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Revealed: The CIA and MI6’s Secret War in Kenya

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A covert Kenyan paramilitary team armed and trained by the US and supported by UK intelligence is behind renditions and controversial killings of terror suspects in night-time raids, Declassified UK can reveal.

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The following is an abridged version of a two-part investigation. Read the full investigations here: Part 1 & Part 2. Republication courtesy of Declassified UK / the Daily Maverick.

A day before being killed in August last year, 45-year-old motorcycle taxi driver, Mohamed ‘Modi’ Mwatsumiro was heard arguing with his wife at their tin roof dwelling in the small town of Ngombeni, on the south coast of Kenya. Modi had ordered her to leave with their young child and stay with her family.

It is not known if Modi feared he was a marked man, but Kenyan police suspected he was linked to a suicide bomber involved in the DusitD2 hotel complex terrorist attack in Nairobi in January 2019, which killed 21 people including a US citizen. The attack was conducted by Somalia-based group al-Shabaab, which is designated as a terrorist organisation by the US and British governments, among others.

Eight months later, on 30 August, the same Kenyan paramilitary team that swept in to repel the DusitD2 attackers reappeared in unmarked vehicles, this time at Modi’s mud-stone home.

At just after 4am, commandos arrived armed with US-made assault rifles and pistols, and stormed Modi’s home. Modi hurled a grenade that failed to detonate, police later claimed. Seldom does a suspect emerge alive in such raids. Modi was no exception.

A covert war

The commandos belonged to the Rapid Response Team (RRT), a clandestine ‘special team’ of the Kenyan paramilitary General Service Unit’s Recce Company. The RRT was set up, equipped, trained and is guided on tactical counter-terror operations by America’s Central Intelligence Agency (CIA), a Declassified UK investigation can reveal.

Informally known as the Rendition Operations Team, the RRT is composed of around 60 police commandos.

The CIA’s covert programme, which began in 2004, is managed by a paramilitary liaison officer at the US embassy in Kenya’s capital Nairobi, but has until now successfully avoided public scrutiny.

The creation of the RRT was “an indigenous solution to an indigenous problem”, a former senior CIA counter-terrorism official told Declassified. “It puts a unit under our control for when we have targets that we feel need to go down.”

Based on interviews with over two dozen CIA, US State Department and Kenyan intelligence, paramilitary and police officers, this investigation has found that in its 16 years of operation, the CIA-backed team has been responsible for the capture of high value terror suspects, as well as rendition operations, killings and alleged summary executions.

Clandestine Kenyan team has been paid and assisted by the CIA to take down terror suspects since 2004.

The American and British governments provide covert support to Kenya in order to help it defeat al-Shabaab, an al-Qaeda-linked group that has carried out dozens of deadly attacks in Kenya. Its most high profile atrocities have been on Nairobi’s Westgate shopping mall in 2013, where it killed 67 people and on Garissa University in 2015 which killed 148.

While the precise number of RRT kill or capture raids against terror suspects is unknown due to the clandestine nature of the force’s operations, Declassified has investigated over a dozen cases.

In many instances, suspects raided by the RRT have ended up dead, with a police spokesperson subsequently claiming the target was armed and dangerous. But this investigation has also found cases of mistaken killings and alleged summary executions.

“The present government targets [people] in extrajudicial killings”, former Kenyan vice president, Kalonzo Musyoka said. Describing the killings as “unconstitutional”, he added, “This has spread bitterness…but because we are doing the bidding of the West in the war on terror, they are allowed to.”

Khelef Khalifa, chair of Kenyan human rights organisation Muhuri, said: “When these extrajudicial killings happen, Muslims feel they are under siege because they cannot comprehend why the government cannot arrest these people and take them to court, instead of killing them.”

Mistaken killing

On 28 October 2012, the RRT conducted another pre-dawn raid, this time in Kenya’s coastal town of Mombasa. The team was hunting for Fuad Abubakar Manswab, the alleged mastermind of a foiled 2011 terror attack in Mombasa. Manswab was thought to be “armed and dangerous,” a Kenyan officer said, and the RRT were instructed to “eliminate” him.

But an intelligence informant had mistakenly led the paramilitary team to the home of Omar Faraj, who worked as a cashier at a local butcher.

Unaware they were targeting the wrong home, RRT commandos broke down the door and fired tear gas inside. Faraj’s wife, Rahma Ali, remembers watching the officers open fire on her husband, who was balanced on a flowerpot trying to climb the wall. They hit him in the temple, and he fell back on top of her, blood streaming from his head. Faraj died but his wife survived.

Current and former members of the RRT stressed their objectives prioritise capture over killing. However, they all confirmed that any perceived threat or resistance from targets is to be met with lethal force.

“When we were trained on threats, we were taught human rights come later. If you have this bad guy and you cannot get him for interrogation then you’d better execute [him]”, said one of a dozen current and former Kenyan paramilitary officers who spoke on condition of anonymity.

When suspects disappear or turn up dead, the Kenyan government rarely undertakes a formal investigation. According to Maria Burnett, former East Africa director for Human Rights Watch, out of hundreds of extrajudicial killings that have taken place during counter-terrorism operations in Kenya in recent years, “only a small handful” had been seriously scrutinised.

The former senior US official said, “There’s never a real investigation by the Kenyan government. They don’t want to get to the bottom of it. It’s just not going to happen.”

Sometimes, though, targets are taken alive. In 2010, Kenyan police kidnapped and rendered the suspected militants behind the al-Shabaab-inspired bombings of a rugby club and restaurant in Kampala, Uganda, to face interrogation by American, British and Ugandan agents.

