In 2020, I learned the elasticity of time. How every new day arrives with so much need for adaptation and emotional processing that the day before it feels like it happened 10,000 years ago. How the “old normal” of what I have taken to calling “the before times” can be imperfectly resurrected by rituals we used to participate in without concern, but which now seem worryingly, potentially harmful—my sister-in-law blowing out candles on her birthday cake, for instance. Are we still allowed to share birthday cake?
In 2020, I learned the visceral life-saving power of care. How much all of us who are managing to navigate the pandemic are being given that gift of being able to manage by—and at the expense of—a newly-recognised class, the “essential workers” whose jobs require them to care for us. These are the people who keep our hospitals functioning, the people who keep our grocery stores open and make it possible for some of us to move our consumption online, the people who keep freight trains and long-distance trucking going, and—in island nations—the people who work at our borders and our ports. They are also people on whom our lives depend: factory workers who make personal protective equipment (PPE), sanitation workers and janitors at hospitals, bus drivers, meatpackers, and farm workers.
2020 makes me think of the poignant conclusion American journalist Barbara Ehrenreich drew, a generation ago, from her experiments with trying to live on a minimum-wage job in Bill Clinton’s America (spoiler: you can’t—not in any way that encourages human flourishing). Speaking of the attitude she thinks we ought to adopt with respect to “the working poor”, Ehrenreich insists that “the appropriate emotion is shame—shame at our own dependency . . . on the underpaid labour of others.” Presenting this exploited and neglected segment of the labour market as “the major philanthropists of our society,” Ehrenreich explains that “[w]hen someone works for less pay than she can live on—when, for example, she goes hungry so that you can eat more cheaply and conveniently—then she has made a great sacrifice for you, she has made you a gift of some part of her abilities, her health, and her life.”
I have considerable sympathy for the view that those of us who live well should indeed feel great shame in the face of all the people who provide us with the things we are not able to provide for ourselves. Every paved road, every functional traffic light, the towel I used after my morning shower; I couldn’t provide these for myself no matter how many bootstraps you might give me. But writhing in shame is neither a productive attitude nor an interesting one. It will not absolve our past heedlessness of our dependence on people whose labour is essential—and is devalued so that it can be affordable for us. It will not build a world in which all of the people we now see as necessary are adequately valued.
It has been a really hard year. But oddly, I still find bits of hope and consolation in the fact of this being a truly global experience, possibly the first of my lifetime. Every year is hard for the people who get cruelly sorted into underclasses and marginal subject positions. And there are events so devastating that they reach even into pockets of privilege and become a country’s (or a region’s) shared experience. But this? Everybody, everywhere, has been touched by this pandemic somehow. While the impacts are of course differently distributed, we are all grappling with the same crisis, and I can’t help but wonder whether this might be a moment in which we—all of us, as human communities—can start to see the enormous and under-rated value of care. So many of the people who have been shoved to the margins of global power structures—whole countries of the global south, indigenous populations within wealthy global north nations—have been revealed as people on whom our multinational inter-connected lives depend, or as “elders” who have a lot to teach us about community survival.
Those of us who live well should indeed feel great shame in the face of all the people who provide us with the things we are not able to provide for ourselves.
The first piece I wrote for The Elephant was an analysis of strands of decolonisation theory that are resonating today through the Black Lives Matter movement (BLM). Black Lives Matter began as an African-American activist movement to honour blackness and to protest the culture of policing implicated in the killings of unarmed black boys (Trayvon Martin and Michael Brown). Less than a decade after its emergence in the United States, the movement marked 2020 as a year of global protest against American policing in the wake of the killing of yet another unarmed black man, George Floyd. I noted in that first piece BLM’s commitment to “unapologetic blackness” and to building inclusive, intergenerational solidarity against state-sponsored violence, both locally and around the globe. I noted too the unmistakeable echoes of decolonising theorists Frantz Fanon and Sylvia Wynter in BLM calls for solidarity with (for love of) the men and women of colour whose lives have been taken from them.
