If Kenyans had any doubt that the government is oblivious to their worries and concerns, the COVID-19 pandemic has confirmed their worst fears: the Kenyan government is not only ignorant about how the majority of the country’s citizens live, but it also simply doesn’t care. The level of insensitivity displayed by the president and his cabinet has stunned even those who would normally sing the government’s praises.
A few examples:
1. Bludgeoning citizens during a curfew
When the government imposed a dusk-to-dawn curfew and a partial lockdown at the end of March, images of police officers brutally beating up people waiting for ferries and other forms of public transport filled social media. There have been at least three reported deaths as a result of the violence inflicted on ordinary citizens by the police. No public apology by the police has been forthcoming, nor has there been any statement on who died and in what circumstances. The cruelty with which the curfew was enforced shocked even the international media, prompting the president to urge the police to use restraint. Yet, the beatings continue to this day. One recent video on social media showed police officers dragging a person from his house for not wearing a face mask – in his own house!
The new Cabinet Secretary for Health, Mutahi Kagwe, has adopted a similar “disciplinarian” approach to the pandemic, which has instilled more fear than confidence in the government. Instead of reassuring Kenyans, he has resorted to scolding them, even admonishing those who dare to eat “only one sausage” with their beer at restaurants (Restaurants have been asked to only serve alcoholic drinks to patrons who order food as well.)
2. No safety net for the poor and vulnerable
Meanwhile, President Uhuru Kenyatta, begging bowl in hand, has been imploring donors/lenders to give money to Kenya to allow the country to effectively handle the coronavirus crisis. (It must be noted that the president belongs to among the wealthiest families in the country, running a large monopolistic and highly profitable milk processing enterprise. Yet, there has been no talk of reducing milk prices during this current crisis, nor has the president or his family donated money or milk to charities helping the jobless and the vulnerable.)
Promises of cash transfers and food to those who are suffering extreme hardship as a result of the curfew and lockdown don’t seem to have materialised. A cynical citizenry is already wondering if the funds raised will go towards the intended beneficiaries or will simply line some politically-connected pockets. Anecdotal evidence and other reports indicate that the Sh2,000 (about $20) monthly stipend that was promised to the most vulnerable people has still not been disbursed to them despite assurances by various government officials that cash transfers started in April. A quick, highly unscientific survey I conducted on people living in Kawangware, a large informal settlement in Nairobi, showed that none of the people, who have either been laid off or have had to close down their small businesses, have seen a cent of the stipend.
As Mercy Mwenda, a columnist with the Daily Nation lamented, “Given the current government’s treatment of poor Kenyans, one would be mistaken to assume that one of the key strategies of fighting poverty by this government is by creating more poor . . . It is now that we realise that our interaction with the government, as poor people, starts and ends with elections. In between, only the tragedies affecting the rich and brought by the rich will be focused on”.
3. Flowers for UK medics but no rewards for Kenyan doctors and nurses
Cowed by the state, and with no support system to see them through the crisis, Kenyans had to endure another slap in the face when it was announced that the Kenyan government had sent flowers grown in Kenya to National Health Service (NHS) workers in the United Kingdom in appreciation of their efforts in treating COVID-19 patients. This public relations stunt (probably a misguided attempt by Kenya’s once thriving flower-exporting industry to ensure future exports) backfired. Disgusted Kenyans – who have witnessed a deterioration in their public healthcare system, where doctors and nurses barely have the tools to treat any patient, let alone one suffering from COVID-19, were aghast that the president saw it fit to reward healthcare workers abroad when doctors and nurses in local hospitals have been complaining of lack of personal protective equipment (PPE) and poor wages.
Uhuru responded to his social media critics by admitting that sending flowers to people in a rich country was not just a kind gesture by a poor country; it was a marketing strategy. He told Kenyans that the 300 bouquets of flowers were sent to the UK “to show the world our product” and to protect the country’s flower industry. Kenyans on social media were told to “think before you talk nonsense”.
4. Making people homeless in the middle of a lockdown
There were more shocking events to follow. About three weeks into the lockdown and curfew, some 5,000 people were forcibly evicted from a low-income neighbourhood in Nairobi and left homeless. Images of houses being demolished and women and children pleading for mercy did not move the government or the security personnel sent to the scene to halt the eviction.
