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Will Kenya’s Vision 2030 Megaprojects Bring the North in From the Cold?

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The proposed megaprojects have shifted the focus of conflict to disputes over land and boundaries, an emotive issue that reinforces the deep-rooted sentiments of regional exclusion and inequality.

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Will Kenya’s Vision 2030 Megaprojects Bring the North in From the Cold?
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Northern Kenya is the embodiment of the precariousness of a post-colonial nation-state. Both the colonial and the post-independence governments neglected the region, leaving it completely underdeveloped compared to the rest of Kenya, a situation American writer Negley Farson described “as one half of Kenya, about which the other half knows nothing and seems to care even less [about].”

The colonialists referred to the inhabitants as “the hostile tribes” and as the relationship between the rest of Kenya and the north became fraught, the region attempted to secede immediately after Kenya’s independence, a step that set the tone for the way the area was governed post-independence — closed and ignored.

Independent Kenya adopted the methods of the colonial administration and continued to enact restrictive legislation. Where the colonial administration had passed The Outlying District Ordinance of 1902 and The Special District Ordinance of 1934, the Jomo Kenyatta administration passed the Preservation of Public Security Act of 1964, hot on the heels of the Shifta War. In 1970, the government passed the Indemnity Act that applied to North-Eastern Province (Garissa, Wajir and Mandera) and Isiolo, Marsabit, Tana River and Lamu Districts. The Act immunised the government against any claims for compensation for human rights abuses committed between the 25th of December 1963 and the 1st of December 1967.

The securitisation of the region led to egregious human rights violations by state security agencies. Massacres were committed in Wagalla (Wajir), Malka Mari (Mandera) and Daaba (Isiolo), and people and livestock were confined to restricted areas as part of the strategy to counter the Shifta insurgency. Today, high poverty levels among the Waso Borana are attributed to these events, with communities narrating that any livestock found outside the designated areas was either killed or confiscated and taken away by the military.

Thousands of families escaped to Somalia, only returning in the early 1990s and settling in lower Garbatulla in Isiolo County. To date, some of these people have no Kenyan identification documents, which are vital for access to services such as opening a bank account, MPESA (mobile money) transactions, admission to tertiary education, and travel from rural villages to Isiolo town.

The securitisation of the region led to egregious human rights violations by state security agencies.

Government policy changed with the adoption of Sessional Paper No. 8 of 2012 on the National Policy for the Sustainable Development of Northern Kenya and other Arid Lands, which aims to address development imbalances, reduce poverty, manage violent conflict and ethnic strife, address climate challenges and make investments in the livestock markets sector among others.

Vision 2030

Isiolo County is referred to as the gateway to northern Kenya. Situated about 285Km from Nairobi, this once sleepy and dusty county now finds itself at the centre of Kenya’s development plans. In effect, the government has placed Isiolo at the heart of Kenya’s Vision 2030,  the country’s new development blueprint for transforming Kenya into “a newly industrialised, “middle-income country providing a high quality of life for all its citizens” by the year 2030.

Vision 2030 is perhaps an antidote to Sessional Paper no. 10 of 1965 on African Socialism and its Application to Planning in Kenya. This first post-independence development plan created a dichotomy of low potential and high potential regions, a logic that placed northern Kenya in the low potential region, with the result that it received little in the form of investment from the government.

The key pillars of Vision 2030 are mega-infrastructure projects, some of which are national and some of which are regional and involve Isiolo County. The county has been selected to host one of the three resort cities planned for northern Kenya and destined to become industrial, economic and tourist hubs. The other two cities will be in Lamu and Turkana. Other flagship projects are the proposed multi-billion-shilling Crocodile Jaw dam on Ewaso Ng’iro River on the Laikipia-Isiolo border, which is facing stiff resistance from the local communities and environmentalists due to fears that it will negatively affect over 3.5 million people and wildlife downstream.  Other already completed projects are the Isiolo International Airport and the Isiolo-Moyale highway.

Emerging conflicts

Isiolo’s strategic location makes it a regional transport hub linking northern Kenya to the rest of Kenya and to Sudan, Ethiopia, and Somalia through the multi-billion-shilling Lamu Port-South Sudan-Ethiopia-Transport (LAPSSET) corridor.

While these developments will undoubtedly spur Isiolo’s growth, they risk causing more conflict unless judiciously executed; the region already experiences ethnic strife, cattle rustling, cross-border conflict, land and boundary conflicts between Isiolo and the neighbouring counties of Meru, Garissa and Wajir, and there is a new simmering boundary tension with Marsabit and Laikipia counties.

The benefits expected to accrue from these investments have heightened tensions between Isiolo and the neighbouring Garissa and Meru counties, with each county laying claim to a road or an area. The likelihood of border conflict is therefore high with the planned construction of the US$750 million (KSh81 billion) Horn of Africa Gateway Development Project (HOAGD) — formerly the Northern-Eastern Transport Improvement Project (NETIP) — which is set to begin this year. Once completed, the road will link Isiolo to Garissa, Wajir and Mandera.

