A number of African economies have experienced a massive boom in wealth and investment over the past decade. Yet most ordinary Africans live in dire poverty, with diminished life expectancy and high unemployment and in societies with low levels of industrialisation. For the roots of these conditions of “under-development,” one historical account stands alone in importance: Walter Rodney’s How Europe Underdeveloped Africa (1972).
Walter Rodney was a scholar, working class militant and revolutionary from Guyana. Influenced by Marxist ideas, he is central to the Pan-Africanist canon for many on the left. In How Europe Underdeveloped Africa, Rodney situates himself in several theoretical traditions: the writings of Caribbean revolutionary Frantz Fanon, the dependency theories of Andre Gunder Frank and others, the Pan-Africanist tradition, including George Padmore and C.L.R. James, and African socialism as popularised by national leaders such as Tanzania’s Julius Kambarage Nyerere and Guinea’s Ahmed Sékou Touré. As Horace Campbell describes, “His [Rodney’s] numerous writings on the subjects of socialism, imperialism, working class struggles and Pan Africanism and slavery contributed to a body of knowledge that came to be known as the Dar es Salaam School of Thought. Issa Shivji, Mahmood Mamdani, Claude Ake, Archie Mafeje, Yash Tandon, John Saul, Dan Nabudere, O Nnoli, Clive Thomas and countless others participated in the debates on transformation and liberation.”
Rodney’s scholarship and leadership in the working-class movement thus had a long reach, including within the revolutionary movement in his native Guyana. He was assassinated on June 13, 1980, likely by agents of the Guyanese government. The Nigerian novelist, Wole Soyinka, in noting Rodney’s legacy, wrote how “Walter Rodney was no captive intellectual playing to the gallery of local or international radicalism. He was clearly one of the most solidly ideologically situated intellectuals ever to look colonialism and exploitation in the eye and where necessary, spit in it.”
Rodney’s work has assumed a foundational place in understanding the legacies of slavery and colonialism in the underdevelopment that unfolded, over centuries, on the continent. The core of his analysis rests on the assumption that Africa – far from standing outside the world system – has been crucial to the growth of capitalism in the West. What he terms “underdevelopment” was in fact the product of centuries of slavery, exploitation and imperialism. Rodney conclusively shows that “Europe” – that is, the colonial and imperial powers – did not merely enrich their own empires but actually reversed economic and social development in Africa. Thus, in his extensive account of African history, from the early African empires through to the modern day, he shows how the West built immense industrial and colonial empires on the backs of African slave labour, devastating natural resources and African societies in the process. As he emphasises throughout How Europe Underdeveloped Africa, “[i]t would be an act of the most brazen fraud to weigh the social amenities provided during the colonial epoch against the exploitation, and to arrive at the conclusion that the good outweighed the bad.”
Wole Soyinka, in noting Rodney’s legacy, wrote how “Walter Rodney was no captive intellectual playing to the gallery of local or international radicalism. He was clearly one of the most solidly ideologically situated intellectuals ever to look colonialism and exploitation in the eye and where necessary, spit in it.”
For Rodney, underdevelopment is a condition historically produced through capitalist expansion and imperialism, and very clearly not an intrinsic property of Africa itself. He thus situates underdevelopment within the contradictory process of capitalism, one that both creates value and wealth for the exploiters while immiserating the exploited.
The peasants and workers of Europe (and eventually the inhabitants of the whole world) paid a huge price so that the capitalists could make their profit from the human labour that always lies behind the machines…There was a period when the capitalist system increased the well-being of significant numbers of people as a by-product of seeking out profits for a few, but today the quest for profits comes into sharp conflict with people’s demands that their material and social needs should be fulfilled.
As Rodney describes, African trade was central to its growth, most importantly through the slave trade from approximately 1445 to 1870, transforming Africa into a source of human raw material for the new colonies in North America and the Caribbean. It was to the three major powers involved in the slave trade – Britain, France and Portugal – that massive profits accrued. Trade with Africa was closely tied up with the growth of European port cities such as England’s Liverpool, with the exchange of slaves for cheap industrial goods established as the primary motor for profits of European firms. Drawing on the work of Eric Williams’s classic Capitalism and Slavery (1944), among others, Rodney concludes that the slave trade provided England with the capital for the Industrial Revolution to take off and with the dominant edge over its rivals.