Both Fanon and Wynter take on the discursive politics of domination that render our social worlds places where people of colour combat a perception that they must prove their humanity—or, even more toxically, learn that they cannot ever prove this humanity of theirs conclusively enough to establish themselves enduringly as persons of value. In her analysis of these ongoing struggles for recognition, Wynter indicts Eurocentric-North American epistemological commitments to hierarchy and to the belief that those at the top of the hierarchy are both the most worthwhile and the most fit to survive. For her, the monetisation of everything in our social worlds results in a warping of our capacity to see humanity, and the consequent capacity to see the value in all human lives. To cast her point in the language of the lessons of 2020: we must rethink what counts as value, in order to learn how to care (better).
Going back to what I wrote in 2019 after living through 2020 brings me that sense of elastic time I cited at the outset as one of this year’s lessons for me. I see in all of the pieces I have contributed to The Elephant a thread of awareness that survival and solidarity are linked. But it has taken the events of this past year for me to fully appreciate how much decolonisation theory and social-justice activism depend on care—both the practice of care work and the theorising of ethics of care. And it is only in retrospect that I see so clearly why empathy-building has been (has needed to be) such a central goal of the Black Lives Matter and #metoo movements that I was writing about here and elsewhere throughout 2019. Empathy can be built into solidarity, which (when well directed) manifests as the care that keeps us alive. This observation, I should note, is conceptually a restatement of critical race theorist and Occupy Wall Street activist Cornel West’s dictum that justice is what love looks like in public.
Black Lives Matter has been doing this empathy work—asserting that black lives are indeed among all the lives that matter—through protests and online awareness campaigns that confront and contest police narratives of criminality and justified response through pushing into public consciousness the names, faces, and life stories of individual persons of colour who have been killed. Their success in building a solidarity that can withstand law enforcement’s hostility and the public’s apathy was made evident in 2020; George Floyd’s name, face, and story have been in the foreground of the protests that have taken place in countries as far away as New Zealand.
In similar fashion, the #metoo movement invokes traditions of solidarity and community-building that very clearly aim at normalising and propagating empathy, and are embedded in its very name. “Me too” was the catch-phrase around which Tarana Burke, an African-American community activist against sexual violence, built her outreach efforts (which, years later, were introduced to the global online world through actress Alyssa Milano’s tweet, just as news stories of Harvey Weinstein’s sexual predation were first being published). Burke’s explanation of this catch-phrase that became, first, a community-organisation project, then an online archive of survival testimonies, was that it was the phrase she wished she had had the presence of mind to utter to the first young girl who disclosed a story of sexual abuse to her. In my 2019 analysis of the “black roots” of “me too”, I argued that this phrase needs to be understood within the context of African-American musical and linguistic conventions: a call demands a response. “Me too”, I noted, is a response resonant of these African-American call-and-response traditions, traditions that build relationship and community through recognition of shared perspectives: “me too’ … “you too?” … ”yes, me too.”
Frantz Fanon, one of the most fiercely beating hearts of decolonisation theory during the days of postcolonial independence that birthed the Third World, knew the importance of both empathy and care in building independence movements and new nations. His account of how Algerian independence forces reached the point of realising that their war against French colonisers would succeed (L’An V de la révolution algérienne, published in English as A Dying Colonialism) is rich with examples of both. Pan-Africanism, in all its variants, is built on appeals to “feeling with” (the literal meaning of “empathy”). What is new—what 2020 has given us—is an archive of heart-breaking examples of the need for care labour and the politically transformative power of care as an orientation towards others. I think, for instance, of the singing and music-making on balconies around the world as community responses to “lockdown isolation”, and the heroic decency of hospital workers who connected people on their deathbeds to loved ones via iPads so they didn’t die entirely alone.
Those of us who are gleaning inspiration and encouragement from online streaming during lockdowns of 2020 might recognise “black traditions” of care work as they are modelled (imperfectly) in Netflix’s The Queen’s Gambit, through the supporting character of Jolene. The show has been criticised for its instrumental use of its most significant character of colour; Jolene is present in the story only as a source of care for the white girl whose life is the story’s focal point. That criticism is fair—Jolene is not drawn with as much nuance as she deserves, nor is her story given adequate weight—but there is something I see in the show’s presentation of her that goes beyond these criticisms. Yes, as a character, she is subordinated to Beth, the centre of the story. (And yes, that is a criticism that needs to be levelled against the show; it ought to bother us that black characters in the show are personified only slightly more than chess pieces.) But it misses the power of what I saw in how Jolene cares. This power of her care is notably (perhaps only?) on display in the scenes where she comforts Beth after the death of the man who taught her to play chess.
