The gruesome rape and murder of a 26-year-old vet in the Indian city of Hyderabad has once again highlighted the issues of women’s safety in urban areas and the rape culture that allows these kinds of heinous acts to take place. The woman was gang-raped by four men who approached her on the pretext of fixing a flat tyre on her scooter. When they had finished raping her, they doused her body with petrol and set it alight. Her charred body was found in a highway underpass.
Women’s rights activists have once again taken to the streets as they did in 2012 when another brutal gang rape led to the death of a female student in New Delhi. The rape of Jyoti Singh, the paramedic student who was repeatedly tortured and thrown out of a moving bus by her tormentors, galvanised India. Vigils and protest marches were held in her name. “Nirbhaya” (Fearless) – the name that was given to her as she struggled to stay alive in hospital – remains a symbol of women’s resistance in the face of misogyny.
But seven years after that horrific incident, rape statistics in India remain as high as ever; about one hundred women and girls are raped in India every single day. Most of the perpetrators never face justice.
In Jyoti Singh’s case, the trial of the perpetrators was fast-tracked because of the public outcry, and stricter laws were passed to deter rapists. The immense shame suffered by the families of the accused even caused one of the rapists to commit suicide while in prison. But that case has clearly had little impact on the Indian male psyche, which is apparently wired to view every woman as a potential target for rape and other forms of violence. This in a country where female Hindu goddesses like Durga, Kali, and Saraswati are worshipped.
However, like all organised religions, Hinduism has a contradictory view of women. The Madonna-Whore dichotomy, which worships “pure, virginal” women, on the one hand, and diminishes those considered “impure”, on the other, is very much prevalent. Hindu mythology is rife with stories of women being “punished” for disobeying their male family members or for straying out of the home.
In the epic Ramayana, Sita, the wife of Lord Ram who is revered for her self-sacrifice and purity, is abducted by the demon Ravan after she crosses an invisible line outside her dwelling, thus breaking a promise she made to her brother-in-law Lakshman to not venture outside her homestead. (The message is clear: women leave their homes at their peril, and like Eve who ate an apple in the Garden of Eden despite having been warned against it, there is a price women have to pay for disobeying an order.) Sita’s kidnapping and eventual return to her husband’s kingdom (where she undergoes a trial by fire – agni pariksha – to prove her chastity) is one of the central themes surrounding the Hindu festival of Diwali.
The rape and murder of Jyoti Singh led to a lot of soul-searching, particularly among India’s elite and middle classes, who have tended to view violence against women as a problem mainly afflicting the lower uneducated classes. Soutik Biswas, the BBC’s Delhi correspondent, was among those who viewed gender-based violence as being common among the less privileged sections of the population, particularly in northern India, a region which he said harbours “a stiflingly patriarchal social mindset”.
He also blamed Delhi’s “deracinated generation of migrants” and a “broken justice system” for the rising incidence of rapes in the capital city. Biswas was referring to the hordes of unskilled migrants moving to New Delhi from neighbouring – largely agricultural – states, such as Haryana, where “honour killings” are known to take place.
What Biswas failed to recognise is that domestic violence is prevalent even among the rich and that this form of violence remains hidden because women are made to believe that a family’s honour will be damaged if a woman speaks about the violence she endures at the hands of her husband or another family member. However, thankfully, more and more women in India are now speaking more openly about the physical abuse they suffer at home – but this has not deterred men from inflicting the violence.
Statistics show that nearly 40 per cent of Indian women have experienced some form of domestic violence. Many of these women are middle class professionals, such as journalist Nita Bhalla, who recounted her own abuse at the hands of her husband in an article published on BBC News. Bhalla said that Indians’ high tolerance for violence against women makes it difficult for victims to get justice. “When he pulled my hair and kicked me as I lay on the pavement, there was a deafening silence from my neighbours who heard my screams but were reluctant to intervene,” she wrote.
Bhalla says that modern educated women are particularly threatening to Indian males, who lash out at these women because of their own insecurities. Men’s loss of power and control over women has made professional women particularly vulnerable, especially in male-dominated work environments and in public spaces. Sexual harassment and rape are men’s responses to this loss of power and control.
