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Makau Mutua Was Wrong on JSC Reforms

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Professor Makau Mutua’s proposed constitutional amendments targeting the Judicial Service Commission are highly regressive and would neuter the independence of the judiciary.

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In his column in the Sunday Nation of May 31 2020, Professor Makau Mutua argued that there was need for a constitutional amendment targeting the Judicial Service Commission (JSC). Although details about his proposed reforms were scant, he did articulate three core changes on structure, membership and mandate.

On structure, he proposed splitting the JSC in two: an independent body for interviewing judicial candidates and hearing petitions against judges and, a commission chaired by the Chief Justice that would exclusively deal with the judiciary’s administration matters.

On membership, Mutua seemed to prefer dismantling the current membership of the JSC and adopting a model more akin to how other commissions — such as the Kenya National Commission on Human Rights — are constituted. The effect of such a model would be to ensure that institutions with ring-fenced membership in the JSC — the Law Society of Kenya, the Magistrates, Judges of the three Superior Courts and the Public Service Commission — would have no representation in the body. The model would likely then require the President to appoint a recruitment panel for commissioners and then both he and parliament would have the final word on who become JSC commissioners.

On mandate, Mutua argues for reducing the role of the JSC and limiting it to “only interviewing judicial candidates and hearing petitions against judges”. His choice of words is critical, because interviewing judicial candidates is not the same thing as deciding which persons should be appointed judges. The most extreme of Mutua’s recommendations is on the removal of judges, which he proposes be ceded to parliament.

There are many reasons why Mutua’s suggestions are highly regressive and unhelpful. However, before I outline some of those reasons, it is critical to explain what the constitution currently provides in respect of the JSC.

The Constitution and the JSC

The JSC is one of the independent commissions established by the constitution. It has eleven members with its composition constituted through a mixed approach. The first category are permanent positions comprising persons occupying the positions of Chief Justice and Attorney General. The second category are elective positions with the first three being for the judges of the Supreme Court, the Court of Appeal and the High Court. There are three other elective positions, one for Magistrates and the other two for a female and male advocate who are members of the Law Society of Kenya. Position to the third category are appointive, with appointment to the first position being made by the Public Service Commission. The constitution describes the remaining two appointive positions as “one woman and one man to represent the public, not being lawyers, appointed by the President with the approval of National Assembly”.

The JSC’s overarching role is to facilitate the independence, accountability as well as transparency and efficiency of the judiciary. One of its core tasks is nominating and recommending to the President, following a competitive and open process, persons for appointment as judges. Additionally, it is responsible for considering complaints against judges and notifying the President when to form a tribunal to determine whether a judge should be removed from office.

With the exception of the Chief Justice and the Deputy Chief Justice, whose candidatures have to be vetted by the National Assembly, the JSC essentially makes the decisions on persons to be appointed judges. Even for the Chief Justice and Deputy Chief Justice, the President and the National Assembly cannot substitute their choices for those of the JSC. Fundamentally, if the National Assembly declines to approve the person selected as Chief or Deputy Chief Justice, the JSC has to recommend an alternative candidate for vetting.

Of course, both Mwai Kibaki and Uhuru Kenyatta have shown their frustration with the constitutional edict removing from them the power to decide or directly influence the appointment of judges. This was apparent from the first appointments under the 2010 Constitution when Mwai Kibaki rushed to appoint a now retired Judge of the Court of Appeal as Chief Justice without the involvement of the JSC. The courts were quick to assert their authority, suspending Kibaki’s decision and the JSC eventually conducting a competitive process that saw Dr Willy Mutunga appointed Chief Justice. Ironically, Mutunga was perhaps the last person Kibaki had in mind for the position of CJ because, even though Kibaki’s autocratic tendencies now pale in comparison to Uhuru Kenyatta’s, still he seemed to prefer more pliant judges.

Nevertheless, while Kibaki was gracious after the courts blocked his choice, Uhuru has been contumaciously obstinate about seeking to influence the appointment of judges. It started in 2014 when he refused to appoint 14 Judges nominated by the JSC. The courts eventually forced him to make the appointments. Yet, since July 2019 he has refused to appoint 41 new Judges nominated by the JSC despite being ordered to do so by the courts. His court filings on the case show that he believes he can haggle over who he does not want to see appointed judge.

