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The Unjust Valuation of Pastoralists’ Land in Kenya

10 min read.

The government has passed laws that routinely undervalue pastoralists’ land and undermine pastoralism as a system of production and main source of livelihood in the drylands.

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The Unjust Valuation of Pastoralists’ Land in Kenya

Kenya’s constitution classifies all land in Kenya as either public, community-owned or private. More than 65 per cent of Kenya’s landmass is estimated to be community land. Such land is occupied and used mainly by the pastoralist communities in the northern drylands of Kenya. This area produces roughly 89 per cent of the beef produced in the country; mutton and chevron are not included in the government statistics. Beef is by far the most popular meat consumed in Kenya. It represents more than 70 per cent of all the meat consumed by volume due to urbanisation and a growing demand from the middle class in Kenyan cities.

Pastoralism, as practiced on the unregistered community lands by the indigenous people in Kenya, is of significant economic worth. The annual national pastoralist livestock offtake was valued at US$0.189 billion, while the yearly meat offtake was estimated at 154,968 tonnes and valued at US$0.389 billion. There is consensus that pastoralism contributes about 13 per cent of Kenya’s Gross Domestic Product (GDP), with approximately 13 million people directly benefiting from the livestock value chain. Over 75 per cent of cattle herds in Kenya are kept by pastoralists, who supply the bulk of the meat consumed.

But the economic contributions of pastoralists are hardly reflected in the government’s strategies or national development plans. As a result, pastoralism continues to face setbacks that hinder the realisation of its full potential. Further, the absence of accurate or, in some cases, the use of outdated data and inappropriate valuation methods, leads to an underestimation of the contribution of pastoralists to the economy.

The constitution protects a person’s right to own property individually or in association with others without any form of discrimination. Further, the state cannot deprive any person of their property or interest in a property unless it is in accordance with the constitution and the established statutory law.  In the case where land, whether registered or not, is compulsorily acquired by the state for a public purpose or in the public interest, the constitution requires that it be done on the principles of just compensation and prompt payment of its total value.

Pastoralists rarely obtain just compensation for land acquired compulsorily by the state because the system of community land valuation is unjust towards the people.

Community land governance

The Land Act 2012 is the primary framework that governs public and private land administration and management while community land governance is addressed under the Community Land Act 2016.  The Community Land Act repealed the Land (Group Representatives) Act (Cap 287) and the Trust Lands Act (Cap 288), which previously provided for the administration and management of community lands in Kenya.

The Community Land Act defines a community as a consciously distinct and organised group of users of the community land who are citizens of Kenya and share common attributes. These attributes are common ancestry, similar culture or unique mode of livelihood, socio-economic or other similar common interests, geographical space, ecological space, or ethnicity.

Pastoralists rarely obtain just compensation for land acquired compulsorily by the state because the system of community land valuation is unjust towards the people.

The Community Land Act 2016 provides for the recognition, protection, and registration of community land rights. Community land in Kenya is owned and vests the power to appropriate in the community. The Act further stipulates that the communities shall hold the communal land as family or clan land, reserve land, or any other category of land recognised under the Act or other written law. In addition, community land can be held in land tenure systems such as customary, freehold, leasehold or any other tenure system recognised by law. Community land includes all land owned by the former group ranches, community forests, grazing areas, shrines, land traditionally held by hunter-gatherer communities, land lawfully held as trust land by the county governments, and any other land legally declared to be community land by law.

Any parcel of community land that is not registered under the Community Land Act remains unregistered community land to be held in trust by the county governments on behalf of the communities. The county is prohibited by the Community Land Act from selling, transferring or disposing of any parcel of unregistered community land or even converting it into private Land.

Compulsory land acquisition

The statutory provisions under the Land Act 2012 guide the determination of compensation for compulsorily acquired community land rights. In addition, subsidiary legislation in the form of rules to guide assessment for just compensation has been developed by the National Land Commission (NLC) and approved by the national parliament.