I also see a direct correlation between Indian men’s consumption of pornography and the rising cases of rape in India. According to Pornhub’s own data, Indians are the largest consumers of online pornography after the United States, the United Kingdom and Canada (in that order). Pornography desensitises men and boys and makes them believe that violence against women, including rape, is normal and even a secret fantasy that women harbour.
A sense of entitlement
In highly patriarchal societies, men tend to view women as their personal property. This sense of entitlement fosters the commodification of women and girls. Girls are viewed as an economic burden whose only value lies in their labour and in their ability to produce sons. That is why the burning of brides for dowry was until recently fairly common in India, as was female infanticide.
Men’s loss of power and control over women has made professional women particularly vulnerable, especially in male-dominated work environments and in public spaces
Some say that Bollywood’s portrayal of women as sex objects has only made things worse for Indian women. It is hard to find strong female characters who are economically independent and not dependent on male approval. While some films have tackled the issue of rape, and female directors are making more women-centric films, the commercially successful movies tend to be those that revolve around a male protagonist, with the female protagonist relegated to the role of “love interest”.
Narendra Modi’s India has not made Indian women safer either. On the contrary, it could be argued that the right-wing exclusionary politics espoused by Modi has made life for minorities, including women, more difficult. Modi has not vociferously condemned the killing of Muslims in India by Hindu fanatics so, despite having a large female following, it is unlikely that he will take a strong stand against violence against women. Right-wing groups tend to be hostile to women’s and minorities’ rights, and so we can expect little in terms of progressive, gender-friendly policies from his government.
The rape and murder of the vet in Hyderabad last month is not just a tragedy for the victim’s family but is also deeply embarrassing for the Indian government, which has superpower ambitions. Economic growth and liberalisation may have lifted millions out of poverty, but they have clearly not had a significant impact on the status of women in Indian society. This needs to change. A society may be economically successful, but its success will be meaningless if half of its population lives in fear.
Pornography desensitises men and boys and makes them believe that violence against women, including rape, is normal and even a secret fantasy that women harbour
Economic success has also not assured the safety of women in countries such as Kenya, South Africa and the United States – where incidences of rape are particularly high. In recent years, there have also been increasing cases of Kenyan men murdering women who have rebuffed their sexual advances. Young university students are particularly vulnerable. The alarming rise in the number of such cases has led a group of Kenyan women to document these cases, lest we forget. But documentation is not enough. The long and complicated legal process, and a woman-unfriendly police force, have made prosecution cumbersome. Poorly-lit streets and female-unfriendly public transport also make urban living for women particularly harrowing.
Claiming public spaces
Since Jyoti Singh’s death, women’s movements that are claiming public spaces have sprung up in India. In Mumbai a group of women have formed the “Why Loiter” movement, which encourages women to just “loiter” in public spaces after dark – in effect to claim spaces that have been denied them by a culture that says a woman’s place is in the home. The movement’s advocates argue that, in fact, the home is the most dangerous place for women who experience domestic violence at the hands of their own family members. They also say that by claiming public spaces, they are asserting their right to the city and defying those who want to see women’s mobility curtailed.
While it is difficult to completely stamp out misogyny in highly patriarchal societies such as India, many urban planners are coming to the realisation that gender-sensitive urban planning and design can deter potential rapists and sexual harassers. There is now increasing awareness of the fact that violence – or the threat of it – has severely hindered women’s movement in cities in most parts of the world. Impractical zoning laws, inflexible public transport routes, lack of childcare facilities and poorly-lit public spaces have made cities dangerous places for women.
According to studies done by the United Nations Human Settlements Programme (UN-Habitat) and NGOs working towards women’s safety in public spaces, there are four main reasons why women experience cities as hostile environments. First, zoning laws are woman-unfriendly and do not recognise that women need to balance their income-earning and domestic activities. If zoning laws allowed women to work from or near their homes, women would not spend so much time commuting and would also be able to take care of their families while earning an income. Second, lack of services, such as childcare at work, further limits women’s economic and public life. Third, poor infrastructure, particularly insufficient lighting on streets and in public spaces like bus stops and train stations makes walking at night a challenging prospect for women. Lack of clean and safe public toilets also impedes women’s and girls’ mobility. Fourth, public transport itineraries that are not sensitive to women’s needs – not having enough stops on a route for instance – means women have to walk longer distances to get to their destination.
