Returning to the major crises we face at this historic moment, all are international, and two internationals are forming to confront them. One is opening today: the Progressive International. The other has been taking shape under the leadership of Trump’s White House, a Reactionary International comprising the world’s most reactionary states.
We are meeting at a remarkable moment, a moment that is, in fact, unique in human history, a moment both ominous in portent and bright with hopes for a better future. The Progressive International has a crucial role to play in determining which course history will follow.
We are meeting at a moment of confluence of crises of extraordinary severity, with the fate of the human experiment quite literally at stake. The issues are coming to a head in the next few weeks in the two great imperial powers of the modern era.
Fading Britain, having publicly declared that it rejects international law, is on the verge of a sharp break from Europe, on the path to becoming even more of a US satellite that it already is. But of course what is of the greatest significance for the future is what happens in the global hegemon, diminished by Trump’s wrecking ball, but still with overwhelming power and incomparable advantages. Its fate, and with it the fate of the world, may well be determined in November.
We are meeting at a remarkable moment, a moment that is, in fact, unique in human history, a moment both ominous in portent and bright with hopes for a better future.
Not surprisingly, the rest of the world is concerned, if not appalled. It would be difficult to find a more sober and respected commentator than Martin Wolf of the London Financial Times. He writes that the West is facing a serious crisis, and if Trump is re-elected, “this will be terminal.” Strong words, and he is not even referring to the major crises humanity faces.
Wolf is referring to the global order, a critical matter though not on the scale of the crises that threaten vastly more serious consequences, the crises that are driving the hands of the famous Doomsday Clock towards midnight – towards termination.
Wolf’s concept “terminal” is not a new entry into public discourse. We have been living under its shadow for 75 years, ever since we learned, on an unforgettable August day, that human intelligence had devised the means that would soon yield the capacity for terminal destruction. That was shattering enough, but there was more. It was not then understood that humanity was entering a new geological epoch, the Anthropocene, in which human activities are despoiling the environment in a manner that is now also approaching terminal destruction.
The hands of the Doomsday Clock were first set shortly after atomic bombs were used in a paroxysm of needless slaughter. The hands have oscillated since, as global circumstances have evolved. Every year that Trump has been in office, the hands have been moved closer to midnight. Two years ago they reached the closest they had ever been. Last January, the analysts abandoned minutes, turning to seconds: 100 seconds to midnight. They cited the same crises as before: the growing threats of nuclear war and of environmental catastrophe, and the deterioration of democracy.
The last might at first seem out of place, but it is not. Declining democracy is a fitting member of the grim trio. The only hope of escaping the two threats of termination is vibrant democracy in which concerned and informed citizens are fully engaged in deliberation, policy formation, and direct action.
That was last January. Since then, President Trump has amplified all three threats, not a mean accomplishment. He has continued his demolition of the arms control regime that has offered some protection against the threat of nuclear war, while also pursuing development of new and even more dangerous weapons, much to the delight of military industry. In his dedicated commitment to destroy the environment that sustains life, Trump has opened up vast new areas for drilling, including the last great nature reserve. Meanwhile, his minions are systematically dismantling the regulatory system that somewhat mitigates the destructive impact of fossil fuel use, and that protects the population from toxic chemicals and from pollution, a curse that is now doubly murderous in the course of a severe respiratory epidemic.
Trump has also carried forward his campaign to undermine democracy. By law, presidential appointments are subject to Senate confirmation. Trump avoids this inconvenience by leaving the positions open and filling the offices with “temporary appointments” who answer to his will – and if they do not do so with sufficient fealty to the lord, are fired. He has purged the executive of any independent voice. Only sycophants remain. Congress had long ago established Inspectors General to monitor the performance of the executive branch. They began to look into the swamp of corruption that Trump has created in Washington. He took care of that quickly by firing them. There was scarcely a peep from the Republican Senate, firmly in Trump’s pocket, with hardly a flicker of integrity remaining, terrified by the popular base Trump has mobilized.
This onslaught against democracy is only the bare beginning. Trump’s latest step is to warn that he may not leave office if he is not satisfied with the outcome of the November election. The threat is taken very seriously in high places. To mention just a few examples, two highly respected retired senior military commanders released an open letter to the chairman of the Joint Chiefs of Staff, General Milley, reviewing his constitutional responsibility to send the army to remove by force a “lawless president” who refuses to leave office after electoral defeat, summoning in his defense the kinds of paramilitary units he dispatched to Portland Oregon to terrorize the population over the strong objection of elected officials.
Many establishment figures regard the warning as realistic, among them the high-level Transition Integrity Project, which has just reported the results of the “war gaming” it has been conducting on possible outcomes of the November election. The project members are “some of the most accomplished Republicans, Democrats, civil servants, media experts, pollsters and strategists around,” the Project co-director explains, including prominent figures in both Parties. Under any plausible scenario apart from a clear Trump victory, the games led to something like civil war, with Trump choosing to end “the American experiment.”