The Kenyan government introduced an unfair adjustment to the Land Value Index Laws Amendment Bill 2019 that was hurriedly passed by both houses (the National Assembly and the Senate) and assented to by the president. The Land Value Amendment Bill aimed to amend various sections of the Land Act 2012, the Land Registration Act 2012, the Prevention, Protection and Assistance of Internally Displaced Persons and Affected Communities Act, and provide for the assessment of Land Value Index with regard to compulsory land acquisition. Pastoralist communities raised concerns through the Kenya ASAL Advocacy Group (KAAG) regarding the amendment’s serious implications for the just and fair compensation for pastoralist rangelands.

The amendment effectively entrenched unfair government policies and practices that include zero-rating the value of pastureland and legitimised unjust compensation practices of acquiring community land by keeping secret the full appreciation of the rangeland value. 

Moreover, parliament passed the Land Value Index amendment law without the usual scrutiny by the members of the Pastoralist Parliamentary Group (PPG). The PPG is the largest parliamentary caucus representing the pastoralist communities of 15 counties in Kenya. The members of the national parliament founded the PPG to provide political leadership and protect and safeguard the interests of the pastoralist people at the national level.

By the passing such laws and policies, the government routinely undervalues and undermines pastoralism as a system of production and main source of livelihood in the drylands. Government statistics undervalue land used by the pastoralists, contributing to higher poverty indices and environmental degradation in the pastoralist region. Government-generated indices and valuation models do not capture the total value of rangelands and their uses, violating the constitutional protection of the pastoralist communities’ right to its common property.

Valuation practice in Kenya

The valuation practice in Kenya is governed by the Valuers Act Cap 532, which provides a Valuers Registration Board that regulates registered valuers’ activities and conduct. Any person registered by the board must be a full member of the Institution of Surveyors of Kenya (ISK).

Being members of the ISK, valuers in Kenya are required to subscribe to the International Valuation Standards (IVS) set by the International Valuation Standards Council. These standards specify the concepts, approaches, and bases for undertaking valuation in Kenya. The standards, guidelines, principles, and ideas are expected to promote consistency and transparency in valuation practice in Kenya. The standards prescribe three approaches that underpin these valuation methods: the market approach, the income approach and the cost approach.

The government’s statistics undervalue land used by the pastoralists, contributing to higher poverty indices and environmental degradation in the pastoralist region.

The market approach derives the value of an asset by comparing the asset with comparable (similar) assets for which sale price information is available. It assumes all assets are sold and bought in an open market. The income approach establishes value by converting future cash flow from an asset to a single present value, taking account of time value for money. It assumes assets are held for investment purposes.

The cost approach seeks to determine the value of an asset using the economic principle that a buyer will pay no more for an asset than the cost to obtain an asset of equal utility, whether by purchase or by construction in normal circumstances. Based on the foundations of these approaches, the following valuation methods have been variably applied in the valuation of assets in Kenya: Direct Sales Comparison (Comparable); Income Capitalization (Investment); Profits (Accounts); Replacement Cost; Reproduction Cost; summation (Contractors).

Valuation in community rangelands in Kenya

What is to be valued?

Valuation of community lands can be located from the constitution’s definition, which, as stated earlier, holds that community land include land registered in the name of group representatives (group ranches); land lawfully transferred to a specific community or declared to be community land by an Act of Parliament; land lawfully held, managed or used by specific communities as community forests, grazing areas or shrines; ancestral lands and lands traditionally occupied by hunter-gatherer communities; and land lawfully held as trust land by the county governments. On the face of it, the issue seems straightforward enough, but the practical disaggregation of attributes and interests in context is complex and displays excellent heterogeneity.

Turkana community system

The topography of Turkana County is varied, comprising of lowlands, plains, and mountains. The soils are sandy, volcanic, clay, alluvial and mixed types. There is fertile farming land (both irrigated and non-irrigated) on the lower Turkwel river basin, grazing pasture lands, forests, wildlife areas, caves and historical sites, mining and petroleum production areas, fishing sites, and beekeeping sites. Land use outside the urban areas varies depending on the ecological and geological characteristics, cultural and traditional practices, and government and non-governmental influences.

Significant land use practices include livestock keeping, fishing, subsistence farming, beekeeping, hunting and gathering, mining, cultural ceremonies and social gatherings, worship, tourism, and forestry. These uses may change depending on the seasons and climatic conditions.