We may not be able to change the mindset of men who rape, but there are certain things cities can do to make them safer for women. One way is to keep men away from women through segregation. “Ladies’ compartments” – women-only carriages on long-distance trains and suburban commuter trains – are common across India. Women prefer to use these services because they significantly reduce the chances of sexual harassment – a phenomenon locally known as “eve teasing”, which is rampant across India. (Women and girls using buses in Indian cities regularly report being groped by male passengers.)
In response to the epidemic of sexual violence on city streets, a group of women developed an app that allows users to rate their streets for safety using criteria such as lighting, people density, security and transport. In short, Indian women are taking charge of their public spaces by sharing information that can keep them safe.
Impractical zoning laws, inflexible public transport routes, lack of childcare facilities and poorly-lit public spaces have made cities dangerous places for women
In one village in the state of Uttar Pradesh, women have formed a “gang” that punishes men who beat their wives or behave badly. The Green Gang – named after the green saris that gang members wear – represents a rising wave of women taking the law into their own hands in the face of poor policing and lack of law enforcement.
The challenge in cities is to encourage urban planners to design spaces that are women-friendly. As Anne Michaud, President of Femmes et Villes in Canada put it, a woman-friendly city not only has social benefits, but economic benefits as well. “If women feel safe, they will go out at night, they will patronize the theatre, the movie houses, the business establishments,” she stated. All this means that more money will circulate within the economy.
Smart urban planners would do well to ensure that women participate in the 24-hour urban economy without fear of being molested or raped. Who would want to live in a city where there is a constant fear of one’s wife or daughter being attacked?
I am a 100 per cent sure that if cities were woman-friendly, urban living would be a joyful and productive experience for every city resident, including men. Using public spaces without fear should not be a male privilege; it should be a woman’s right.
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Unlike the Rest of the UN, Is WHO (Finally) Taking Sexual Abuse Seriously?
A disturbing report on the sexual exploitation and abuse of women and children in the DRC has laid bare the failure of UN agencies to protect vulnerable populations.
It is extremely unfortunate that at a time when the World Health Organization (WHO) is spearheading a campaign to get people vaccinated against COVID-19, and pushing rich countries to donate their vaccines to low-income countries instead of hoarding them, it is confronted with revelations that suggest deep systemic failures within the global health agency that have allowed its employees to get away with sexual exploitation and abuse of vulnerable populations.
Last month, WHO released a report that confirmed that there was sexual abuse of women and children by WHO employees in the Democratic Republic of the Congo (DRC) during an outbreak of Ebola in the country’s North Kivu and Ituri provinces between 2018 and 2020. This report was the result of an independent commission’s investigations following an exclusive media report last year that found that dozens of women in the DRC had been sexually exploited by aid workers, including WHO employees. The most disturbing revelation was that some of the perpetrators were medical doctors. Many of the abused women were offered jobs in exchange for sex; others were raped or coerced into having sex against their will. There were also stories of women being forced to have abortions after they were sexually abused. The independent commission stated that its findings showed that 21 of the 83 alleged perpetrators were WHO employees, and that “individual negligence” on the part of WHO staff may have amounted to “professional misconduct”.
This is not the first time that sexual abuse and exploitation of women and children by UN employees has been reported in the DRC. In 2004, UN Secretary-General Kofi Annan ordered an investigation into sexual abuses by UN peacekeepers in the country after it became apparent that such abuse was widespread in this mineral-rich but conflict-ridden country. The investigation detailed various forms of abuse, including trading sex for money and food. It was in the DRC that the term “peacekeeper babies” first emerged. Women who had given birth after being raped by UN peacekeepers spoke about being abandoned by both their families and the peacekeepers who had impregnated them. However, the report had little impact on the UN’s peacekeeping mission in the DRC – none of the perpetrators were brought to book nor were the victims compensated.