Ring-fencing the independence of the judiciary

The constitutional framework establishing the JSC is perhaps one of the constitution’s strongest tools to guarantee the independence of the judiciary by ensuring that (legally) political actors have little leeway to influence who becomes a judge. Yet, there are many other constitutional provisions that jealously guard the independence of the judiciary. This ring-fencing was not a chance constitutional design occurrence. It was reflectively deliberate. Historically, as Mutua rightly indicated, the propensity of Kenya’s political elite to demand control of the judiciary has been insatiable. Yet, in his wisdom, Mutua asks that parliament be given the mandate to remove judges. If this had been the case, nearly all our leading judges who have displayed exceptional courage in defending the rule of law would be long gone even where the threshold for removal was a vote by two-thirds of parliament. It would be an exceptionally gleeful removal ceremony as punishment for those judges who have displayed inestimable consistency in defending the rule of law and calculated to create a chilling effect on those still in the judiciary.

There is another and more fundamental reason.

The 2010 Constitution created a constitutional democracy. The cardinal feature of a constitutional democracy is the rule of law. Rule of law is a very basic concept which simply means that no person or institution should operate above or outside the law. That includes the President and his relatives. The sacrosanct task of checking that everyone operates within the law is assigned to the judiciary. A constitutional design that ensured that the institution entrusted to call out those who violate the law is to the extent possible devoid of interference was key. The solution was a professional yet diverse institution – the JSC – where no one voice had an eclipsing effect. Importantly, the designers of the Constitution made sure that legally the political class – the President and Members of Parliament – had a minimal, perhaps nearly inconsequential, role in deciding the composition of the judiciary.

Best practice

Mutua anecdotally samples how judges are appointed in different jurisdictions starting from – yes, you guessed right – the United States. He then mentions India and South Africa while providing scant details about the relevance of these countries.

As a starting point, the United States is just the wrong place to go when one wants to argue a case for the independent and professional appointment of judges. To begin with, the United States is not a modern constitutional democracy. In fact, I would argue that it is not at all a constitutional democracy but perhaps merely a struggling democracy with a constitution written by slave owners. Second, recent events have shown how the political class in the United States manipulates judicial appointments to entrench their political ideologies through the courts. I need say no more here.

The most recent detailed study on best practice to guarantee judicial independence through appointments, tenure and removal of judges is by the Commonwealth in 2015. The study builds on and complements the Latimer House Principles, a set of guiding principles promulgated by the Commonwealth Heads of State in Abuja in 2003 for the best ways to ensure a true separation of powers between the three arms of government: the judiciary, legislature and executive. While that study does not rate the legal norms of individual commonwealth countries for their effectiveness in guaranteeing judicial independence, it distils a set of principles for best practice. Kenya’s legal framework, under the 2010 Constitution, would rate relatively highly measured against those criteria.

“Intellectual” primer

We have in the 2010 Constitution the best law we perhaps could hope for to support the independence of the judiciary. It is therefore difficult to understand how the amendments to the constitution that Mutua argues for, superintended by a regime that does not believe in an independent judiciary, can achieve better independence, transparency and accountability of the judiciary.

In ordinary times, Mutua’s proposals would not elicit a response. However, they are made during a season of heightened and choreographed demands by those who control the executive and parliament, to effect amendments that would neuter the independence of the judiciary. His proposals might just be part of the “intellectual” primer that the Building Bridges Initiative is desperately clamouring for to sanitise its upcoming proposals for constitutional change.

Right of Reply

By Prof. Makau Mutua

I hope you’ve been well.  I’ve read with interest your response piece in the Elephant.  It’s challenging and engaging.  Several points.

First, you essentialize democracy without realizing it’s a system of governing people based on the stilts and fictions of liberalism.  Those fictions and stilts are very fragile.  That’s why democracy is an experiment whose outcome is unknown.  That’s why there’s nothing like a “modern” democracy.  Every country has a dynamic and evolving political system within the genre of political thought and history known as democracy.  What would interest me are thoughts about a post-modern post-liberal democracy.