Yet as Rodney shows, the “development” of African societies was thwarted in this process of capital expansion, first and foremost through the lost labour potential due to the slave trade. From its economic foundation in slavery, the range of exports from Africa narrowed to just a few commodities, undermining the development of productive capacity in Africa itself. These trade relations meant that technological development stagnated, creating a barrier to innovation within Africa itself, even in regions not directly engaged in the slave trade, because of the distorting influence on relations overall. The result, concludes Rodney, was “a loss of development opportunity, and this is of the greatest importance…The lines of economic activity attached to foreign trade were either destructive, as slavery was, or at best purely extractive.”
The Scramble for Africa and its aftermath
The nineteenth century “race for Africa” broke out, with European “explorers” seeking out access to raw materials. By the 1870s, colonial powers had expanded into new African territory, primarily through the use of force, further consolidating imperial powers and rivalries. By 1876, on the eve of the “Scramble for Africa”, European powers controlled only 10 per cent of the continent, namely Algeria, Cape Colony, Mozambique and Angola. Yet after the infamous Berlin Conference of 1885 and the partition of Africa, “The number of genuinely independent states outside of Europe and the Americas could be counted on one hand – the remains of the Ottoman Empire, Thailand, Ethiopia and Afghanistan.”
Racist ideology justified and facilitated European imperialism in Africa as a “civilizing mission”. As Rodney remarks, “Revolutionary African thinkers such as Frantz Fanon and Amilcar Cabral…spoke of colonialism having made Africans into objects of history. Colonised Africans, like pre-colonial African chattel slaves, were pushed around into positions which suited European interests and which were damaging to the African continent and its peoples.”
Nonetheless, Africans met European expansion with great resistance, targeting forced labour schemes and taxation, restrictive land ownership laws and later, imposed forced conscription during World War I. Workers went on strike and engaged in boycotts, and nationalist organisations – many of them illegal – were formed from the earliest days of colonial rule.
Yet African resistance during that period was caught between larger forces. The European “Scramble for Africa” subjected independent states to colonial rule, transforming peasant and trading societies within a short span of time into a wage labour and cash crop system. The increasingly intense economic competition in European capitalism that eventually exploded into World War I likewise spilled over into military clashes in Africa. Alliances between and against the various powers attempted to block each other’s rivals, with France and Britain seeking competing axes of control over the continent.
Colonial brutality was the standard practice across virtually the entire continent, with the chief aim of leveraging force to subdue resistance and to extract profits. Turning Africa into a conveyor belt for raw materials and industrial goods required transportation and communication systems and, as Rodney describes, a pacified – and minimally educated – labour force. The major powers on the continent set up administrative apparatuses that in some cases utilised local rulers, but, as Rodney writes, in no instance would the colonisers accept African self-rule. Infrastructure such as roads were built not only to facilitate the movement of commodities and machinery, but also that of the colonial armies and police relied upon to “discipline” the indigenous population – whether through the expulsion of people from their land or the forced cultivation of cash crops. Industrial development was thwarted in Africa itself because manufacturing and the processing of raw materials happened exclusively overseas.
Compradors and sell-outs
Europeans divide-and-conquer tactics allowed a tiny section of African rulers to back the annexation by one power versus another. As Rodney puts it, “One of the decisive features of the colonial system was the presence of Africans serving as economic, political or cultural agents of the European colonialists…. agents or ‘compradors’ already serving [their] interests in the pre-colonial period.” Following Fanon on the role of local elites, Rodney is scathing in his contempt for the “puppets” of “metropolitan” capitalism, where “the presence of a group of African sell-outs is part of the definition of underdevelopment.”
According to Rodney, “The colonisation of Africa and other parts of the world formed an indispensable link in a chain of events which made possible the technological transformation of the base of European capitalism.” Copper from the Congo, iron from West Africa, chrome from Rhodesia and South Africa, and more, took capitalist development to unprecedented heights of what Rodney calls “investible surpluses”. The tendency within the drive for profit towards innovation and scientific advancement built a “massive industrial complex,” as Rodney described it. African trade not only generated economic growth and profits, but created capacity for future growth in what he called the “metropoles”, meaning the global centres of political and economic power located in Europe.
Colonial brutality was the standard practice across virtually the entire continent, with the chief aim of leveraging force to subdue resistance and to extract profits. Turning Africa into a conveyor belt for raw materials and industrial goods required transportation and communication systems and, as Rodney describes, a pacified – and minimally educated – labour force.
Colonial policies heightened exploitation, such as those preventing Africans from growing cash crops, which drove them into forced labour like the building of infrastructure to facilitate extraction. Thus, capital accumulation was derived at the expense of greatly-weakened African states and economies, effectively reversing previous development.
