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Remembering Thandika, Africa’s Foremost Social Scientist

8 min read.

KARUTI KANYINGA pays tribute to his friend and mentor, Thandika Mkandawire, who left an indelible mark on scholarship focusing on Africa’s growth and development.

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On March 27, 2020, around mid-morning, my friend Said Adejumobi informed me of the passing of our friend Thandika Mkandawire. I received the news with shock and called my friend Said back to ask him to clarify what he had told me. Both of us remained quiet on phone for some time. We did not seem to believe what we were discussing. Our personal emotions did not allow us to say much.

But immediately after our short and mumbling conversation, I decided to call Bayo Olukoshi in Addis. I thought he would be emotionally stronger to brief me. It was the same on his end too. Involuntarily, I sat down to read the messages that Thandika and I had exchanged in December 2019 and early in January 2020. I turned attention to the selfies we had taken on 9 December 2019 in Nairobi, over, first, several cups of tea, and later, several Tusker beers (for him) and red wine (for me), which he helped select.

Love of data and objectivity

Several reasons made me counter-check the sad news about Thandika’s death. We had been friends since the 1990s. In my interactions with him, I learned the need to check and counter-check data and information irrespective of the source. Thandika was one person whose dexterity with data remain unparalleled. He did not believe in using data without verifying its objectivity, as well as the manner in which the date was assembled. He could literally “torture” data to speak the truth by comparing different sets and sources. Triangulation – if you may – was a major issue of concern to him. This is what I learned from him, especially at the time of finalising my PhD studies at Copenhagen’s Centre for Development Research (CDR), where he came for a research fellowship around 1998.

The second reason for counter-checking the sad news about Thandika was personal. At midnight of 23 November 2019, at exactly 00:08, I received a message from Thandika. The message read: “Are you in Nairobi the first 12 days of December?” I immediately replied and said: “Hi Prof: Yes, I will be; let us keep in touch!” This was the usual way we communicated for a number of years, especially when he joined the London School of Economics. He would send students for field work to Kenya. Before doing so, he would send me a message asking whether I am around. He would then let me know that a student would be coming to see me. And the students he sent to speak to me or seek advice were the type you would love to have around for long. They were brilliant and schooled in “torturing data”, Thandika style.

Our meeting in December 2019 was also special in a way. We met on 9 December. He asked me where we could meet in the Westlands part of Nairobi and I could not immediately pick a place. I knew he had been unwell, and I was not sure whether I should take him where we could have a cup of coffee and meal or a place for a drink. I decided to pick a coffee shop – Java – which he liked very much.

Thandika was open to conversations, especially conversations based on data. Our meeting in December happened to be one such conversation. The meeting over coffee was one of the best I ever had with him. He was finalising his manuscript on his passionate topic. He was analysing new trends in Africa’s development. Many of us certainly knew that he was always very creative in the use of data and would find innovative solutions using data that was in the hands of many. During our conversation, I could see his fresh ideas in examining Africa’s development challenges and policy solutions.

The manuscript he discussed with me had data on Africa’s growth and development from the 1960s to 2019. He called one of the graphs a “killer graph” because he was able to examine growth factors from the 1970s to the present. He was of the view that the factors that fuelled Africa’s growth in the 1970s were very different from the factors that have been accelerating Africa’s growth from the late 2000s period. He identified the services sector and, in some instances, the ICT sector as responsible for the current growth. He argued that these would not have sound impact on Africa’s development. This is the argument he wanted me to critique once he was through with the drafting.

Coffee shop or beer bar – the embarrassing choice

Thandika was a man of humour. There was an instance at one particular conference in Nairobi where a speaker could not pronounce Thandika’s second name, Mkandawire. Thandika simply made it easy for him by telling him to pronounce it as Mkanda Wire (mkanda is Swahili for rope; and wire is a metal thread/rod). This left everyone laughing.

The manuscript he discussed with me had data on Africa’s growth and development from the 1960s to 2019. He called one of the graphs a “killer graph” because he was able to examine growth factors from the 1970s to the present.

He was humorous even when talking about serious and personal issues. After our coffee, he suddenly asked me: “Karuti, I did not know you would bring me to a coffee shop! When did you think I stopped taking Kenyan Tusker?” Of course, I had chosen the coffee shop as a venue because I thought I was being considerate. He had had cancer treatment and I thought we should consume something light. He told me that he had remained in remission for a while. But in his usual genius way of stating even the most difficult subjects, he quickly added, “But you know these things change…remission may be temporary or permanent…”.

We proceeded to a different restaurant for a Kenyan beer and my red wine, which he had the pleasure of selecting for me. I dropped him late at night at his apartment. I was feeling guilty because we had stayed out so long at night.

Influence on African scholarship

Sometime in 1998, Thandika came to Copenhagen for a research fellowship, just after his tenure at the Council for the Development of Social Science Research in Africa (CODESRIA). It was here, at the Centre for Development Research (CDR), that I came to really understand and appreciate the immeasurable support he lent me and other younger scholars. He had come to join our friend and leading Africanist, Peter Gibbon, a friend who was also my supervisor.

Thandika arrived in Copenhagen and had immediate intellectual impact. He had the ability to see things that Danish Africanists would or could not see. In fact, in some discussion, there was a question on why African scholars were no longer writing as they did in the previous decade and why they were not influencing policy thinking. Thandika simply walked the discussion through the turns and crises of higher education, neoliberalism and its impact on scholarship, and the significance of politics on university education.