Second, all systems and institutions rely on community ethics and standards of internalized norms and behavior.  You can’t abstract Kenya’s institutions from its corrupt elites in the judiciary, executive, and legislature — and even civil society.  It’s a rotten country, and you know it.  The three arms of the state are all equally corrupt.  They work together to steal and destroy.  That’s why it’s fallacious to imagine the JSC or the judiciary is above the muck.

Third, law is important but not determinative of anything.  Virtually all a society’s choices lie in politics — even law.  If your politics are bad — as we’ve seen in the US, and has been the case since its founding, then your laws are bad.

Fourth, you can’t carve out a sane lane in the judiciary without capturing state power and then leading a moral, normative, and cultural revolution.  Anything else is just elite and bourgeois musical chairs.  Lastly, the founders of the American state weren’t slave owners — rather, they repressed ENSLAVED Africans.  No one can normatively be a slave, but people can be empirically enslaved — I’ve written a chapter on this for a forthcoming book that Caroline Elkins has edited.

On the enslavement question, I just want to add that one human being can treat another as chattel, or commercial property — as Arab, Europeans, and White Americans did to black Africans.  But this empirical transactional concept cannot normatively vacate the humanity of the person treated as chattel.  In other words, one human being cannot be normatively owned by another.  That’s why the term slave is a political assertion without a philosophical basis.  It’s normalized by those who dehumanize black Africans in a bid to turn enslavement into a natural condition.

Finally, let me thank you for keeping the debate I started vibrant.  We can disagree, even in civil society without ulterior motives, or being pawns.  The tyranny of the intellect which requires orthodoxy or unanimity is by definition anti-intellectual.  Let’s continue the debate and engage it in a higher gear when we meet post-COVID!

Prof Makau Mutua

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Waikwa is a constitutional lawyer and co-founder of Katiba Institute.

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Unlike the Rest of the UN, Is WHO (Finally) Taking Sexual Abuse Seriously?

A disturbing report on the sexual exploitation and abuse of women and children in the DRC has laid bare the failure of UN agencies to protect vulnerable populations.

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Unlike the Rest of the UN, Is WHO (Finally) Taking Sexual Abuse Seriously?
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It is extremely unfortunate that at a time when the World Health Organization (WHO) is spearheading a campaign to get people vaccinated against COVID-19, and pushing rich countries to donate their vaccines to low-income countries instead of hoarding them, it is confronted with revelations that suggest deep systemic failures within the global health agency that have allowed its employees to get away with sexual exploitation and abuse of vulnerable populations.

Last month, WHO released a report that confirmed that there was sexual abuse of women and children by WHO employees in the Democratic Republic of the Congo (DRC) during an outbreak of Ebola in the country’s North Kivu and Ituri provinces between 2018 and 2020. This report was the result of an independent commission’s investigations following an exclusive media report last year that found that dozens of women in the DRC had been sexually exploited by aid workers, including WHO employees.  The most disturbing revelation was that some of the perpetrators were medical doctors. Many of the abused women were offered jobs in exchange for sex; others were raped or coerced into having sex against their will. There were also stories of women being forced to have abortions after they were sexually abused. The independent commission stated that its findings showed that 21 of the 83 alleged perpetrators were WHO employees, and that “individual negligence” on the part of WHO staff may have amounted to “professional misconduct”.

This is not the first time that sexual abuse and exploitation of women and children by UN employees has been reported in the DRC. In 2004, UN Secretary-General Kofi Annan ordered an investigation into sexual abuses by UN peacekeepers in the country after it became apparent that such abuse was widespread in this mineral-rich but conflict-ridden country.  The investigation detailed various forms of abuse, including trading sex for money and food. It was in the DRC that the term “peacekeeper babies” first emerged. Women who had given birth after being raped by UN peacekeepers spoke about being abandoned by both their families and the peacekeepers who had impregnated them. However, the report had little impact on the UN’s peacekeeping mission in the DRC – none of the perpetrators were brought to book nor were the victims compensated.