Farming land is, for instance, converted to grazing land during the dry season and after crops have been harvested. The physical extent of community land is not defined by conventional administrative or cadastral boundaries but on cultural, use and control bases. Cultural definitions of boundaries vary depending on the rights under consideration. For instance, the more significant territorial boundary includes the areas occupied by the nineteen (19) Turkana subgroups (the outer boundary). Each of the subgroups also has its boundaries within the area that is covered by the external boundary. Families also have their boundaries defined by trees under the Ekwar system.  Individuals also have control areas known as Eree. 

The Turkana cultural property rights over this land are a continuum that includes territorial control, and ownership is collective. All subgroup use and control, family use and control, Individual use and control, individual ownership and control in irrigation schemes, access for members across and within subgroup-controlled areas, access and use by neighbours and friends of families for some resources such as water from wells (Akare) and use by neighbouring communities outside the territorial boundary, migratory rights, all these rights are exercised within customary rules and regulations that are not in writing but are well known and respected by all community members.

Community land ownership and management in Marsabit County

The land within Marsabit County comprises diverse landscapes, including high altitude mountains with rain forests, other forests, farmlands, grasslands, deserts, lakeshores and desert oases. The landscapes are characterised by volcanic, loamy, sandy and clay soils, and rock outcrops. Significant land uses vary across these landscapes and include livestock keeping, fishing, subsistence farming, hunting and gathering, social and cultural activities including traditional religious practices, extraction of traditional medicines and herbs, forestry, tourism and wildlife.

Some areas have mixed uses, like agro-pastoralism, while others have a specific use such as pastoralism. The land outside the municipal territory is traditionally owned by four specific ethnic communities: Borana, Rendille, Gabra and El Molo. Each of these communities has different territorial zones that they have historically controlled and used. The boundaries of the territorial zones are identified by geographical features that are historically acknowledged and known and respected by all. The land is not under a formal cadastral and land administration system.

Each of the communities has a different cultural background and clear customary rules governing land use and occupation.

Despite the various communities having distinct land control and ownership rights, they have developed reciprocal use rights for pastureland and water resources. The elders of the respective communities administer the customary practices. The clans, families and individuals in these communities have collective ownership rights, occupation rights, and user rights for pasture and other natural resources in the rangelands.

Families also have their boundaries defined by trees under the Ekwar system.

The community exercises control over any settlements even though it practices pastoralism that is characterised by temporary settlements. As a rule, communities may not graze in one area for more than three months continuously to avoid degradation. Permanent settlements are mainly found in the urban areas and market centres.

Neighbouring communities have mobile access and use rights subject to the customary rules and regulations of the host communities that are often overseen by individual elders appointed by the community’s traditional council. The various landscapes have different uses at different times. For instance, the desert is used for grazing during the rainy season, whereas the highlands are used for grazing during the dry season. All communities share the oases through appointed community regulators. At times cultural events affect land use. For instance, the circumcision period among the Rendille community may dictate where the animals, especially the camels, will be allowed to graze. The land is viewed as a symbol of community identity and the physical features of historical and cultural events.

The Dheda system of the Borana of Isiolo County

The Merti rangeland comprises the areas outside Isiolo central, which are largely dry season grazing areas. There are also wet season grazing areas, small subsistence farming areas, several small pastoralist towns with markets, and one growing urban settlement. The Borana people classify areas using the term Dheda.

The landscape is primarily savannah grassland with some hills and plateaus and varying vegetation cover. The soils are mainly sandy and mixed soils. The dominant land use is livestock keeping, complemented by small-scale subsistence farming along the Ewaso Nyiro riverbank, social amenities, and cultural and traditional shrines. In addition to these uses, the land is the central defining feature for community identity and the foundation of the traditional livestock production system (pastoralism).

The boundaries for the rangelands are determined by geographical features that are historically recognised by the communities, such as hills, seasonal rivers, rangeland water points and other types of rangeland resources related to pasture within each Dheda.

The clans, families and individuals in these communities have collective ownership rights, occupation rights, and user rights for pasture and other natural resources in the rangelands.