Sexual abuse of vulnerable populations, especially women and children, is particularly rampant in UN peacekeeping missions. In 2017, the Associated Press revealed in an exclusive report that at least 134 Sri Lankan UN peacekeepers had exploited nine Haitian children in a sex ring from 2004 to 2007. Many of the victims were offered food or money after they were sexually violated. (These “sex-for-food” arrangements have also been reported in other countries experiencing conflict or disaster.) Although 114 of these peacekeepers were sent home after the report came out, none of them were prosecuted or court-martialled in their countries.
One reason why UN peacekeepers evade the consequences of their actions is that under the Status of Forces Agreement negotiated between the UN and troop-producing countries, UN peacekeepers fall under the exclusive jurisdiction of the country they come from. When cases of abuse are reported, they are either ignored by the countries, or the perpetrators are sent home—no questions asked.
Unfortunately, civilian UN staff who commit crimes such as rape also evade any legal action because the UN accords the UN and its employees immunity from prosecution. This immunity can only be waived by the UN Secretary-General, but the Secretary-General hardly ever waives this immunity even when there is overwhelming evidence against a UN staff member. This means that cases brought against UN employees cannot be tried in national courts, nor can the perpetrators be detained or arrested by national law enforcement agencies.
At a press conference held last month, WHO’s director-general, Tedros Adhanom Ghebreyesus, apologised to the victims of the abuse in the DRC at the hands of WHO employees and promised to take action to prevent such abuse from happening again. “I am sorry for what was done to you,” he said. “What happened to you should not happen to anyone.”
The head of WHO has also promised to review the organisation’s emergency response measures and internal structures and to discipline those staff members who fail to report cases of sexual exploitation and abuse. WHO member states have also called for an “immediate, thorough and detailed assessment of what went wrong”.
I have no doubt that Mr Ghebreyesus is serious about fixing a problem that has plagued the UN for decades. In fact, his response to the sexual abuse allegations is much more honest and sincere than the responses of other heads of UN agencies whose employees have been accused of allowing sexual exploitation and abuse to occur under their watch. One, he established an independent commission to look into the sexual abuse allegations, which rarely happens. (Most UN agencies either ignore the allegations or order an internal investigation, which invariably determines that the allegations “could not be substantiated”.) Two, he has publicly committed to undertake wholesale reforms in WHO’s structures and culture that allow sexual exploitation and abuse of vulnerable populations to go undetected, unreported and unpunished. Three, he has agreed to the independent commission’s recommendation that an independent monitoring group be set up within two months to ensure that the commission’s recommendations are enforced.
“What happened to you should not happen to anyone.”
Most UN agencies would not welcome such intense scrutiny of their operations by independent bodies, so WHO’s efforts in this regard are laudable. WHO’s actions could also be attributed to the fact that, unlike other UN agencies that report to the General Assembly, WHO reports to the World Health Assembly that comprises delegates that have technical competence in health matters and represent their governments’ ministries of health. Because it is a specialised UN agency not governed by the General Assembly, WHO can establish its own rules without deferring to the General Assembly. In this sense, WHO enjoys relative autonomy from the UN system’s gargantuan and highly opaque bureaucracy.
Cover-ups and impunity
WHO’s response is a far cry from the normal tendency of UN bosses to cover up cases of sexual abuse and exploitation taking place under the UN’s watch. In 2014, for instance, when a senior UN official reported to the French government that French peacekeepers operating in the Central African Republic were sexually abusing boys as young as eight years old, his bosses at the Office of the UN High Commissioner for Human Rights (OHCHR) responded by asking him to resign. When he refused to do so, they suspended him for “unauthorized disclosure of confidential information”, and, in a typical case of “shooting the messenger”, they directed their internal investigations towards him rather than towards the peacekeepers who had allegedly abused the children. This case, which received wide media coverage, did not lead to significant changes in how the UN handles sexual abuse cases. On the contrary, Anders Kompass, the UN official who reported the abuse, was retaliated against, and eventually left the organisation in frustration.
Cases of UN employees sexually abusing or harassing their colleagues are also brushed under the carpet. In 2018, for example, when an Indian women’s rights activist accused the United Nations Population Fund (UNFPA)’s India representative of sexual harassment, the UN agency said that its preliminary investigations showed that her allegations could not be substantiated. The Code Blue Campaign, which tracks instances of sexual harassment and exploitation by UN employees, dismissed the findings of the investigation, calling them a “cover-up.” (Soon after the activist made her allegation, UNFPA evacuated the accused from India, which further muddied her case.)