Sexual abuse of vulnerable populations, especially women and children, is particularly rampant in UN peacekeeping missions.  In 2017, the Associated Press revealed in an exclusive report that at least 134 Sri Lankan UN peacekeepers had exploited nine Haitian children in a sex ring from 2004 to 2007. Many of the victims were offered food or money after they were sexually violated. (These “sex-for-food” arrangements have also been reported in other countries experiencing conflict or disaster.) Although 114 of these peacekeepers were sent home after the report came out, none of them were prosecuted or court-martialled in their countries.

One reason why UN peacekeepers evade the consequences of their actions is that under the Status of Forces Agreement negotiated between the UN and troop-producing countries, UN peacekeepers fall under the exclusive jurisdiction of the country they come from. When cases of abuse are reported, they are either ignored by the countries, or the perpetrators are sent home—no questions asked.

Unfortunately, civilian UN staff who commit crimes such as rape also evade any legal action because the UN accords the UN and its employees immunity from prosecution. This immunity can only be waived by the UN Secretary-General, but the Secretary-General hardly ever waives this immunity even when there is overwhelming evidence against a UN staff member. This means that cases brought against UN employees cannot be tried in national courts, nor can the perpetrators be detained or arrested by national law enforcement agencies.  

At a press conference held last month, WHO’s director-general, Tedros Adhanom Ghebreyesus, apologised to the victims of the abuse in the DRC at the hands of WHO employees and promised to take action to prevent such abuse from happening again. “I am sorry for what was done to you,” he said. “What happened to you should not happen to anyone.”

The head of WHO has also promised to review the organisation’s emergency response measures and internal structures and to discipline those staff members who fail to report cases of sexual exploitation and abuse. WHO member states have also called for an “immediate, thorough and detailed assessment of what went wrong”.

I have no doubt that Mr Ghebreyesus is serious about fixing a problem that has plagued the UN for decades. In fact, his response to the sexual abuse allegations is much more honest and sincere than the responses of other heads of UN agencies whose employees have been accused of allowing sexual exploitation and abuse to occur under their watch. One, he established an independent commission to look into the sexual abuse allegations, which rarely happens. (Most UN agencies either ignore the allegations or order an internal investigation, which invariably determines that the allegations “could not be substantiated”.) Two, he has publicly committed to undertake wholesale reforms in WHO’s structures and culture that allow sexual exploitation and abuse of vulnerable populations to go undetected, unreported and unpunished. Three, he has agreed to the independent commission’s recommendation that an independent monitoring group be set up within two months to ensure that the commission’s recommendations are enforced.

“What happened to you should not happen to anyone.”

Most UN agencies would not welcome such intense scrutiny of their operations by independent bodies, so WHO’s efforts in this regard are laudable.  WHO’s actions could also be attributed to the fact that, unlike other UN agencies that report to the General Assembly, WHO reports to the World Health Assembly that comprises delegates that have technical competence in health matters and represent their governments’ ministries of health. Because it is a specialised UN agency not governed by the General Assembly, WHO can establish its own rules without deferring to the General Assembly. In this sense, WHO enjoys relative autonomy from the UN system’s gargantuan and highly opaque bureaucracy.

Cover-ups and impunity 

WHO’s response is a far cry from the normal tendency of UN bosses to cover up cases of sexual abuse and exploitation taking place under the UN’s watch.  In 2014, for instance, when a senior UN official reported to the French government that French peacekeepers operating in the Central African Republic were sexually abusing boys as young as eight years old, his bosses at the Office of the UN High Commissioner for Human Rights (OHCHR) responded by asking him to resign. When he refused to do so, they suspended him for “unauthorized disclosure of confidential information”, and, in a typical case of “shooting the messenger”, they directed their internal investigations towards him rather than towards the peacekeepers who had allegedly abused the children. This case, which received wide media coverage, did not lead to significant changes in how the UN handles sexual abuse cases. On the contrary, Anders Kompass, the UN official who reported the abuse, was retaliated against, and eventually left the organisation in frustration.

Cases of UN employees sexually abusing or harassing their colleagues are also brushed under the carpet. In 2018, for example, when an Indian women’s rights activist accused the United Nations Population Fund (UNFPA)’s India representative of sexual harassment, the UN agency said that its preliminary investigations showed that her allegations could not be substantiated. The Code Blue Campaign, which tracks instances of sexual harassment and exploitation by UN employees, dismissed the findings of the investigation, calling them a “cover-up.” (Soon after the activist made her allegation, UNFPA evacuated the accused from India, which further muddied her case.)