The rangeland is mainly occupied and controlled by the Borana community. The clans, families and individuals do not have direct control over the rangelands. Elders govern it on the basis of customary rules and regulations. Families and individual members have user and access rights.  Community members cannot dispose of land by sale or exchange since the land is considered an intergenerational community asset. Neighbouring communities from Marsabit, Wajir, Garissa and Samburu have migratory use and access rights that are defined by the Borana community’s rules and regulations. These rights are seasonal, and the neighbouring communities cannot establish permanent settlements in the grazing areas.

There are community boreholes situated in different locations to provide water for both livestock and people. They are controlled by elders to avoid use during unauthorised seasons or as a disincentive to permanent settlement. This ensures that the grazing patterns are maintained to prevent land degradation or depletion of pasture before the onset of the rainy seasons.

From the case studies of these three communities, it is clear that the subject of valuation should vary across these different communities taking into account their specific customs and practices, the physical attributes of the land, and the region’s economic activities. The valuation should have legal, economic, social, cultural and environmental dimensions that will vary depending on the purpose, the community’s context, and timing. Community land valuation variables are not only influenced by the host community but also by the interests of neighbouring communities, including access, user rights and their social-economic activities. Some of these variables, such as those related to culture and spiritual practices, may not be directly quantifiable in the national valuation framework.

Neighbouring communities from Marsabit, Wajir, Garissa and Samburu have migratory use and access rights that are defined to the Borana community’s rules and regulations.

Besides state interests and frameworks, the rights and tenure arrangements that comprise the subject of valuation also contain several bundles that include individual, family, clan, ethnic subgroup, ethnic group and neighbouring ethnic groups. In the process of valuation, the physical scope should be ascertained by social mapping that considers cultural and social dynamics. However, the government’s current cadastral system does not allow for this. 

In light of the foregoing, it is necessary to review how community land valuation for the purposes of compulsory land acquisition is done in Kenya. Whether relying on real estate background, livelihood safeguards or ecological management, the statutes that guide valuation in the case of compulsory community land acquisition by the state must adopt new guidelines that comply with constitutional requirements and legal and policy changes.

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Jarso Mokku is the Chief Executive Officer (CEO) of the Drylands Learning and Capacity Building Initiatives (DLCI). A Kenyan NGO Promoting the Resilience of the Drylands Communities through Policy and Practice Change in the Horn of Africa and East Africa.

Politics

Secret Assets Revealed by the Pandora Papers Expose Uhuru Kenyatta’s Family

The Kenyatta family has ruled one of Africa’s largest economies for decades. But to the Swiss advisers who helped them funnel wealth into tax havens, they were ‘Client 13173’.

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Secret Assets Revealed by the Pandora Papers Expose Uhuru Kenyatta’s Family
Photo: Getty Images

As Uhuru Kenyatta mounted a political comeback by campaigning against corruption, his family’s secret fortune was growing offshore, a massive new leak shows.

At his annual State of the Nation address last fall, President Uhuru Kenyatta mounted the podium at Kenya’s Parliament to acknowledge that too many Kenyans live in poverty and too many officials loot the country’s public resources.

The son of Kenya’s first president and leader of one of Africa’s largest economies, the 59-year-old Kenyatta urged lawmakers to join him in fighting corruption and yet again declared “the centrality of transparency, accountability and good governance as the anchors of sustainable development.”

But a massive cache of newly leaked documents show that Kenyatta’s family has for years been secretly accumulating a personal fortune behind offshore corporate veils.

Kenyatta, along with his mother, sisters and brother, have for decades shielded wealth from public scrutiny through foundations and companies in tax havens, including Panama, with assets worth more than $30 million, according to records obtained by the International Consortium of Investigative Journalists and shared with more than 600 reporters and media organizations around the world.

The records – from the Panamanian law firm Aleman, Cordero, Galindo & Lee (Alcogal) – show that the family  owned at least seven such entities, two registered anonymously in Panama and five in the British Virgin Islands. One BVI company owned a home in central London, according to the records, and two other companies held investment portfolios worth tens of millions of dollars. The Kenyattas’ offshore wealth, revealed here for the first time, represents part of an estimated half-billion-dollar family fortune amassed in a country where the average annual salary is less than $8,000 a year.

