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Why I’m No Longer Talking to Kikuyus About Tribe

8 min read.

In many ways, Kikuyu privilege is akin to white or male privilege in that most Kikuyus are not even aware of it. Here in Kenya, argues RASNA WARAH some people have become so emotionally exhausted that they have stopped talking because a section of the populace are afraid to acknowledge that a problem exists – a problem that could be described as “Kikuyu privilege”, the result of decades of bad politics that emphasised ethnic identity.

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Sometime after the 2013 elections, I stopped talking to some of my Kikuyu friends and colleagues, not because of any declared hostility or altercation, but because of an unacknowledged silence that was beginning to characterise most of our conversations. Chats between them and me had become stilted and obscure, focusing on the mundane and trivial. I noticed that we tried hard not to use the K-word and avoided at all cost to discuss the election and its results. In fact, we steered away from politics altogether because any suggestion that Uhuru Kenyatta might not be fit to be the president of the Republic of Kenya, and that he and his deputy might actually have been involved in crimes against humanity, would lead to gasps of denial and revisionism – as if I was the problem because I was incapable of “accepting and moving on”.

Because we could no longer be honest with each other, we stopped communicating altogether. It seemed hypocritical and dishonest to pretend to be on the same page when we were clearly not. This situation was further reinforced in 2017 when Uhuru was declared president for the second time.

I was later to find out that I was not the only one experiencing this. Many of my friends, including progressive Kikuyus, had been losing their Kikuyu friends at an alarming rate.

It is a weird time to be a Kenyan. People are being forced to take sides and to even adopt new identities. Some people have begun asserting their Kikuyu identity by adding a Kikuyu name to their Christian one, or by demonstrating their filial ties to a Kikuyu in-law or spouse by hyphenating their names. It has become very important to have Kikuyu ties – even if you don’t speak the language and have no knowledge of Kikuyu culture and traditions. Having a Kikuyu connection is deemed to have its advantages in today’s Kenya. There is a perception that having the right connections will open up all kinds of opportunities, from jobs to tenders.

In her book, Why I’m No Longer Talking to White People About Race, the black British writer Reni Eddo-Lodge explains that she stopped having conversations about race with white people because most white people don’t even recognise that racism exists. “I cannot continue to emotionally exhaust myself trying to get this message across, while also toeing a very precarious line that tries not to implicate any one white person in their role in perpetuating structural racism, lest they character assassinate me,”she writes.

It is a weird time to be a Kenyan. People are being forced to take sides and to even adopt new identities. Some people have begun asserting their Kikuyu identity by adding a Kikuyu name to their Christian one, or by demonstrating their filial ties to a Kikuyu in-law or spouse by hyphenating their names

The title of Eddo-Lodge’s book is deliberately provocative – to look a problem in the eye and force people to deal with it. She says that white people often silence people of colour by pretending that the problem lies with the latter, and not with the former, or by accusing the non-white person of being overly sensitive about race. “They’ve never had to think about what it means, in power terms, to be white, so any time they’re vaguely reminded of this fact, they interpret it as an affront,” she says. “Their eyes glaze over in boredom or widen in indignation. Their mouths start twitching as they get defensive. Their throats open up as they try to interrupt, itching to talk over you but not really listen, because they need to let you know you’ve got it wrong.”

“I can no longer have this conversation, because we’re often coming at it from completely different places,” she adds. “Worse still is the white person who might be willing to entertain the possibility of said racism, but who thinks we enter this conversation as equals. We don’t.”

Here in Kenya, some of us have become so emotionally exhausted that we have stopped talking because some of us are afraid to acknowledge that a problem exists – a problem that could be described as “Kikuyu privilege”, the result of decades of bad politics that emphasised ethnic identity. So because privilege in this country is directly related to who is in power, for a long time, we also had what can be called “Kalenjin privilege”, which reasserted itself when William Ruto became Uhuru’s running mate and deputy. The current stand-off between Uhuru and Ruto can thus be interpreted as a battle for supremacy – Kikuyu privilege fighting Kalenjin privilege and vice versa.

Now all those who are not white know what white privilege looks like. It is like oxygen in the air – we cannot see it, but we know it is there. It is that taking-for-granted feeling among people who have never had to explain themselves to others and who have never had to seek permission to exist.

By privilege I do not necessarily mean wealth or opportunities, but a mindset that sets oneself apart from “the other” and treats one’s identity as the norm, and all those who deviate from it as different, not necessarily in an overtly racist Trump kind of way, but in a condescending, paternalistic manner. It is like when a white person asks you how you learnt how to play the piano so well, or when she marvels at the fact that you have a PhD. Or like when (as has happened to me several times), a white person asks if I still eat Indian food with my hands. (Of course I do, not all the time, but only when I dip a roti into a curry – a feat that would be impossible with a fork and knife.)

Now all those who are not white know what white privilege looks like. It is like oxygen in the air – we cannot see it, but we know it is there. It is that taking-for-granted feeling among people who have never had to explain themselves to others and who have never had to seek permission to exist

In many ways, Kikuyu privilege is akin to white or male privilege in that most Kikuyus are not even aware of it. So they might say things like, “I think he’s quite smart for a Pokot.” Or, “We Kikuyus, unlike those lazy people at the coast, work hard for our money.” Or they might point out that they have a lot of non-Kikuyu friends, just like the white liberal who will emphasise that “many of my friends are black”. (I use the word liberal here deliberately because unlike the rabid white right-wing racist, the white liberal assumes, falsely, that he does not enjoy privilege, and that even if he does, he works consciously to underplay it.) Like white privilege, Kikuyu privilege does not examine the structural and historical reasons for why one racial or ethnic group has an advantage over another, or whether subjugation of the “other” was how this privilege was acquired in the first place.