This is not an isolated case. In 2004, when a staff member at the UN’s refugee agency accused the head of the organisation of sexual harassment, the UN Secretary-General, Kofi Annan, dismissed her claims. Recently, a woman working at UNAIDS lost her job soon after she filed a complaint of sexual harassment against UNAIDS’ deputy executive director. This was after Michel Sidibé, the then head of UNAIDS, told a staff meeting that people who complain about how the agency was handling sexual harassment “don’t have ethics.”

The UN’s highly patriarchal and misogynistic culture allows such abuse to continue unabated. In 2018, the UN conducted an internal survey that found that one-third of the UN employees surveyed had experienced sexual harassment. It revealed that the most vulnerable targets were women and transgender personnel aged between 25 and 44. Two out of three harassers were male and only one out of every three employees who were harassed took any action against the perpetrator. About one in ten women reported being touched inappropriately; a similar number said they had witnessed crude sexual gestures.

Another survey by the UN Staff Union found that sexual harassment was one among many abuses of authority that take place at the UN. Results of the survey showed that sexual harassment made up about 16 per cent of all forms of harassment. Forty-four per cent said that they had experienced abuse of authority; of these, 87 per cent said that the person who had abused his or her authority was a supervisor. Twenty per cent felt that they had experienced retaliation after reporting the misconduct.

The UN’s highly patriarchal and misogynistic culture allows such abuse to continue unabated.

Since then, the UN has established a new sexual harassment policy and a hot line for victims of sexual harassment. However, remedial actions spelled out in the policy appear to be mediation or counselling exercises rather than disciplinary ones. The emphasis is on psychosocial support and counselling (for the victims, of course) and “facilitated discussions” between the “offender” and the “affected individual”. Disciplinary measures include physical separation of the offender from the victim, reassignment, and temporary changes in reporting lines. Official internal investigations are permitted, but as I have tried to illustrate, most internal UN investigations into cases of sexual harassment and other kinds of wrongdoing inevitably conclude that the sexual harassment or wrongdoing “could not be substantiated.” This leaves victims vulnerable to retaliation.

Perhaps WHO can lead the way in showing the rest of the UN system how to tackle sexual exploitation, abuse and harassment by UN employees. WHO has already terminated the contracts of four of its employees who were accused of sexually exploiting women in the DRC. However, a true test of WHO and the UN’s commitment to end such abuses would be if they reinstated all those who were fired for reporting such cases. I for one am eagerly awaiting the independent monitoring group’s findings on whether or not WHO has taken tangible and impactful measures to protect people from being sexually abused and exploited by its employees and to safeguard the jobs of those who report such abuses.

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

Katiba Institute adds to the growing comparative discussion around constitutional statutes and therefore ought to be keenly studied by students of comparative constitutional law.

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Previously, I have discussed the concept of constitutional statutes. Recall that a constitutional statute is a law that is “enacted in pursuance of the State’s positive obligation to fulfil a constitutional right.” While certain constitutional rights are self-enforcing (such as, for example, the right to free speech ipso facto prohibits the State from engaging in arbitrary censorship), others – by their very nature – require a statutory framework to be made effective. For example, the right to vote cannot be made effective without an infrastructure in place to conduct free and fair elections, including the existence of an independent, non-partisan Election Commission. Insofar as such a legislative framework is not in existence, the state is arguably in breach of its positive obligations to fulfil the right in question. Thus, to refine the definition further, a constitutional statute is a statute that “provides a statutory framework towards implementing a fundamental right, thereby fulfilling the state’s positive obligation to do so.”

What follows from the finding that a particular law is a constitutional statute? On this blog, we have discussed constitutional statutes in the context of amendments to the Right to Information Act, which have sought to undermine the independence of the Information Commissioners. We have argued that, insofar as constitutional statutes stand between the individual and the State, mediating the effective enforcement of rights, legislative amendments that prevent them from fulfilling this function, are thereby unconstitutional. Furthermore, once a constitutional statute has been enacted, the principle of non-retrogression applies – that is, the legislature cannot simply repeal the law and go back to a position where the right in question was unprotected. Another example discussed on this blog is the recent judgment of the Kenyan Court of Appeal in David Ndii, where it was held that the implementation of the Popular Initiative to amend the Kenyan Constitution required a legislative scheme, as also its discussion of the previous judgment in Katiba Institute, where an attempt to reduce the quorum for resolutions of the Independent Electoral and Boundaries Commission was held to be unconstitutional.

