Connect with us

Op-Eds

Tigray Crisis: A Conversation With General Tsadkan Gebretensae, Tigray Defense Force Central Command

9 min read.

Will the ceasefire between Tigray People’s Liberation Front (TPLF) and the Ethiopian government’s bring lasting peace to Ethiopia?

Published

on

Tigray Crisis: A Conversation With General Tsadkan Gebretensae, Tigray Defense Force Central Command
Photo: TesfaNews
Download PDFPrint Article

Editor’s note: Gen Tsadkan Gebretensae is a key member of the Tigrayan Defence Forces Command and widely regarded as one of Africa’s best military thinkers and strategists. He was a former top Ethiopian army general. He is widely-regarded as one of the masterminds of Operation Alula which in late June 2021 led to major reversals for the Ethiopian army in Tigray. In this interview, conducted in Tigray on 6 July by The Elephant, Gen Tsadkan spells out his views on peace and the way forward for Ethiopia.

The Elephant: What is the context of what is happening in Tigray?

Gen Tsadkan: I don’t need to go back to the horrendous atrocities that have been committed against the people of Tigray by invading forces of Isaias and Abiy, but after the offensive, after what has happened recently, the Ethiopian government is in my opinion living in an illusion. It is an illusion that has been created by themselves. They tried to deny the reality on the ground. They tried to cheat the world by saying they have declared a unilateral ceasefire while they have been defeated. We decimated two brigades of their forces which were running away from Mekelle, so this nonsense of unilateral ceasefire is a drama that has been created by themselves. Instead, they should recognize the realities on the ground and come with a realistic solution. You cannot have a ceasefire at a time when you have already blocked every movement of goods and services. Ethiopian Airlines is not flying to Mekelle, there is no telephone, there is no internet, there is no power, there is no road transport, humanitarian aid has been blocked. He cannot talk about any unilateral ceasefire while trying to strangle the whole people of Tigray.

So, I think I would like the international community to understand the situation we are in. We have been very much restrained because we don’t want to be seen as if we are not accepting a political solution. The whole problem is not only in Tigray but in the whole of Ethiopia. We know the Government forces are almost finished but at the same time we are restraining ourselves for a realistic political solution to the whole problem. I would like the international community to understand this situation, that is the message I have now.

The Elephant: You were a part of the group that mediated between the PM and the TPLF before war broke out, what led you to break off that role?

Gen Tsadkan: You are right, myself and a group of prominent political individuals in Ethiopia have been trying to mediate. The basis of the interaction we had was to accept the existing Constitution of Multinational Federalism and resolve any other issue apart from it. In my interaction with the PM, it was very clear that he was looking for; (A) dismantling the Multinational Federalism, which brought Ethiopia together and (B) he was looking for a solution that is not a political peaceful solution but preparing himself for war. That was very clear for me in our last meetings. So I had to make a choice. I knew that the political solution to Tigray would not come, in my interactions with him. I was interacting with the President of Tigray, Debretsion Gebremichael. On the part of Tigray, I saw willingness to resolve the issue, as long as the Multinational Federal Constitutional Arrangement is respected. That was not the case with Dr Abiy Ahmed, so I had to take a position. And at the same time, there was no other choice. The Ethiopian Government invited foreign forces to invade our country, so the choice was either to surrender to foreign forces or Abiy’s forces, or join the resistance. I chose the latter.

The Elephant: Those final meetings you had with the PM, when was that, 2019 or 2020?

Gen Tsadkan: I think it was 2020. It was not 2019. We had several, we had some meetings earlier, precisely around three major meetings, but the last one was in 2020.

The Elephant: When did you specifically join the armed resistance?

Gen Tsadkan :It was after November.

The Elephant: Could you explain the relationship btw the TPLF, the TDF, the Government of Tigray and your position now?

Gen Tsadkan: The TPLF is the ruling party, the TDF is a word that has been coined, not in a negative sense but in a positive sense, during the resistance. The whole resistance is led by the Government of Tigray, not the TPLF, as a ruling party it might have its say but the resistance is led by the Government, the duly elected Government of Tigray. The Government of Tigray has established a Central Command which decides on all issues related to war and peace, all issues: political, diplomatic, military, economic issues, this body is chaired by the President of Tigray, Dr. Debretsion, and the military effort is one aspect of the resistance. I serve as a member of the Central Command in the structure that I have described, so the TPLF is the ruling party, the Government of Tigray is the one leading the resistance, through a structure called the Central Command that decides on all issues related to peace and war. The TDF, the Tigrayan Defense Forces, is an element in the whole structure that is being commanded by the Central Command. Below the Central Command there is a structure called the Military Command, the Military Command specifically directs and commands operations in the army. This is the arrangement.