Again, strong words, never before heard from sober mainstream voices. The very fact that such thoughts arise is ominous enough. They are not alone. And given incomparable US power, far more than the “American experiment” is at risk.
Nothing like this has happened in the often troubled history of parliamentary democracy. Keeping to recent years, Richard Nixon – not the most delightful person in presidential history – had good reason to believe that he had lost the 1960 election only because of criminal manipulation by Democratic operatives. He did not contest the results, putting the welfare of the country ahead of personal ambition. Albert Gore did the same in 2000. Not today.
Forging new paths in contempt for the welfare of the country does not suffice for the megalomaniac who dominates the world. Trump has also announced once again that he may disregard the Constitution and “negotiate” for a third term if he decides he is entitled to it.
Some choose to laugh all this off as the playfulness of a buffoon. To their peril, as history shows.
The survival of liberty is not guaranteed by “parchment barriers,” James Madison warned. Words on paper are not enough. It is founded on the expectation of good faith and common decency. That has been torn to shreds by Trump along with his co-conspirator Senate Majority Leader Mitch McConnell, who has turned the “world’s greatest deliberative body,” as it calls itself, into a pathetic joke. McConnell’s Senate refuses even to consider legislative proposals. Its concern is largesse to the rich and stacking the judiciary, top to bottom with far right young lawyers who should be able to safeguard the reactionary Trump-McConnell agenda for a generation, whatever the public wants, whatever the world needs for survival.
The hands of the Doomsday Clock were first set shortly after atomic bombs were used in a paroxysm of needless slaughter. The hands have oscillated since, as global circumstances have evolved
The abject service to the rich of the Trump-McConnell Republican party is quite remarkable, even by the neoliberal standards of exaltation of greed. One illustration is provided by the leading specialists on tax policy, economists Emmanuel Saez and Gabriel Zucman. They show that in 2018, following the tax scam that was the one legislative Trump-McConnell achievement, “for the first time in the last hundred years, billionaires have paid less [in taxes] than steel workers, school teachers, and retirees,” erasing “a century of fiscal history.” “In 2018, for the first time in the modern history of the United States, capital has been taxed less than labor” – a truly impressive victory of class war, called “liberty” in hegemonic doctrine.
The Doomsday Clock was set last January before the scale of the pandemic was understood. Humanity will sooner or later recover from the pandemic, at terrible cost. It is needless cost. We see that clearly from the experience of countries that took decisive action when China provided the world with the relevant information about the virus on January 10. Primary among them were East-Southeast Asia and Oceania, with others trailing along, and bringing up the rear a few utter disasters, notably the US, followed by Bolsonaro’s Brazil and Modi’s India.
Despite the malfeasance or indifference of some political leaders, there will ultimately be some kind of recovery from the pandemic. We will not, however, recover from the melting of the polar icecaps, or the exploding rate of arctic fires that are releasing enormous amounts of greenhouses gasses into the atmosphere, or other steps on our march to catastrophe.
When the most prominent climate scientists warn us to “Panic Now,” they are not being alarmist. There is no time to waste. Few are doing enough, and even worse, the world is cursed by leaders who are not only refusing to take sufficient action but are deliberately accelerating the race to disaster. The malignancy in the White House is far in the lead in this monstrous criminality.
It is not only governments. The same is true of fossil fuel industries, the big banks that finance them, and other industries that profit from actions that put the “survival of humanity” at serious risk, in the words of a leaked internal memo of America’s largest bank.
Humanity will not long survive this institutional malignancy. The means to manage the crisis are available. But not for long. One primary task of the Progressive International is to ensure that we all panic now – and act accordingly.
The crises we face in this unique moment of human history are of course international. Environmental catastrophe, nuclear war, and the pandemic have no borders. And in a less transparent way, the same is true of the third of the demons that stalk the earth and drive the second hand of the Doomsday clock towards midnight: the deterioration of democracy. The international character of this plague becomes evident when we examine its origins.
Circumstances vary, but there are some common roots. Much of the malignancy traces back to the neoliberal assault on the world’s population launched in force 40 years ago.
The basic character of the assault was captured in the opening pronouncements of its most prominent figures. Ronald Reagan declared in his inaugural address that government is the problem, not the solution – meaning that decisions should be removed from governments, which are at least partially under public control, to private power, which is completely unaccountable to the public, and whose sole responsibility is self-enrichment, as chief economist Milton Friedman proclaimed. The other was Margaret Thatcher, who instructed us that there is no society, only a market in which people are cast to survive as best they can, with no organizations that enable them to defend themselves against its ravages.
Unwittingly no doubt, Thatcher was paraphrasing Marx, who condemned the autocratic rulers of his day for turning the population into a “sack of potatoes,” defenseless against concentrated power.