Empathy can be built into solidarity, which (when well directed) manifests as the care that keeps us alive.
I’m not at all certain that I would have seen those scenes the way I did if I had watched the show without having lived through 2020. Through this lens, however, I see something about the way Jolene was able to acknowledge the dark, unfair elements of life and death and was able to comfort with clear eyes (characterising the main character’s unexpected grief as “biting off more than you can chew”) that has stayed with me as emblematic of the orientation to care that I think we need in the wake of 2020.
In the white-dominated, (post)British-colonial cultures that raised me, there is a standard response to grief and trauma that involves dismissing or downplaying the trigger incident (it’s not so bad) and encouraging minimised emotional reactions (stiff upper lips). Jolene’s care in the face of grief does neither of those things; she can acknowledge the devastating, shattering experience of grief that Beth is undergoing and can sit with Beth through it. In this model of care, grief is not nothing, or a little thing, or not so bad. And the person who is grief-stricken is not broken, needing to be fixed. The grief-stricken person has been wounded and, in their healing, needs care from others—needs empathy and the authentic comfort that we find in solidarity. All of this strikes me as true of trauma as well as grief, which is why I see “how Jolene cares” as an attitude so well suited to our pandemic times.
All of us who have experienced 2020 have shared a year which has been traumatic for many. Practicing “how Jolene cares” is a project of acknowledging these individual traumas in our ongoing encounters with those who carry them as burdens. And it is a project of searching for ways to give practical, basic-needs-oriented care—not in the triage-inflected levelling-down of care to the barest necessities that characterised so many rushes to lockdown in 2020, but with attention to the other’s needs-within-their-healing-process that, for many of us who have wrestled with either grief or trauma (are they always distinct things?), is the ground out of which trust might be nurtured and grown and is the first nascent re-connection to a world that has been so wounding. If sustained practice of this care model also teaches us to see how much care we are receiving from others every day, all the time, it has the potential to be radically transformative—in exactly the way that Fanon and Wynter’s decolonisation theories urge.
At the very end of 2019, I wrote a piece about Haiti in which I offered an extended digression on a New Year’s Day tradition that builds and celebrates solidarity (January 1 is also celebrated as Haiti’s independence day, the anniversary of its decolonising declaration of itself as a free black nation). This tradition, the making and sharing of a gourd-based soup known as joumou, is a ritualised act of care through food, intended to inspire Haitians to re-dedicate themselves to each other in the coming year, and to build upon the promise of human dignity that was the Haitian Revolution. In that piece, I urged readers of The Elephant to honour the spirit of Haiti’s New Year’s Day tradition, and to recognise the role that Haiti’s revolution has played in creating a world that slowly—incrementally, but undeniably—is becoming less hostile towards blackness. Returning to my discussion of joumou with 2020 behind us, I want to bring to the fore the idea of food as love—something I think I elided in my earlier discussion of food as political symbol.
Many years ago, as a much younger woman, I waitressed in restaurants. I hated being treated like a servant by restaurant patrons, but there were many aspects of that work that I enjoyed and that have stayed with me over the years as behavioural habits. The thing I loved the most about waitressing was being able to bring someone a steaming plate of hot food on a cold day. (This was when I lived in Canada; there were many cold days.) That act of giving one person something they need to sustain their life and well-being was always a deep pleasure for me, because it always made me feel deeply connected to all my fellow human beings. This, I think, is the essence of what is being ritualised in the Haitian tradition of sharing joumou on the first day of the new year. Giving care—giving love, giving what is needed to sustain life—and receiving it can, at its most powerful, form connections among the people in a particular care-interaction that can also weave them all together into a larger community.
When I first discussed the idea for this article with my editor at The Elephant, his judgement was that he too thought “we should end the year with some empathy.” It took a long time to pull together my thoughts—so long that I rendered an end-of-year wish for empathy outdated. What I now offer readers instead is my profound hope that we can begin 2021 with empathy enough to make the new year one in which each of us is empowered by the care that we receive, and by the care that we give.
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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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