This is not an isolated case. In 2004, when a staff member at the UN’s refugee agency accused the head of the organisation of sexual harassment, the UN Secretary-General, Kofi Annan, dismissed her claims. Recently, a woman working at UNAIDS lost her job soon after she filed a complaint of sexual harassment against UNAIDS’ deputy executive director. This was after Michel Sidibé, the then head of UNAIDS, told a staff meeting that people who complain about how the agency was handling sexual harassment “don’t have ethics.”
The UN’s highly patriarchal and misogynistic culture allows such abuse to continue unabated. In 2018, the UN conducted an internal survey that found that one-third of the UN employees surveyed had experienced sexual harassment. It revealed that the most vulnerable targets were women and transgender personnel aged between 25 and 44. Two out of three harassers were male and only one out of every three employees who were harassed took any action against the perpetrator. About one in ten women reported being touched inappropriately; a similar number said they had witnessed crude sexual gestures.
Another survey by the UN Staff Union found that sexual harassment was one among many abuses of authority that take place at the UN. Results of the survey showed that sexual harassment made up about 16 per cent of all forms of harassment. Forty-four per cent said that they had experienced abuse of authority; of these, 87 per cent said that the person who had abused his or her authority was a supervisor. Twenty per cent felt that they had experienced retaliation after reporting the misconduct.
The UN’s highly patriarchal and misogynistic culture allows such abuse to continue unabated.
Since then, the UN has established a new sexual harassment policy and a hot line for victims of sexual harassment. However, remedial actions spelled out in the policy appear to be mediation or counselling exercises rather than disciplinary ones. The emphasis is on psychosocial support and counselling (for the victims, of course) and “facilitated discussions” between the “offender” and the “affected individual”. Disciplinary measures include physical separation of the offender from the victim, reassignment, and temporary changes in reporting lines. Official internal investigations are permitted, but as I have tried to illustrate, most internal UN investigations into cases of sexual harassment and other kinds of wrongdoing inevitably conclude that the sexual harassment or wrongdoing “could not be substantiated.” This leaves victims vulnerable to retaliation.
Perhaps WHO can lead the way in showing the rest of the UN system how to tackle sexual exploitation, abuse and harassment by UN employees. WHO has already terminated the contracts of four of its employees who were accused of sexually exploiting women in the DRC. However, a true test of WHO and the UN’s commitment to end such abuses would be if they reinstated all those who were fired for reporting such cases. I for one am eagerly awaiting the independent monitoring group’s findings on whether or not WHO has taken tangible and impactful measures to protect people from being sexually abused and exploited by its employees and to safeguard the jobs of those who report such abuses.
The Retrospective Application of Constitutional Statutes: Notes From the High Court of Kenya
Katiba Institute adds to the growing comparative discussion around constitutional statutes and therefore ought to be keenly studied by students of comparative constitutional law.
Previously, I have discussed the concept of constitutional statutes. Recall that a constitutional statute is a law that is “enacted in pursuance of the State’s positive obligation to fulfil a constitutional right.” While certain constitutional rights are self-enforcing (such as, for example, the right to free speech ipso facto prohibits the State from engaging in arbitrary censorship), others – by their very nature – require a statutory framework to be made effective. For example, the right to vote cannot be made effective without an infrastructure in place to conduct free and fair elections, including the existence of an independent, non-partisan Election Commission. Insofar as such a legislative framework is not in existence, the state is arguably in breach of its positive obligations to fulfil the right in question. Thus, to refine the definition further, a constitutional statute is a statute that “provides a statutory framework towards implementing a fundamental right, thereby fulfilling the state’s positive obligation to do so.”
