay or go independently of the others.

THIS is ending.

The world will go on.

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Kalundi Serumaga is a social and political commentator based in Kampala.

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