The family began to accumulate much of its offshore wealth while Uhuru Kenyatta was a rising political star. Two offshore companies were created during an investigation into alleged looting of the public treasury during the watch of President Daniel arap Moi, Kenyatta’s former political patron.

Under Kenyan law, the president must provide a list of financial interests to the Ministry of Finance each year. Kenyatta and his family members did not respond to requests for comment, including whether he declared any offshore interests or was required to do so.

Details of the Kenyatta family’s offshore wealth have been brought to light by the Pandora Papers, a collection of more than 11.9 million records from 14 law firms and other service providers based in the United Arab Emirates, the Seychelles, Panama, Singapore and other tax havens.

The investigation has revealed assets of 35 current or former world leaders, including the king of Jordan, the prime minister of the Czech Republic, and Kenyatta’s fellow African leaders Ali Bongo Ondimba of Gabon and Denis Sassou-Nguesso of the Republic of Congo.

The discovery that Kenyatta and his family owned Panamanian foundations and a string of shell companies provides a jarring contrast to Kenyatta’s projected image as a transparency advocate. Documents show that the expansion of the Kenyattas’ offshore holdings coincided with Uhuru Kenyatta’s political rise, with increasing the layers of secrecy to shield the family’s wealth from scrutiny even as Uhuru solidified his role as a man of the people.

The ‘burning spear’

The story of the Kenyatta family fortune, with its various companies and foundations in tax havens, begins with an ambitious tribal scion who would become one of post-colonial Africa’s most iconic leaders: Jomo Kenyatta.

Uhuru Kenyatta’s father was born Kamau Ngengi circa 1894 in the fertile Central Highlands of what was then known as British East Africa. Kamau’s father was a village chief in the powerful Kikuyu tribe, in a country where tribal affiliation often determines the outcome of elections. Educated at a Christian mission school, the young Kamau signaled his ambitions by taking the name Jomo Kenyatta, a local word for  “burning spear.”

At the start of the 20th century, a British colonial government tightened its grip on the region’s non-white population. A “hut tax” was imposed on people with little or no money, many of whom depended on their crops and livestock for survival. Some were driven to prostitution or consigned to forced labor.

Like many of his contemporaries, Jomo Kenyatta rebelled.

“Nothing is more important than a correct grasp of the question of land tenure,” Kenyatta wrote in 1938, while attending university in London.  “For it is the key to the people’s life.”

Jomo Kenyatta returned home to lead a pro-independence party and was quickly imprisoned by the British on unfounded and politically motivated charges that he led the nationwide rebellion then underway. When he left prison nearly nine years later, Jomo took charge of independence negotiations, and, in 1963, Kenya gained independence, with Kenyatta as prime minister. In 1964, he became the country’s first president, and he presided over an economic boom that burnished the country’s reputation as a post-colonial model.

But instead of building democracy, Kenyatta turned the fledgling nation into a one-party state marked by arbitrary detention, torture and political assassination. Promised land reform became a land grab: Kenyans found that property had simply changed hands from European elites to Kenyatta cronies.

A United Nations-backed commission would later find that in two years, one-sixth of all properties previously held by Europeans, including “vast farms” and valuable coastal real estate, were “cheaply sold” to Kenyatta, his family and his allies. According to the final 2013 report of Kenya’s Truth, Justice and Reconciliation Commission, beneficiaries included Kenyatta’s fourth and most influential wife, Ngina, their children, including Uhuru, and Moi, Kenya’s vice president at the time.

“Throughout the years of his administration, both land grabbing and irregular land allocations were perpetrated by and for the benefit of the president himself, members of his immediate family, his relatives and friends,” the report  declared.

Following Jomo Kenyatta’s death in 1978, in his 80s (his date of birth is unknown), Moi took over as president, as a result of complex negotiations designed to head off tribal feuds.