One RRT officer recalled a US-sponsored rendition operation to Uganda. RRT operatives captured the suspect in Nairobi, drove him overland to the western border, and then handed him over to their Ugandan counterparts. The CIA handlers “even gave us fuel for the vehicles and our upkeep all the journey”, an RRT officer said.

The US and UK hand

Housed at a secretive base in the town of Ruiru, east of Nairobi, the CIA paramilitary liaison provides the RRT with regular financial support, including allowances for operations and bonuses for successful missions. RRT officers confirmed receiving the equivalent of a 30% “boost” to their salaries per month.

The RRT also receives weapons and equipment from the CIA, including M4 carbines, pistols, grenade launchers, body armour, and CS grenades.

RRT sources independently confirmed that the team is not to be deployed by its Kenyan command for tactical anti-terror operations without the knowledge and consent of its US embassy handlers. The exceptions are for rapid response to high-profile terror attacks and for the diplomatic protection of foreign dignitaries.

Setting the RRT up, in 2004 the CIA paid for 18 commandos – dubbed ‘Team 18’ – to fly to the US for SWAT-style training in rendition and disruption operations, including surveillance, storming a building, close-quarter battle, and weapons handling at locations that include Annapolis Naval Academy in Maryland. The CIA has provided advanced versions of the training to dozens of RRT paramilitary officers over the past 16 years.

But the CIA paramilitary liaison, based at the US embassy in Nairobi, is also directly involved in planning some of the RRT’s operations. Occasionally, CIA operatives themselves have participated in operations by helping to plan raids and track the target. “If they really, really want the results, they will even assist directly,” one mid-ranking Kenyan paramilitary officer said.

Members of the secretive Kenyan team say their American handlers have done little to hold it accountable as its operational tempo increased dramatically after Kenya’s 2011 invasion of Somalia provoked a wave of domestic terror attacks.

Working closely with its counterparts at the Counterterrorism Unit of Kenya’s National Intelligence Service (NIS), the CIA identifies suspects and prepares target packages –  intelligence and analysis on a given suspect – that include actionable intelligence.

In formulating the target packages, CIA officers in Nairobi work closely with MI6, Britain’s foreign intelligence service, which relies on its long-standing human intelligence network to find and track targets and infiltrate militant circles.

“The Brits were worried”, a former senior CIA counter-terrorism official said, noting the influx of British ‘jihadi tourism’ to Somalia, via Kenya, after 2010. “Because they had a lot of British cases and I mean British citizens. In some respect I think the British kids were showing up there before some of our guys, before the American citizens started going to be suicide bombers.”

Unlike the CIA, actionable intelligence from MI6 does not reach the RRT paramilitaries directly, but through its CIA and NIS counterparts.

MI6 also collaborates with a team of Kenyan intelligence officers, as part of a liaison cell within NIS’ Counter-terrorism Unit, codenamed ARCTIC, Kenyan and US intelligence officials confirmed. At times, the NIS ARCTIC cell works directly with RRT operatives in finding targets and fixing their location before sending in the paramilitary team.

Avoiding detection

Multiple RRT officers, who operate in plainclothes when on tactical counter-terror assignments, admitted using unmarked cars hired from private companies and swapping between private or unregistered number plates, in order to avoid identification.

Declassified has also learned that since 2004, RRT operatives have disguised themselves as aid workers when on operation in refugee camps such as Dadaab in eastern Kenya or Kakuma in the northwest.

Britain’s MI6 plays a key role in identifying suspects for a ‘kill or capture’ list and finding and fixing their location.

Maria Burnett said she had “long-standing concerns that some Kenyan security forces make considerable efforts to conceal their identity, especially during counter-terrorism operations.” She added: “Such efforts are not only contrary to Kenyan law; they ultimately work to shield perpetrators of abuses from any shred of accountability.”

Defenders of the RRT say it has been instrumental in neutralising the threat from al-Shabaab. While the Kenyan and international press have made no mention of the RRT’s central role in counter-terrorism operations, multiple US and RRT sources confirmed that the CIA-supported team played a lead role in successfully neutralising the Garissa and DusitD2 attackers.

However, while al-Shabaab’s attack on DusitD2 claimed fewer casualties than the earlier Westgate and Garissa attacks, experts described the raid as “representing a new and dangerous phase in the group’s evolution”, since it was the first major operation relying on Kenyan nationals of non-Somali descent.

“We are being hit all the time. Because we are being seen as pro-American, pro-West”, former Kenyan vice president Kalonzo Musyoka said. “It’s not a matter of if, but a matter of when we get attacked again. For as long as we have our troops inside Somalia.”

Paramilitaries use covert tactics such as fake number plates and disguise themselves as aid workers, which “shield perpetrators of abuses from any shred of accountability”.

He added, “Extrajudicial killings push people underground. People say ‘OK, this is how our relatives have been killed. We shall take revenge!’…There is nothing that really radicalises [more] than taking somebody out in a manner that is not in accordance with the law.”

“Heavy-handed tactics seem to have become more pronounced in response to the terrorist threat following [the] Westgate [attack],” another former US ambassador Michael Ranneberger said. “All of this, of course, is linked to the culture of impunity, and heavy-handed tactics contribute towards radicalisation.”

The CIA, the US embassy in Nairobi, the Kenyan Police Service, and the Kenyan Ministry of the Interior, did not respond to requests for comment. The UK Foreign & Commonwealth Office said, “We don’t comment on intelligence matters.” DM

Read the full length two-part investigation online at: declassifieduk.org

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Namir Shabibi is a British investigative journalist who has written and produced documentaries for the BBC, VICE News and The Bureau of Investigative Journalism, among others. Declassified UK is an investigative journalism organisation that covers Britain’s role in the world.

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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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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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