The Elephant: Were you expecting to win control of Tigray so soon or even at all, did it come as a surprise to you?

Gen Tsadkan: No, it didn’t come as a surprise to me. In fact, I am on public record even before the war started telling people, you know, of all regions, the Region of Tigray is a region which shall not head for war but at same time is not scared of war. I know the history, I know the potential, when this thing started it was very clear that the most senior, most highly experienced commanders are from Tigray, which has been the backbone of the Ethiopian armed forces for the last thirty years, highly experienced because most of them have gone through two major wars, I very much know the military tradition of Tigray, so when you combine those two elements, highly experienced and skillful commanders and a society with a very deep military tradition, it only takes a short period of time to reorganize and regain control. That’s exactly what happened.

At the same time, this has been facilitated by the atrocities committed by the enemies of Tigray, that created a widespread opposition and dedicated of the youngsters to finish all this within a short period of time. When all those things came together, given the experience we had, we had to organize the fighting units, train the fighting units, and it was clear for us that when we get some time, we will create a very formidable fighting machine, and that’s what has happened.

The Elephant: how many POWs do you currently have?

Gen Tsadkan: I might miss some of the information, the latest information I have before five days is around more than 8000, the prisoners of war kept increasing, they might have increased a little bit. But that is the figure I know.

The Elephant: Do you want to say about plans for treatment of these POWs?

Gen Tsadkan: No, I don’t think there is anything in particular, I know my colleagues are in touch with the ICRC, and will handle them according to international law.

The Elephant: What is the current humanitarian situation? What actions are you hoping the International Community will take?

Gen Tsadkan: As has been described by the international media several times and by UN Agencies, the humanitarian situation is extremely dire. The Ethiopian Government is trying to aggravate this by blocking any connection with Sudan and any other corridor. Even they have blocked air communications. So the Government of Tigray and the Central Command have decided, I think it has been communicated, we are ready to accept any humanitarian assistance, ready to facilitate anything that the U.N. or any humanitarian assistance agencies would like to have, security, we will provide security to the areas we control, more than 90 percent of Tigray, we will comply with their requirements, so my message is, there is a huge need for humanitarian assistance and we are ready to accept any assistance, if the international community means business, let them come and do what is required to save lives in Tigray.

The Elephant: what will happen if the PM continues to refuse humanitarian access to your region?

Gen Tsadkan: Not only resisting humanitarian assistance to our region, but if he continues to do the way they are acting, that is, strangling Tigray, blocking power, electricity, internet, air transport, land transport, not only humanitarian assistance but to civilians as well, I think the Government of Tigray and the resistance in Tigray will be required to break its restraint, restraint from military activities, we know we have the capacity, we have increased our capacity, we know we can do what it takes to pressurize the government so if they continue behaving like the way they are doing, playing games, and trying to deceive the world with their illusions, the first consequence will be continuation of operations. We will be left with no other alternative except to resolve it militarily. We would like it to be resolved peacefully but if there is no other choice, then the next choice will be, try to resolve it militarily, and we know we are capable of doing that.

The Elephant: What is your timeline for that option?

Gen Tsadkan: No, I’m afraid to comment on this. We are watching the situation seriously.

The Elephant: are you prepared to negotiate peace with Abiy and with the Eritrean leader Isaias?

Gen Tsadkan: I think that’s an issue that we have to deal with when it comes. We have made our points clear on the last declaration of what we mean by a negotiated ceasefire, we have clearly indicated that we are for a negotiated ceasefire. In a negotiated ceasefire, issues are raised and we discuss to resolve them, but the process has to start.

The Elephant: Do you have anything to add to the conditions for the negotiated ceasefire that TPLF released on Sunday?

Gen Tsadkan: No, I was part of the Central Command that drafted that list and I’m happy with it.

The Elephant: Do you have any message for Ethiopians as a whole?

Gen Tsadkan: I would like to say it’s very sad that our country Ethiopia is in such a situation. We were forced to act the way we did, because of the Central Government in Ethiopia, is in our opinion directed by Asmara, by Isaias, Isaias’ security forces, intelligence forces are operating in Ethiopia day and night. I hate this kind of situation to prevail in Ethiopia, but at the same time, it is sad to see that Ethiopians are just accepting the behavior of the Central Government, but I would like to say that even though so many atrocities have been committed, it’s not led to resolve our issue peacefully and politically. So, when Ethiopians come out of the illusion that the Prime Minister has created, the reality on the ground is completely different, let Eritreans get out, not only from Tigray, but from all of Ethiopia. Let Ethiopians set their own trajectory themselves.