The eviction happened during a time when no one could leave Nairobi due to containment measures, which meant that the evicted people could not even seek refuge in their rural homes. The 7 p.m. curfew also made it difficult for the evictees to find alternative accommodation at short notice. No one in government wondered how these people would enforce “social distancing” in their homeless state or where they would sleep during a night curfew.
The details about why this eviction was ordered at this time are scanty, but there is speculation that the order was made to pave way for a large development scheme nearby. Even if this is the case, why were the residents not given enough notice? More importantly, why was the eviction exercise (overseen by the police) ordered during a lockdown and curfew?
The international media and social media picked up the story and aired it for the world to see, but there was no apology or explanation from the state, nor any stated plans for resettling, housing or compensating those whose houses were torn down. John Githongo, the publisher of The Elephant, commented on Twitter: “That the demolition of houses of over 5,000 residents of Kariobangi North Ward can take place in the middle of an unprecedented pandemic lockdown demonstrates an official callousness and disregard for the lives and basic dignity of Kenyans that is staggering”.
Jubilee’s poor scorecard
What these tragic events have demonstrated is not just the government’s callousness in the midst of an extremely difficult period, but also its cluelessness, accompanied by extreme greed and an anti-intellectual posture, which has raised levels of mediocrity and incompetence in government not witnessed under Daniel arap Moi’s highly repressive regime. (Even the former president knew that you need intelligent people in government.)
State capture of media organisations has also made a disturbing comeback, with stories of editors taking instructions from State House, and with corporate interests aligning with state interests. (Uhuru’s contempt for the media – and for reading in general – was evident after he assumed the presidency when he stated that newspapers were only good for “wrapping meat”.)
When the coalition Jubilee government of Uhuru Kenyatta and his deputy William Ruto first took over in 2013, I thought it merely incompetent. But as the years passed, and as one corruption scandal after another threatened to taint the government’s legacy, it dawned on me that something more sinister was afoot. The corruption scandals were of such huge magnitude that Kenyans stopped counting the zeros in the amounts that were looted. Shady “tenderpreneurs” were blamed, but many Kenyans wondered how such large amounts could pass through important ministries without ministers or permanent secretaries noticing.
Belated attempts to curtail corruption in government have led to the sacking of a Treasury Cabinet Secretary, but this anti-corruption campaign appears to be targeting one side of the coalition government, which has raised questions about its impartiality.
It has also became apparent that the people running the show haven’t a clue about the challenges facing ordinary Kenyans. Election promises – such as the laptop for every Standard One pupil made by Uhuru during his 2013 election campaign – failed to consider that large numbers of Kenyan students go to schools that have no running water or electricity. Some schools, especially in remote areas, don’t even have roofs. One school board member told me of a case where tablets (and not the promised laptops) were delivered but they lie unused because they are not sufficient in number and, in any case, the teachers have not received training.
During the current crisis, government honchos encouraged school children to embrace e-learning at home, not realising that a personal computer is a luxury even for many university students, let alone primary school students.
Despite attempts to paint Uhuru’s “legacy” as one that has delivered tangible benefits to Kenyans, citizens now know that promises made by him and his deputy (like the stadiums that were to be built in various towns across the country) have not materialised. On the contrary, Kenyans have suffered a steep decline in their standard of living, thanks to high rates of inflation and a declining shilling.
And as if Kenyans are not already suffering financially on account of the current lockdown and curfew, the Treasury Secetary, Ukur Yatani, recently proposed a raft of additional taxes, which will make life for poor and middle class Kenyans and those who have lost their jobs or businesses even harder. He wants to impose 14 per cent VAT on liquefied petroleum gas (which was previously exempt from tax); he wants to tax pensions paid to people over the age of 65; he even wants to impose a 14 per cent tax on machinery and equipment used in plastic recycling plants (a real disincentive to those who recycle waste and care for the environment).