Former Kenyan president, Daniel arap Moi. Image: Pedro Ugarte/AFP via Getty Images

Former Kenyan president, Daniel arap Moi. Image: Pedro Ugarte/AFP via Getty Images

After an attempted 1982 military coup, Moi plunged Kenya deeper into authoritarianism, and over more than two decades, he looted more than $2 billion, a government-commissioned investigation would find.

Protected by their ties to Moi and by Jomo Kenyatta’s aura as father of the nation, the Kenyattas thrived.

Uhuru’s mother, Ngina, popularly known as “Mama Ngina,” was given 264 acres over decades, according to a later government probe, which recommended that the landholdings be revoked.

With vast landholdings and backing from international investors, the family built a business empire, acquiring large stakes in well-known Kenyan enterprises, including a media conglomerate,a major bank and upscale hotels.

In 1993, the family founded Brookside Dairy, which expanded across East Africa and is now Kenya’s largest milk producer. One of Jomo and Ngina’s daughters, Kristina Wambui-Pratt, became a shareholder in a company that builds housing from polystyrene panels. Another, Anna Nyokabi Muthama Kenyatta, married a gem-mining magnate and managed the Kenyatta family’s beachfront hotel. A discreet and camera-shy son, Muhoho, now controls the family’s finances, according to local media reports.

But none of Jomo and Ngina Kenyatta’s children rose faster or farther than Uhuru.

Named after the Swahili word for freedom, Uhuru played rugby (and socialized with Moi’s eldest son, Gideon) at a Nairobi private school.  He graduated from Amherst College, an elite U.S. liberal arts institution, in 1985 and returned home to launch an agricultural business and enter politics. He became the chairman of a local political party in 1997, and Moi named him to lead the country’s tourist board.

Uhuru burnished his everyman bona fides by dancing in public, while managing to indulge an equally public taste for expensive watches.

In 2001, Moi appointed Uhuru Kenyatta to a vacant seat in Parliament and, a month later, to the cabinet. Under increasing internal and international pressure to retire at the end of his second term, as required by the Kenyan constitution, Moi tapped Kenyatta to run as his successor in the 2002 election, betting on the Kenyatta name and tribal connections. But a coalition of reformist opposition parties crushed the Moi-Kenyatta alliance, relegating the 41-year-old Kenyatta and his party to the opposition .

The new president, Mwai Kibaki, ordered a probe of the Moi administration and the insiders who had helped spirit money out of East Africa.  He appointed Kroll Inc. – the private investigation firm that had unearthed the financial secrets of Iraq’s Saddam Hussein and Haiti’s Jean-Claude “Baby Doc” Duvalier, among others – to lead the inquiry.

Kenyatta was on the front lines of those who rallied to Moi’s defense.”The government should stop digging into the past,” Kenyatta told a rally of Moi supporters in western Kenya’s verdant Rift Valley near Lake Victoria.

But within a year, a leaked version of the Kroll report spilled into the headlines with blockbuster allegations: Moi and his inner circle had embezzled as much as $2 billion – more than twice what Kenya was receiving in foreign aid in a year — and stashed hundreds of millions of dollars in bank accounts overseas. The report alleged that Moi and his associates “laundered” and “parked” perhaps $400 million in accounts at Geneva’s Union Bancaire Privée and elsewhere. Kenyatta was not named in the report.

According to the report, the looting peaked in late 2003 after the new government took power. “A marked flurry of activity has been reported among ex-President Moi’s family and their close associates to pre-empt any possibility of losing their wealth to the government,” Kroll reported.

Moi denied wrongdoing and officials quickly announced that he would face no charges in exchange for a smooth transition of power. But the Kroll investigation’s linking ill-gotten wealth to Switzerland and Panama devastated his political legacy, and it raised questions about who else may have benefited from the regime’s looting.

Client 13173

One of the largest private banks in Switzerland,  Union Bancaire Privée advises some of the world’s wealthiest people on how to manage their money. Its eight-story glass headquarters overlooks Lake Geneva and the nearby Prada, Versace and Mont Blanc storefronts.