The judgment of the High Court of Kenya of 14 October 2021 – also titled Katiba Institute – provides an additional, fascinating implication that flows from the finding that a law is a constitutional statute. Katiba Institute arose out of the efforts of the Government of Kenya to implement a national biometric identification system called NIIMS, and the judgment of the High Court with respect to a challenge to the constitutionality of NIIMS (Nubian Rights Forum), which we discussed on this blog back in 2019. Recall that in Nubian Rights Forum, after a detailed analysis, the High Court struck down a part of NIIMS, and allowed the government to go ahead with the rest of the programme subject to the implementation of an effective data protection law. Therefore, as I had noted in that post:

The High Court’s decision – at least in part – is a conditional one, where the (legal) future of the NIIMS is expressly made dependant on what action the government will take. Thus, there remain a significant number of issues that remain open for (inevitable) litigation, even after the High Court’s judgment.

Notably, Kenya had enacted a data protection law in between the hearings and the judgment, but the High Court – in its verdict – was insistent that until the point of effective implementation, the continued rollout of NIIMS could not go on. And this was at the heart of the challenge in Katiba Institute: the applicant argued that NIIMS had been rolled out, in particular, without complying with Section 31 of the Kenyan Data Protection Act, which required a Data Impact Assessment as a pre-requisite to any data collection enterprise. In response, the state argued that the data collection in question had already been completed before the passage of the Data Protection Act, and that therefore – in accordance with the general principle that statutes are not meant to apply retrospectively – Section 31 was inapplicable to this case.

Engaging in impeccable constitutional statute analysis, Justice Jairus Ngaah noted that the Data Protection Act was “enacted against the backdrop of Article 31 of the Constitution.” Article 31 of the Constitution of Kenya 2010 guarantees the right to privacy. As the learned Justice noted, in its very preamble, the DPA stated that its purpose was to “give effect to Articles 31(c) and (d) of the Constitution.” Justice Ngaah then rightly observed, “The need to protect the constitutional right to privacy did not arise with the enactment of the Data Protection Act; the right accrued from the moment the Constitution was promulgated.”

The judgment of the High Court of Kenya provides an additional, fascinating implication that flows from the finding that a law is a constitutional statute.

It therefore followed that, on the balance, an interpretation that gave the DPA retrospective effect was to be preferred over one that did not. A contrary interpretation would mean that the state was entitled to collect data and infringe the right to privacy even in the absence of a legislative scheme. Or, in other words, having failed to implement its positive obligation to enact a constitutional statute to give effect to the right to privacy, the state could then take advantage of its own failure by nonetheless engaging in data collection enterprises anyway. This, naturally, could not be countenanced. And in any event, given that Article 31 had always existed, it followed that:

. . . there was always the duty on the part of the State to ensure that the Bill of Rights . . . is respected and protected. Section 31 of the Act does not impose any more obligation or duty on the state than that which the state, or the respondents . . . have hitherto had to bear.

On this basis, Justice Ngaah therefore held that NIIMS had been rolled out in breach of Section 31, and therefore, first, quashed the rollout itself, and secondly, issued a mandamus restraining the State from rolling it out again without first complying with Section 31.*

The judgment in Katiba Institute does not, of course, answer the number of questions that still remained to be resolved after the Nubian Rights Forum judgment, including some problematic aspects of the DPA itself. Those questions were not, however, before the court in this instance; on the other hand, the court’s finding that constitutional statutes apply retrospectively – and the reasons for that finding – make it a landmark judgment. Katiba Institute adds to the growing comparative discussion around constitutional statutes, Fourth Branch bodies, and “Guarantor Institutions”, and therefore ought to be keenly studied by students of comparative constitutional law.