Eritrea has a heavy hand, heavy presence not only in Tigray but in Addis Ababa and all over Ethiopia as well.

The Elephant: What are the battlefield developments, status of Western Tigray?

Gen Tsadkan: It’s very clear that Amhara forces are in Western Tigray, it’s obvious that they are preparing to face us. So, we’ll handle it the way they would like to handle it.

The Elephant: Does that mean you are waiting for them to act, you’re not going to push it?

Gen Tsadkan: No, I didn’t say anything, it is a military situation and we will see the situation and act according to what is warranted militarily for us

The Elephant: have the ENDF and Amhara forces retreated to other side of Tekezze River?

Gen Tsadkan: They have already blown up bridges, it is very clear that it’s a continuation of the policy of Abiy Ahmed to strangle Tigray and take away a Constitutionally recognized geographic region of Tigray to another area. So, they are preparing themselves across the river. That, we know.

The Elephant: Do you see the capture of Mekelle as a turning point that will lead to a speedy end to conflict or is it opening up a new front in the war, in the north and west?

Gen Tsadkan: It all depends upon the central government of Ethiopia and its partner Isaias, it could be, it’s very clear that they cannot win the war. The capture of Mekelle and the defeat of the Ethiopian army clearly shows if there was any doubt, that they cannot win this war. On the other hand, the people of Tigray have been under huge atrocities of all kinds, have stood and resisted. The war will continue growing. Even the military experience and the political nature of the just cause of the war, it will keep on growing. So the capture of Mekelle would signal a huge political message to Abiy, to come to his senses and then resolve the political situation not only in Tigray but in all of Ethiopia peacefully, sooner. It has signaled that he cannot get his way by force, that is what he wanted, he could not, he mobilized not only his forces but other forces as well, he mobilized all of the army of Eritrea, he mobilized the technological capacity of the UAE, that did not work. So, for us, we were not craving for war. We wanted a peaceful solution from the very beginning. And it is now after the defeat of Abiy’s forces we are saying, let’s have a negotiated ceasefire. But Abiy and the Amhara elites can resist this, can say no, we’ll have our way by military means, if that is their choice, we’ll see. So it all depends on how they will react. The sooner they come out of their illusion that they have created, that they are riding victory after victory, it will be better for all of Ethiopia and Tigray as well. As long as they live with that illusion, and trying to mobilize innocent peasants and bringing them as cannon fodder to the new fronts that have been created in southern and western Tigray, then the war will continue.

The Elephant: Are there any splits within TPLF, on any topics such as engaging the government, or are you pretty united?

Gen Tsadkan: Pretty united. Obviously, there are different opinions on how the political situation should be resolved, and resolved once and for a durable period of time. But that is for Tigrayans to discuss among themselves and resolve. That is the situation. On the issue of you know defeating the invaders, and coming to a lasting political situation, there is complete unity.

The Elephant: is there anything you would like to share about journey of your life, as someone who fought against Dergue and toppled it?

Gen Tsadkan: I would like to say that I am a product of the people of Tigray. The struggle and the pain that the people of Tigray have went through have created people like me, not only me, several like me. So, when all these things are done, I hope some people will have a lot of time, I will have time as well, to go through all this. But for the time being, as I said, I am the product of the struggle and the pain of the people of Tigray.

Thank you very much.

Support The Elephant.

The Elephant is helping to build a truly public platform, while producing consistent, quality investigations, opinions and analysis. The Elephant cannot survive and grow without your participation. Now, more than ever, it is vital for The Elephant to reach as many people as possible.

Your support helps protect The Elephant's independence and it means we can continue keeping the democratic space free, open and robust. Every contribution, however big or small, is so valuable for our collective future.

By

The Elephant is a platform for dialogue, discovering the pursuit of Truth, epitomized by a willingness to re-imagine state and society.

Op-Eds

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.

Published

on

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

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.

Continue Reading

Op-Eds

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.

Published

on

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

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.

Continue Reading

Op-Eds

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.

Published

on

The Pandora Papers Reveal the Dark Underbelly of the United Kingdom
Download PDFPrint Article

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

Continue Reading

Trending