What follows from the finding that a particular law is a constitutional statute? On this blog, we have discussed constitutional statutes in the context of amendments to the Right to Information Act, which have sought to undermine the independence of the Information Commissioners. We have argued that, insofar as constitutional statutes stand between the individual and the State, mediating the effective enforcement of rights, legislative amendments that prevent them from fulfilling this function, are thereby unconstitutional. Furthermore, once a constitutional statute has been enacted, the principle of non-retrogression applies – that is, the legislature cannot simply repeal the law and go back to a position where the right in question was unprotected. Another example discussed on this blog is the recent judgment of the Kenyan Court of Appeal in David Ndii, where it was held that the implementation of the Popular Initiative to amend the Kenyan Constitution required a legislative scheme, as also its discussion of the previous judgment in Katiba Institute, where an attempt to reduce the quorum for resolutions of the Independent Electoral and Boundaries Commission was held to be unconstitutional.
The judgment of the High Court of Kenya of 14 October 2021 – also titled Katiba Institute – provides an additional, fascinating implication that flows from the finding that a law is a constitutional statute. Katiba Institute arose out of the efforts of the Government of Kenya to implement a national biometric identification system called NIIMS, and the judgment of the High Court with respect to a challenge to the constitutionality of NIIMS (Nubian Rights Forum), which we discussed on this blog back in 2019. Recall that in Nubian Rights Forum, after a detailed analysis, the High Court struck down a part of NIIMS, and allowed the government to go ahead with the rest of the programme subject to the implementation of an effective data protection law. Therefore, as I had noted in that post:
The High Court’s decision – at least in part – is a conditional one, where the (legal) future of the NIIMS is expressly made dependant on what action the government will take. Thus, there remain a significant number of issues that remain open for (inevitable) litigation, even after the High Court’s judgment.
Notably, Kenya had enacted a data protection law in between the hearings and the judgment, but the High Court – in its verdict – was insistent that until the point of effective implementation, the continued rollout of NIIMS could not go on. And this was at the heart of the challenge in Katiba Institute: the applicant argued that NIIMS had been rolled out, in particular, without complying with Section 31 of the Kenyan Data Protection Act, which required a Data Impact Assessment as a pre-requisite to any data collection enterprise. In response, the state argued that the data collection in question had already been completed before the passage of the Data Protection Act, and that therefore – in accordance with the general principle that statutes are not meant to apply retrospectively – Section 31 was inapplicable to this case.
Engaging in impeccable constitutional statute analysis, Justice Jairus Ngaah noted that the Data Protection Act was “enacted against the backdrop of Article 31 of the Constitution.” Article 31 of the Constitution of Kenya 2010 guarantees the right to privacy. As the learned Justice noted, in its very preamble, the DPA stated that its purpose was to “give effect to Articles 31(c) and (d) of the Constitution.” Justice Ngaah then rightly observed, “The need to protect the constitutional right to privacy did not arise with the enactment of the Data Protection Act; the right accrued from the moment the Constitution was promulgated.”
The judgment of the High Court of Kenya provides an additional, fascinating implication that flows from the finding that a law is a constitutional statute.
It therefore followed that, on the balance, an interpretation that gave the DPA retrospective effect was to be preferred over one that did not. A contrary interpretation would mean that the state was entitled to collect data and infringe the right to privacy even in the absence of a legislative scheme. Or, in other words, having failed to implement its positive obligation to enact a constitutional statute to give effect to the right to privacy, the state could then take advantage of its own failure by nonetheless engaging in data collection enterprises anyway. This, naturally, could not be countenanced. And in any event, given that Article 31 had always existed, it followed that:
. . . there was always the duty on the part of the State to ensure that the Bill of Rights . . . is respected and protected. Section 31 of the Act does not impose any more obligation or duty on the state than that which the state, or the respondents . . . have hitherto had to bear.
On this basis, Justice Ngaah therefore held that NIIMS had been rolled out in breach of Section 31, and therefore, first, quashed the rollout itself, and secondly, issued a mandamus restraining the State from rolling it out again without first complying with Section 31.*
The judgment in Katiba Institute does not, of course, answer the number of questions that still remained to be resolved after the Nubian Rights Forum judgment, including some problematic aspects of the DPA itself. Those questions were not, however, before the court in this instance; on the other hand, the court’s finding that constitutional statutes apply retrospectively – and the reasons for that finding – make it a landmark judgment. Katiba Institute adds to the growing comparative discussion around constitutional statutes, Fourth Branch bodies, and “Guarantor Institutions”, and therefore ought to be keenly studied by students of comparative constitutional law.