* One cannot, of course, help comparing this with the judgment of the Indian Supreme Court in the Aadhaar case, where despite the fact that Aadhaar data was collected for more than five years without any law whatsoever, it was retrospectively validated by the Supreme Court.

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The Pandora Papers Reveal the Dark Underbelly of the United Kingdom

Through its network of tax havens, the UK is the fulcrum of a system that benefits the rich and powerful.

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There’s the role, for instance, played by the British Virgin Islands, an overseas territory of the UK that functions as a tax haven. Czechia’s multimillionaire prime minister used the territory to hide his ownership of a chateau in France. Others, including the family of Kenyan president Uhuru Kenyatta and Vladimir Putin’s PR man, have made similar use of the islands to conceal wealth – while Tony and Cherie Blair reportedly saved £312,000 in stamp duty when they bought a London property from a company registered in the British Virgin Islands in 2017.

Then there’s London itself. The leaked documents show how the King of Jordan squirreled personal cash away in the capital’s property market, as did key allies of Imran Khan, Pakistan’s president.

More details will emerge in the coming days. But one thing is already clear. This isn’t a story about countries on the periphery of the world economy. It is a story about how the British state drives a global system in which the richest extract wealth from the rest.

British through and through

The British Virgin Islands were captured by England from the Dutch in 1672. By then, the indigenous population had already gone – either slaughtered in an unrecorded genocide or fled for fear of one. The islands have been a haven for pirates of various sorts ever since.

But this is just one part of Britain’s offshore network. There are around 18 legislatures across the globe that Westminster is ultimately responsible for. These include some of the worst offenders in the world of money laundering, tax dodging and financial secrecy. The Cayman Islands are British. So is Gibraltar. So are Anguilla and Bermuda.

These places aren’t just British in an abstract sense. Under the 2002 British Overseas Territories Act, their citizens are British citizens. They operate under the protection of the British diplomatic service. And, when need be, they can rely on Her Majesty’s Armed Forces: in the last 40 years, Britain has twice gone to war to defend Overseas Territories. Once was when Argentina tried to claim back the Falklands/Malvinas. The other time was the invasion of Iraq, when the British government claimed that Saddam Hussein’s weapons programme threatened its military bases at Akrotiri and Dhekelia on the island of Cyprus.

This complexity is no accident

In total, experts estimate, Britain and its overseas territories are responsible for facilitating around a third of the total tax dodged around the world. And that’s before we consider money stolen by corrupt rulers, or the proceeds of crime. Not to mention the way that billionaires’ hidden wealth allows them to influence our political systems in secret.

This complexity is no accident. The UK, unlike almost any other country on earth, lacks a written constitution. The rules about how the rules are made are set through ‘convention’, an endless fudge that ultimately amounts to them being made up by our rulers as they go along.

We see this most clearly in how the domestic territories of the British state are governed: Scotland, Wales, Northern Ireland, Greater London and the City of London each has its own arrangements, each absurd in its own way. Each of these messes leaves a different tangled thicket in which the crooks of the world can hide their cash.

Seen from the perspective of international capital, though, it is the Overseas Territories, as well as the Crown Dependencies of Jersey, Guernsey and Mann, which form the most significant part of this complex. They use the malleability of the British constitution to form a network of safes in which the rich can hide their cash.

A new era

Although no one knows for sure how much money is hidden in tax havens, of which the British territories make up a significant chunk, the figures involved are so vast that academics at the Transnational Institute in the Netherlands have described them as “the backbone of global capitalism”.

Seen this way, the constitutional flexibility of the British state isn’t just some post-medieval hangover. It’s a hyper-modern tool in an era of global surveillance capitalism, where the rich can flit around offshore while the rest are forever trapped by borders.

Through its empire, the British state played a key role in inventing modern capitalism. Now, the UK is helping reinvent capitalism once more, by extending the protection of a constitution designed by the powerful, for the powerful, to the billionaires, oligarchs and criminals of the world.

Adam Ramsay is openDemocracy’s main site editor. You can follow him at @adamramsay. Adam is a member of the Scottish Green Party, sits on the board of Voices for Scotland and advisory committees for the Economic Change Unit and the journal Soundings.

This article was  first published by Progressive International

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