These two processes were dialectically related. As Rodney writes, “The wealth that was created by African labor and from African resources was grabbed by the capitalist countries of Europe; and in the second place, restrictions were placed upon African capacity to make the maximum use of its economic potential.”
This process of underdevelopment only intensified over time: as Rodney points out, investment and “foreign capital” in colonial Africa was derived from past exploitation and provided the historical basis for further expansion. “What was called ‘profits’ in one year came back as ‘capital’ the next…What was foreign about the capital in colonial Africa was its ownership and not its initial source.”
Development by contradiction
Rodney argued that development in the so-called “periphery” was proportional to the degree of independence from the “metropolis”, a central tenet of the dependency theorists. He looked to state-directed, national development in the post-colonial period as a template for growth, a model proven – particularly in the years after Rodney’s death – not to be viable. National development in Africa, as elsewhere, proved unable to overcome the legacy of colonialism and weak economies. The wake of such failures and the onset of global crises pushed many African states into the vice-grip of neoliberal structural adjustment “reforms” that brought only austerity and crushing Third World debt.
These ideas had a distinctive imprint on Rodney’s variant of Marxism and that of many leftists of his day. For Rodney, independence in Africa rested on “development by contradiction”, by which he meant that the contradictions within African society were only resolvable by Africans’ regaining their sovereignty as a people. In his view, the disproportionate weight and importance of even a small African working class offered potentially a more stable base of resistance.
However, he emphasises that this possibility cannot be fully realised as in the “developed” world because production in Africa proceeded on a different path than in Europe. In the latter, the destruction of agrarian and craft economies increased productive capacity through the development of factories and a mass working class. In Africa, he argues, that process was distorted: the local craft industry was destroyed, yet large-scale industry was not developed outside of agriculture and extraction, with workers restricted to the lowest-paid, most unskilled work. “Capitalism in the form of colonialism failed to perform in Africa the tasks which it had performed in Europe in changing social relations and liberating the forces of production. “So, concludes Rodney, the African working class is too small and too weak to play a liberatory role in the current period. Instead, somewhat reluctantly, he identifies the intelligentsia for that role:
Altogether, the educated played a role in African independence struggles far out of proportion to their numbers, because they took it upon themselves and were called upon to articulate the interests of all Africans. They were also required to…focus on the main contradiction, which was between the colony and the metropole…The contradiction between the educated and the colonialists was not the most profound…However, while the differences lasted between the colonizers and the African educated, they were decisive.
Thus, while Rodney sees the “principal divide” within capitalism as that between capitalists and workers, the revolutionary role for the African working class was nonetheless a task for another day. On this score, Rodney was mistaken: mass upheavals by workers across the continent have shown the capacity for struggle, from the colonial period up to the present day.
Crumbs from the colonial table
Yet, however contradictorily, Rodney’s ideas on political leadership and liberation indicate the potential for resistance under today’s conditions. First, as we have seen, Rodney – following Fanon – was keenly aware of the class contradictions embedded in the new African ruling classes, tensions bound to be thrust to the surface with greater clarity. He writes: “Most African leaders of the intelligentsia… were frankly capitalist, and shared fully the ideology of their bourgeois masters…As far as the mass of peasants and workers were concerned, the removal of overt foreign rule actually cleared the way towards a more fundamental appreciation of exploitation and imperialism.” This dynamic has only been accentuated over time.
National development in Africa, as elsewhere, proved unable to overcome the legacy of colonialism and weak economies. The wake of such failures and the onset of global crises pushed many African states into the vice-grip of neoliberal structural adjustment “reforms” that brought only austerity and crushing Third World debt.
Furthermore, Rodney implies that internationalism on a class basis lay in the historical development of capitalism and solidarity as a crucial “political” question. “European workers have paid a great price for the few material benefits which accrued to them as crumbs from the colonial table,” he writes. “The capitalists misinformed and mis-educated workers in the metropoles to the point where they became allies in colonial exploitation. In accepting to be led like sheep, European workers were perpetuating their own enslavement to the capitalists.”
Rodney’s characterisation of European workers “led like sheep” may be too simplistic a description of workers’ understanding of capitalism. But Rodney is correct in stressing that racist ideas undermined their own liberation. The “crumbs” Rodney describes are the products of divisions sown by ruling class ideology, and not of insurmountable material barriers. Actually realising this (future) possibility – that of an international movement of workers of Africa and the West – has much to be gained from Rodney’s invaluable research and analysis.
This article was first published in the Review of African Political Economy.
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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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