Union Bancaire Privée offices in Geneva, Switzerland. Image: Raymond PIAT/Gamma-Rapho via Getty Images

Union Bancaire Privée offices in Geneva, Switzerland. Image: Raymond PIAT/Gamma-Rapho via Getty Images

Like other private banks, Union Bancaire Privée often works with law firms in the British Virgin Islands, the Seychelles and other secrecy jurisdictions to create, register and maintain shell companies – which are without real operations and which list paid stand-ins as corporate officers on official paperwork – and similar entities that help clients conceal their ownership and wealth.

Some “offshore” clients are private citizens seeking to avoid taxes in the country where they live or acquire their wealth. Other clients are politicians and public officials, who are called “politically exposed persons” in the trade, because their wealth is deemed more likely to  stem from bribery or other forms of corruption.

In July 2003, the same month that Kenyatta defended Moi in public, records show that a Union Bancaire Privée lawyer, Othmane Naïm, asked Panama offshore specialists to help register a new foundation, to be known as the Varies Foundation. The foundation, like a trust, was designed to manage and shelter wealth for its beneficiaries.

Draft bylaws, also from July 2003, name the foundation’s beneficiaries: Uhuru Kenyatta and his mother. Later, records show, Union Bancaire Privée helped manage a foundation for Uhuru’s brother, Muhoho.

Invoices from Alcogal in Panama to the bank show that the Swiss advisers referred to the Kenyattas with a code: “client 13173.”

As with trusts and foundations offered elsewhere, including Belize (also South Dakota and Nevada),  Panama foundations can be designed to allow families to transfer wealth from one generation to another, tax free. Typically, an individual, or “founder,” transfers assets, such as a bank account or real estate, to the foundation, which becomes the assets’ legal owner.

Panamanian foundations are prized, like trusts, because those who create them, the true owners of the assets, are not required to register their names with the Panamanian government. That secret remains with their lawyers. Any breach of confidentiality laws carries a jail sentence of up to six months, the same sentence imposed in Panama for certain categories of child abuse.

According to a World Bank study, foundations are a common tool to mask dirty money. Ferdinand Marcos, autocratic president of the Philippines, is alleged to have stolen billions of dollars while he ruled the country from 1966 to 1986, funneling millions through a Panamanian foundation.

Alcogal said that it complies with requirements where it operates and “performs enhanced due diligence on a client who is determined to be a high-risk customer.” It told ICIJ’s media partner, Finance Uncovered, that it has not provided services to the Kenyattas’ foundations since 2014.The foundations were eligible for suspension under Panamanian law for failing to pay annual taxes, Algocal said.

Naim told ICIJ that he could not respond to specific questions, but said “we always complied with all applicable legislations and regulations.”

The Pandora Papers reveal the Kenyattas also secretly owned offshore shell companies.

Muhoho Kenyatta owned three registered in the BVI, according to records: One had a bank account that held an investment portfolio worth $31.6 million in 2016; another had unspecified investments at a bank in London.

From 1999 to 2004, Ngina Kenyatta and her two daughters held shares in a BVI company, Milrun International Ltd. The sisters used the company to buy a London apartment in the upscale Westminster neighborhood, according to records.

Similar apartments in the modern brick building now sell for more than $1 million. The apartment was rented until July by an English member of parliament, Emma Hardy, according to public records. Hardy’s attorney said that she signed an ordinary rental agreement and had never heard of the company involved.

Return to power

Following elections in 2007, a sharply divided Kenya was under another coalition government, and, with part of the family fortune secreted offshore, Uhuru Kenyatta mounted a comeback, assuming a new political persona. The populist had become an anti-corruption reformer.

In public, Kenyatta vigorously espoused transparency, and anti-corruption activists praised him for his fight against graft.

When he ran for president a second time, in 2013, he toured the country, repeating seven “key pledges,” including food, water and electricity for all. He also promised security on the nation’s restive border with Somalia and stringent anti-corruption measures, including new laws and agencies to probe and punish wrongdoers.

“It is time to get tough on those who seek to use their positions of power for their own personal gain,” a coalition of four political parties, including Kenyatta’s, declared in their coalition manifesto.

That year, at the age of 51 and after decades of grooming, Uhuru Kenyatta was elected president.