Again, he showed his ability to look at Africa with fresh eyes when he pointed out to them two simple facts. One, the consultancy “industry”, including Denmark and Sweden (his home), had drained universities of talents that should be used for research. This was the basis of his then CDR working paper, “Notes on Consultancy and Research and Development Research in Africa”.

He also gave another reason, but in passing: the generation of African leaders that was implementing the neoliberal Structural Adjustment Programmes (SAPs) in Africa did not have an understanding of the role of higher education in Africa’s development. For him, the first generation of African leaders, such as Julius Nyerere in Tanzania and Kwame Nkrumah in Ghana, had a good understanding of this role, especially because many of them were educated and had peasantry backgrounds. (These challenges were later well addressed in a book on African intellectuals that he edited and which was published by CODESRIA.) He did point out that there was a quest to build a developmental state in Africa that would play the role of building institutions, but this effort was increasingly undermined by restructuring efforts forced by the West.

I am indebted to Thandika in another respect. We had a habit of occasionally going for simple lunch meals or going for a drink during some evenings. Nothing fascinated Thandika than research ideas. One of these evenings, we discussed my research work on the politics of land in Kenya. Before I could explain what my main research question was, he immediately quipped: “Why is land such an issue so many years after independence? Where are the large farms that the colonial settlers occupied in the white highlands?” This, of course, led to me to go further to get answers through a review of records – and getting new dimensions in every page I turned.

After a quick review of the data on large farms, I realised that the land question is a political question whose solution does not lie in titling or market solutions. At this time, Thandika had consolidated his arguments on the paper on “Crises Management and the Making of Choiceless Democracies”, as well as a paper on Malawi’s agriculture, employment and labour. Our discussions around these issues revealed the primacy of the state and the struggles for democratic reforms as central issues in understanding the state of development on the continent.

Before I could explain what my main research question was, he immediately quipped: “Why is land such an issue so many years after independence? Where are the large farms that the colonial settlers occupied in the white highlands?”

It was when he was in Denmark that Thandika was approached to apply for the post of Director at the United Nations Research Institute for Social Development (UNRISD). There had been no other African at this post and it was evident that regional blocs, including South East Asia and some European countries, were lobbying for their candidates. We had long discussions on what to do and how to do it but, trust me, Thandika does not lobby. It was left to his credentials to speak for him. His writings and publications spoke for him, in addition to extremely good reference letters by prominent scholars and Africanists.

He continued to publish and his works on Africa’s development are extensively cited by researchers. I have included his works in the courses I teach. I usually find it refreshing going back to his publications whenever I want to reboot my thoughts on Africa’s development. Indeed, one time I came to learn that my students often joke that one cannot be my friend without citing Thandika Mkandawire’s works.

IDS and CODESRIA

Every time we met, Thandika would ask about the state of research at the Institute for Development Studies (IDS) at the University of Nairobi, where I am based. He was indeed very happy when we met in Copenhagen and learnt that I was based at IDS. This is because of many reasons. First, as he told me and explained during the 15 CODESRIA General Assembly, IDS (Nairobi) and CODESRIA have an organic relationship. The life of both institutions was quite intertwined. CODESRIA has origins anchored in IDS and other development studies centres in Africa.

Thandika explained that in the early 1970s, the directors of development research centres in Africa met several times in Bellagio, Italy, with the support of the Rockefeller Foundation. But the African directors of development research institutes, including the then IDS Director, Dharam Ghai, decided to meet more regularly because they had lots of things in common. They began to convene as the Conference of Directors of Economic and Social Research Institute (the original CODESRIA). The meetings were generally informal and aimed at sharing information and research ideas on the state of development in their respective regions. They met annually and decided to rotate the hosting of the meetings, moving every year from one region to another. Over time, however, Samir Amin, the eminent and quintessential intellectual, decided to host the “conference of directors” at the UN Centre where he was the director – the African Institute for Economic Development and Planning (IDEP) in Dakar. After getting a “permanent home”, the conference transformed into a council – the Council for the Development of Social Science Research in Africa (the present-day CODESRIA).

Thandika explained that in the early 1970s, the directors of development research centres in Africa met several times in Bellagio, Italy, with the support of the Rockefeller Foundation. But the African directors of development research institutes, including the then IDS Director, Dharam Ghai, decided to meet more regularly because they had lots of things in common.

With this history, Thandika would always ask me about the state of development research at IDS and the challenges we face. When he learned that I had been appointed the Director of IDS, he immediately wanted to know what help I required from his end; and whether there was room for public debates similar to the “Kenya Debate” that IDS convened in the 1970s. In our meeting of December 9, he specifically asked me to plan for his “coming at IDS” to give a public lecture in March/April 2020. He had requested that I pass this message and greetings to his old friends, Prof. Peter Anyang’ Nyong’o; Prof. Michael Chege; and Prof. Winnie Mitullah. We had agreed that I would begin convening public intellectual debates, and that I would reach out to CODESRIA to add value to these debates. On 11 January 2020, I received another message from Thandika reminding me of our drink and discussion. I remember I was awaiting his manuscript. And he was waiting for the big debate at IDS in March/April 2020.

It was not meant to be. How I wish we could stop death! Thandika Mkandiwire’s passing is not easy to just accept on my part. He has left a mark on the academy and his influence will remain forever in our social science texts in Africa. I have had the honour of referencing his works; and asking students to read his articles for fresh ideas. I feel that his mark on African scholarship is indelible.

Farewell Thandika! My heartfelt condolences to his Wife Kaarina, his family and his many friends across the globe.

Farewell my mentor! Farewell my friend

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Prof. Karuti Kanyinga is a Research Professor and Director, Institute for Development Studies (IDS), University of Nairobi.

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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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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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