My critics will no doubt remind me that there are millions of Kikuyus in this country who are poor and who do not benefit financially or politically from their Kikuyuness. Indeed, as I have said so in many of my articles, poor Kikuyus got the short end of the stick at independence. Many were not only dispossessed of their land by former Kikuyu loyalists known as homeguards who went on to form the political elite after independence, but those who were relocated to the Rift Valley have suffered violence in virtually every election since the 1990s. And we must remember that it was a Kikuyu president, Mwai Kibaki, who oversaw the extrajudicial killing of hundreds of Mungiki members – children of the very Kikuyu people who were alienated from their land by the Jomo Kenyatta regime.

Kikuyu privilege, like white or male privilege, therefore, has little to do with wealth but everything to do with self-perception – and delusion. It is the reason why, despite having suffered at the hands of every regime in Kenya, poor and dispossessed Kikuyus continue to follow the philosophy of uthamaki, a belief that Kikuyus are – and should remain – the true and only rulers of this land known as Kenya. And that their ethnic group’s leaders must be the main beneficiaries of the country’s wealth. (Turned on its head, this philosophy was also adopted by the Kalenjin, who have sought power, wealth and privilege with equal determination.) They do not ask why this wealth does not trickle down to them, why they still remain poor.

My critics will no doubt remind me that there are millions of Kikuyus in this country who are poor and who do not benefit financially or politically from their Kikuyuness

For someone like me who belongs to a tiny ethnic minority in this country, the notion that ethnic identity affects one’s life chances is disconcerting to say the least. How can I, with my Indian name and heritage, compete with the largest tribe in Kenya? And because I did not marry into one of the larger tribes, I face an additional disadvantage. My husband’s mother belonged to a tribe known as Taveta, one of those small tribes that have been forgotten and that have been marginalised for so long that they are completely off the political and economic radar. His father was Malawian but since my husband never lived in that country, he identifies most with his Taveta roots. So adding his name to mine doesn’t help either. On the contrary, being a Kenyan Asian married to a small tribe man in Kenya with a foreign African father probably places me somewhere at the very bottom of the pecking order.

I am not saying that I did not inherit certain privileges on account of my race or class. I grew up in an urban middle class Asian family that did not struggle with money issues and which took many things for granted. We were not rich, but we were not poor either. My sex placed certain obstacles in my way – Indian culture denies women and girls many privileges, so I learnt at a very young age not to reach for the stars. Sheer stubbornness on my part dismantled some of these barriers and allowed me to pursue some of my goals.

But even as a child, I was aware that the playing field was not level for Asians. So, for instance, I could never aspire for a government job because those jobs were reserved for Africans. And in a society so deeply divided by race (thanks to the apartheid imposed by British colonialism and white settlers that lingered on after independence), it was difficult for me to make a case for why I deserved to be treated equally. Kenyan Asians enjoyed status and benefits under colonialism that their African brethren were denied – a “divide and rule” colonial tactic that kept the races physically, socially and economically apart.

By privilege I do not necessarily mean wealth or opportunities, but a mindset that sets oneself apart from “the other” and treats one’s identity as the norm, and all those who deviate from it as different, not necessarily in an overtly racist Trump kind of way, but in a condescending, paternalistic manner

When I moved to the coast a few years ago, I also became aware of what I can only describe as my “Nairobi privilege” – a misguided belief held by middle class Nairobians such as myself that Nairobi is Kenya, even though Nairobians make up only ten per cent of the country’s population. It is a privilege that assumes that Nairobi is the norm and whatever happens outside its borders is just tourism. Here I saw what marginalisation does to a people. It lowers expectations. People expect less, so they demand less as well. The “Pwani si Kenya” movement was a response to this marginalisation, but that too was crushed.

How can Kikuyu privilege or any other kind of privilege be addressed? The tendency normally is to pass the buck of “awareness raising” on those who do not enjoy these privileges. Black people in the UK, for instance, will be invited to talk about their experiences to white audiences, or to become champions of anti-racist advocacy groups. Muslims and other minorities in the United States will be invited to speak about the discrimination they face. (In Kenya, we don’t even bother with such awareness-raising; we just accept and move on.)

Yet the onus really should lie with the ones having the privilege. They themselves must ensure that not every board member in a parastatal or corporation is a Kikuyu or from just one ethnic group. They must demand that key positions in government be shared in a fair manner among all ethnic groups. They must sensitise their own people about the dangers of uthamaki and other myopic ideologies.

A friend commented that he was surprised that every panelist at a talk he recently attended was a Kikuyu, and he wondered why the organisers of the event had not made more of an effort to make the panel more inclusive of other ethnic groups. My response was that they were probably not even aware of the ethnic composition of the panel because that’s how privilege works – it is invisible to the owner of the privilege but completely obvious to others.

If we are to move forward, we must have a frank and honest discussion about tribalism, and what it has done to us as a society. We – not just Kikuyus but every ethnic group and race in Kenya – must know and acknowledge our individual privileges, and then dissect them for all to see. Only then can we begin having an honest conversation with each other.

Checking my Kikuyu Privilege in the Face of Racism – A TED Talk by Maria Mutitu at TEDxWoosongUniversity

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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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