In his report LAPSSET The history and politics of an eastern African megaproject, Adrian J. Browne argues that Kenya’s optimism about the LAPSSET project is based on “conservative feasibility statistics”. According to him, large-scale infrastructure projects “could inject between 2% and 3% of GDP into the [Kenyan] economy” and even yield higher growth rates of between 8 and 10 per cent of GDP when fully operational. Such growth would be a game-changer and could transition Kenya into a middle-income country.

However, these projects have a dual impact on the community. First, for the pastoral communities whose livelihoods depend on uninhibited mobility of livestock and humans, these projects will interfere with their migration corridors. Secondly, these projects are being undertaken on land that has been taken away from the pastoralist communities, in some cases, on land that pastoralists use for grazing in times of acute drought.

While these developments will undoubtedly spur Isiolo’s growth, they risk causing more conflict unless judiciously executed.

The 6,500 acres of land at Kipsing Gap —  sandwiched between Katim Hill and Ol Doinyo Degishu Hill — about 20 kilometres west of Isiolo town, is where the multi-billion-shilling resort city will be established. However, the Kipsing Corridor is the area the communities fall back on during periods of drought.

Speculative land buying in anticipation of the large-scale infrastructure projects could potentially displace the local people. Large-scale infrastructure projects are also the source of fierce contestation between the local communities and even spiteful remarks between the county’s political leaders, with each claiming a section of the area where they believe a project will be implemented. Isiolo leaders have also claimed that they have little or no information about the project.

Community wildlife conservation

The Northern Rangelands Trust (NRT)-led conservation model is a hotly and passionately debated issue in Isiolo. Supporters of wildlife conservation argue that conservancies attract tourism and create employment opportunities for community members, improve security, expand the livestock market, and preserve open green spaces to create world-class recreation facilities.

Those opposed to conservancies challenge the prominence given to wildlife over pastoralism, and express fears over bio-piracy and the loss of potential grazing land. They also cite the risk of increased conflict, and the replacement of traditional resource governance institutions such as Deedha with ineffective structures.

The influence of the conservation sector is so entrenched within the political leadership such that government officials from the criminal justice system to the interior ministry are appointed to the NRT board, a move that is designed to legitimise its operations. Noordin Haji, Kenya’s Director of Public Prosecutions (DPP) has been proposed to sit on the NRT board, which is also scouting for a representative from the Ministry of Interior and Coordination of National Government.

Other individuals proposed to sit on the NRT board are Mbuvi Ngunze, the former CEO and Group Managing Director of Kenya Airways, Dr Betty Addero Radier, CEO, Kenya Tourism Board (KTB); Dr Julius Kipngetich, former Director and CEO, Kenya Wildlife Services (KWS); and Jarso Mokku, a respected Elder from Isiolo and the current CEO of Drylands Learning and Capacity Building Initiative (DLCI).

Mathew Brown, Managing Director the Nature Conservancy, Africa Division; Flora and Fauna International senior Director Joana Elliot; Mike Watson, CEO Lewa Wildlife Conservancy; and Kenya Forest Service, CEO Julius Kamau have also been Proposed to sit on the NRT board.

To entrench its existence further, the NRT is also suspected of having sponsored a “deformed” bill, the Isiolo County Community Conservancies Bill 2021, which was hurriedly formulated and adopted without public participation.

The Kenya Wildlife Service (KWS) was established in 1989 to conserve and manage wildlife. However, the NRT has grown in influence, outstripping the KWS through donor funding; the organisation has taken the lead in shaping Kenya’s wildlife conservation policies.

The NRT claims on its website to be a grassroots conservation outfit, building peace and conserving the natural environment. However, local communities in Isiolo blame the organisation for using the dreaded and well-trained 9-1 and 9-2 conservancy rangers to support Samburu raiders during inter-community conflict. An unpublished 2019 report produced by Waso Borana Professionals (WBP), Errant Natives and the Borana Council of Elders (BCE) provides details of documented gross human rights violations, unfulfilled promises, and compromised livelihoods due to loss of strategic water points and grazing lands.

Local communities in Isiolo blame the NRT for using the dreaded and well-trained 9-1 and 9-2 conservancy rangers to support Samburu raiders during inter-community conflict.

Deadly and violent conflict has been a feature of the region for decades, the feuding often driven by conflict over pasture and water and facilitated by easy access to Small Arms and Light Weapons (SALW).

But the proposed mega-infrastructure projects have now shifted the focus of conflict to disputes over land and boundaries, an emotive issue that reinforces the deep-rooted sentiments of regional exclusion and inequality.

If Kenya is serious about its development ambitions, the government must walk the talk and redeem itself from the earlier missteps of Sessional Paper Number 10 of 1965, which relegated northern Kenya to the periphery.

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

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

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

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

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

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

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

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

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

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

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

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

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

Cover-ups and impunity 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Pandora Papers Reveal the Dark Underbelly of the United Kingdom

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

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

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

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

British through and through

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

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

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

This complexity is no accident

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

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

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

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

A new era

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

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

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

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

This article was  first published by Progressive International

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