These and other new taxes are no doubt a response to the ballooning debt now standing at Sh6.29 trillion (about $60 billion or around 60 per cent of the country’s GDP) that the Jubilee government has inflicted on the country, and which it appears unable to repay. Early this month, Moody’s, the international credit rating agency, downgraded Kenya’s credit rating from “stable” to “negative” owing to the country’s huge repayments on external debt, heavy local debt obligations with less tax income (thanks to a mismanaged economy that saw several small and medium enterprises fold up due to high energy and other costs, including high taxation) and dollar loans that could see repayments rise if the shilling declines sharply. Given that Kenyans are also suffering – and will continue to suffer – from the effects of the COVID-19-related lockdown for several months, if not years, it is deeply insensitive to increase their suffering through punitive taxation.
The Jubilee government’s extortionate methods of taxation remind me of the notorious “hut tax” imposed by the British colonial administration which, having forcibly alienated the indigenous peoples from their land, then proceeded to impose a tax on them as a means of coercing them into paid employment on white settler farms, a form of extortion that eventually led to the anti-colonial Mau Mau rebellion.
An unholy alliance
Part of the problem is that the ruling elite in Kenya, particularly Uhuru Kenyatta, have never experienced real poverty. Uhuru’s father, Jomo Kenyatta, Kenya’s first president, came from a humble peasant background, but within a decade of his rule after independence, he had become one of the wealthiest people in the country, with landholdings all across the country, some acquired through coercion.
Deputy President William Ruto has never hidden the fact that he comes from a poor family and even sold chickens by the roadside to earn a living when he was a young man. But it is not lost on Kenyans that the vast fortune he has today is the result of crooked deals he made when he was close to Moi, who groomed him to be a campaigner for his KANU party when it appeared that he might be losing his grip on power. Ruto has since been named in various land-related scandals, allegations he continues to deny.
The unholy alliance between these former International Criminal Court (ICC) indictees opened the floodgates of impunity. When Uhuru and Ruto joined hands to form the Jubilee Party in the run-up to the 2013 election – which they dubbed “a referendum against the ICC” – they were essentially telling Kenyans that any crime – even one against humanity – can be overlooked as long as the people vote overwhelmingly for those accused of that crime. Their election campaign encouraged a wave of known criminals to vie for political office, contrary to Chapter Six of the 2010 Constitution that demands that leaders in government be people of integrity.
However, now, seven years after that marriage of convenience, Uhuru seems to have switched sides. A clear example of the dishonesty that has pervaded his administration is the sidelining of allies of the deputy president, who in 2013 was paraded as the president’s best friend, ally and fellow indictee wrongfully charged by an international court. Both men often appeared in public holding hands and dressed in similar attire (another publicity stunt no doubt concocted by the various PR companies that the president hired to whitewash and shore up his image).
Now that Uhuru has joined hands with his former foe and leader of the now defunct opposition, Raila Odinga, he thinks nothing of dumping his deputy. Ruto is not known to be a man of integrity or honesty either, but when a man he helped to win an election dumps him like an old wet sock, it says a lot about the man doing the dumping. And given that Uhuru is capable of throwing people who helped him win an election under the bus, what guarantee is there he won’t do the same to Raila?
A bumpy ride and possible rebirth
Kenyans are in for a bumpy ride in the months leading up to the 2022 election, what with an ailing economy, thanks to mismanagement and now COVID-19, and a highly charged political environment where friends and foes have become highly interchangeable. In other countries, the mismanagement of the economy and the callous treatment of citizens would normally lead to a change of guard during elections. But this being Kenya – where loyalty to one’s tribe trumps qualifications – all we can expect is more of the same. Or perhaps COVID-19 may have finally helped to unmask our leaders to show their true colours, which could alter the way Kenyans view leadership.
Going forward, I envision a “lost development decade” for Kenya, much like the one that African countries experienced in the 1990s during the implementation of the World Bank-IMF Structural Adjustment Programmes (SAPs) that led to withdrawal of essential services by the state and huge job cuts in the public sector, increasing the levels of hardship across the continent. The repayment of unsustainable and reckless loans will no doubt leave Kenya economically much weaker, and halt progress in key sectors. COVID-19 has only served to hasten the country’s inevitable economic decline.
However, we must also remember that the 1990s also gave birth to pro-democracy movements in Kenya and in many other African countries. As then, an angry, disillusioned and impoverished citizenry may now finally say, “Enough is enough!” This could give rise to a progressive alternative leadership that actually cares about the country and its citizens, and which has the vision and capacity to unleash Kenya’s unlimited potential.
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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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