* One cannot, of course, help comparing this with the judgment of the Indian Supreme Court in the Aadhaar case, where despite the fact that Aadhaar data was collected for more than five years without any law whatsoever, it was retrospectively validated by the Supreme Court.
The Pandora Papers Reveal the Dark Underbelly of the United Kingdom
Through its network of tax havens, the UK is the fulcrum of a system that benefits the rich and powerful.
There’s the role, for instance, played by the British Virgin Islands, an overseas territory of the UK that functions as a tax haven. Czechia’s multimillionaire prime minister used the territory to hide his ownership of a chateau in France. Others, including the family of Kenyan president Uhuru Kenyatta and Vladimir Putin’s PR man, have made similar use of the islands to conceal wealth – while Tony and Cherie Blair reportedly saved £312,000 in stamp duty when they bought a London property from a company registered in the British Virgin Islands in 2017.
Then there’s London itself. The leaked documents show how the King of Jordan squirreled personal cash away in the capital’s property market, as did key allies of Imran Khan, Pakistan’s president.
More details will emerge in the coming days. But one thing is already clear. This isn’t a story about countries on the periphery of the world economy. It is a story about how the British state drives a global system in which the richest extract wealth from the rest.
British through and through
The British Virgin Islands were captured by England from the Dutch in 1672. By then, the indigenous population had already gone – either slaughtered in an unrecorded genocide or fled for fear of one. The islands have been a haven for pirates of various sorts ever since.
But this is just one part of Britain’s offshore network. There are around 18 legislatures across the globe that Westminster is ultimately responsible for. These include some of the worst offenders in the world of money laundering, tax dodging and financial secrecy. The Cayman Islands are British. So is Gibraltar. So are Anguilla and Bermuda.
These places aren’t just British in an abstract sense. Under the 2002 British Overseas Territories Act, their citizens are British citizens. They operate under the protection of the British diplomatic service. And, when need be, they can rely on Her Majesty’s Armed Forces: in the last 40 years, Britain has twice gone to war to defend Overseas Territories. Once was when Argentina tried to claim back the Falklands/Malvinas. The other time was the invasion of Iraq, when the British government claimed that Saddam Hussein’s weapons programme threatened its military bases at Akrotiri and Dhekelia on the island of Cyprus.
This complexity is no accident
In total, experts estimate, Britain and its overseas territories are responsible for facilitating around a third of the total tax dodged around the world. And that’s before we consider money stolen by corrupt rulers, or the proceeds of crime. Not to mention the way that billionaires’ hidden wealth allows them to influence our political systems in secret.
This complexity is no accident. The UK, unlike almost any other country on earth, lacks a written constitution. The rules about how the rules are made are set through ‘convention’, an endless fudge that ultimately amounts to them being made up by our rulers as they go along.
We see this most clearly in how the domestic territories of the British state are governed: Scotland, Wales, Northern Ireland, Greater London and the City of London each has its own arrangements, each absurd in its own way. Each of these messes leaves a different tangled thicket in which the crooks of the world can hide their cash.
Seen from the perspective of international capital, though, it is the Overseas Territories, as well as the Crown Dependencies of Jersey, Guernsey and Mann, which form the most significant part of this complex. They use the malleability of the British constitution to form a network of safes in which the rich can hide their cash.
A new era
Although no one knows for sure how much money is hidden in tax havens, of which the British territories make up a significant chunk, the figures involved are so vast that academics at the Transnational Institute in the Netherlands have described them as “the backbone of global capitalism”.
Seen this way, the constitutional flexibility of the British state isn’t just some post-medieval hangover. It’s a hyper-modern tool in an era of global surveillance capitalism, where the rich can flit around offshore while the rest are forever trapped by borders.
Through its empire, the British state played a key role in inventing modern capitalism. Now, the UK is helping reinvent capitalism once more, by extending the protection of a constitution designed by the powerful, for the powerful, to the billionaires, oligarchs and criminals of the world.
Adam Ramsay is openDemocracy’s main site editor. You can follow him at @adamramsay. Adam is a member of the Scottish Green Party, sits on the board of Voices for Scotland and advisory committees for the Economic Change Unit and the journal Soundings.
This article was first published by Progressive International
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