With admirable consistency, the Reagan and Thatcher administrations moved at once to destroy the labour movement, the primary impediment to harsh class rule by the masters of the economy. In doing so, they were adopting the leading principles of neoliberalism from its early days in interwar Vienna, where the founder and patron saint of the movement, Ludwig von Mises, could scarcely control his joy when the proto-fascist government violently destroyed Austria’s vibrant social democracy and the despicable trade unions that were interfering with sound economics by defending the rights of working people. As von Mises explained in his 1927 neoliberal classic Liberalism, five years after Mussolini initiated his brutal rule, “It cannot be denied that Fascism and similar movements aimed at the establishment of dictatorships are full of the best intentions and that their intervention has for the moment saved European civilization. The merit that Fascism has thereby won for itself will live on eternally in history” – though it will be only temporary, he assured us. The Blackshirts will go home after having accomplished their good work.
The same principles inspired enthusiastic neoliberal support for the hideous Pinochet dictatorship. A few years later, they were put into operation in a different form in the global arena under the leadership of the US and UK.
The consequences were predictable. One was sharp concentration of wealth alongside of stagnation for much of the population, reflected in the political realm by undermining of democracy. The impact in the United States brings out very clearly what one would expect when business rule is virtually uncontested. After 40 years, 0.1% of the population have 20% of the wealth, twice what they had when Reagan was elected. CEO remuneration has skyrocketed, drawing general management wealth along with it. Real wages for non-supervisory male workers have declined. A majority of the population survives from paycheck to paycheck, with almost no reserves. Financial institutions, largely predatory, have exploded in scale. There have been repeated crashes, increasing in severity, the perpetrators bailed out by the friendly taxpayer, though that is the least of the implicit state subsidy they receive. “Free markets” led to monopolization, with reduced competition and innovation, as the strong swallowed the weak. Neoliberal globalization has deindustrialized the country within the framework of the investor rights agreements mislabeled as “free trade pacts. ”Adopting the neoliberal doctrine that “taxation is robbery,” Reagan opened the door to tax havens and shell companies – previously banned and barred by effective enforcement. That led at once to a huge tax evasion industry to expedite massive robbery of the general population by the very rich and the corporate sector. No small change. The scale is estimated in tens of trillions of dollars.
And so it continues as neoliberal doctrine took hold.
As the assault was just beginning to take shape, in 1978, the president of the United Auto Workers, Doug Fraser, resigned from a labor-management committee that was set up by the Carter Administration, expressing his shock that business leaders had “chosen to wage a one-sided class war in this country – a war against working people, the unemployed, the poor, the minorities, the very young and the very old, and even many in the middle class of our society,” and had “broken and discarded the fragile, unwritten compact previously existing during a period of growth and progress” – during the period of class collaboration under regimented capitalism.
His recognition of how the world works was somewhat belated, in fact too late to fend off the bitter class war launched by business leaders who were soon granted free rein by compliant governments. The consequences over much of the world come as little surprise: widespread anger, resentment, contempt for political institutions while the primary economic ones are hidden from view by effective propaganda. All of this provides fertile territory for demagogues who can pretend to be your savior while stabbing you in the back, meanwhile deflecting the blame for your conditions to scapegoats: immigrants, blacks, China, whoever fits long-standing prejudices.
Returning to the major crises we face at this historic moment, all are international, and two internationals are forming to confront them. One is opening today: the Progressive International. The other has been taking shape under the leadership of Trump’s White House, a Reactionary International comprising the world’s most reactionary states.
In the Western Hemisphere, the International includes Bolsonaro’s Brazil and a few others. In the Middle East, prime members are the family dictatorships of the Gulf; al-Sisi’s Egyptian dictatorship, perhaps the harshest in Egypt’s bitter history; and Israel, which long ago discarded its social democratic origins and shifted far to the right, the predicted effect of the prolonged and brutal occupation. The current agreements between Israel and Arab dictatorships, formalising long-standing tacit relations, are a significant step towards solidifying the Middle East base of the Reactionary International. The Palestinians are kicked in the face, the proper fate of those who lack power and do not grovel properly at the feet of the natural masters.
To the East, a natural candidate is India, where Prime Minister Modi is destroying India’s secular democracy and turning the country into a racist Hindu nationalist state, while crushing Kashmir. The European contingent includes Orban’s “illiberal democracy” in Hungary and similar elements elsewhere. The International also has powerful backing in the dominant global economic institutions.
The two internationals comprise a good part of the world, one at the level of states, the other popular movements. Each is a prominent representative of much broader social forces, which have sharply contending images of the world that should emerge from the current pandemic. One force is working relentlessly to construct a harsher version of the neoliberal global system from which they have greatly benefited, with more intensive surveillance and control. The other looks forward to a world of justice and peace, with energies and resources directed to serving human needs rather than the demands of a tiny minority. It is a kind of class struggle on a global scale, with many complex facets and interactions.
It is no exaggeration to say that the fate of the human experiment depends on the outcome of this struggle.
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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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