In his first State of the Nation address, Kenyatta promised honest government and offered to forgo 20% of his salary.

Meanwhile, Forbes magazine, in 2011, ranked Kenyatta as Kenya’s richest person and the 26th wealthiest in Africa, estimating the family fortune at about half a billion dollars. And Kenyatta, as president, fought to keep some things secret.

Two months after Uhuru Kenyatta won the 2013 election, the same commission that examined corruption as far back as his father’s presidency reported testimony that Jomo Kenyatta had acquired vast tracts of land through illegal means. The commission also found that the elder Kenyatta had “interfered in the investigation” of the assassination of a political rival.

A furious Uhuru Kenyatta demanded a retraction, albeit only about land deals that cast suspicion on the origins of the family’s empire. After a heated debate, in which several commissioners refused to comply with Kenyatta’s demand, the majority retracted references to the deals and issued a revised report.

“Protecting the wealth and economic power of the family today seemed more important to the Kenyatta family than the implication than their father was involved in the cover-up of a murder,” Ronald Slye, one of the dissenting commissioners, recalled in an interview with ICIJ.

As Kenyatta approaches his constitutional two-term limit next year, He increasingly has staked his legacy on transparency.

“What we own, what we have, is open to the public,” Kenyatta told the BBC in 2018, referring to his family’s wealth. “If there is an instance where somebody can say that what we have done has not been legitimate – say so.”

He continued: “Every public servant’s assets must be declared publicly so that people can question and ask, what is legitimate? If you can’t explain yourself, including myself, then I  have a case to answer. If you want to continue serving, you must make it public. Period.”

This article was first published by ICIJ.

Contributors: John-Allan Namu (Africa Uncensored), Purity Mukami and Simon Bowers (Finance Uncovered)

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Politics

Pandora Papers: Leak Exposes the Hidden Fortunes of World Leaders and Criminals

As revelations of offshore abuses by elites continue to pour out, there is a growing realization around the world that there is “one set of rules for them, and another set of rules for everybody else”.

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Pandora Papers: Leak Exposes the Hidden Fortunes of World Leaders and Criminals
Photo: James O'Brien, OCCRP

On April 29, 2009, the tenants of a strip of shops and offices on Maddox Street in London’s exclusive Mayfair neighborhood woke up with a new landlord: an 11-year-old boy.

This news should have been surprising. Not only was Heydar Aliyev not yet in his teens, but he also happened to be the son of Azerbaijan’s authoritarian president, Ilham Aliyev. And yet, he had managed to become the owner of 33.5 million pounds (US$ 48.9 million) of prime commercial real estate in the heart of London.

But the tenants on Maddox Street had no chance to be surprised — because they had no way of knowing who really bought their building. And, until today, neither did the rest of the world.

On paper, the owner of the property was a company, Mallnick Holdings S.A., set up in the British Virgin Islands. The fact that it had been acquired by an associate of President Aliyev and then handed over to his young son was hidden, thanks to the Caribbean territory’s strict corporate secrecy.

The strip of commercial property bought by the Aliyevs on London’s Maddox Street. Credit: Will Jordan / OCCRP

The strip of commercial property bought by the Aliyevs on London’s Maddox Street. Credit: Will Jordan / OCCRP

The deal is just one example of the miraculous secrecy enabled by offshore finance: a thriving, global industry of formation agents, bankers, lawyers, and accountants that helps hundreds of billions of dollars worth of the proceeds of corruption, crime, tax avoidance and shady deals move undetected around the world every year.

Now, a massive leak of data pulls back the veil of secrecy on the offshore finance industry like never before. Known as the Pandora Papers, it is the broadest-yet leak of confidential financial documents, comprising nearly 12 million files from 14 companies that provide offshore services.

Coordinated by the International Consortium of Investigative Journalists (ICIJ), over 600 journalists from around the world, including more than 75 from OCCRP’s network, spent two years sifting through nearly three terabytes of documents.

The result is an unprecedented look inside the world’s shadow economy. Coming more than five years after the Panama Papers, which exposed law firm Mossack Fonseca, the latest leak ends forever the idea that abuses of the offshore system are the work of a few bad apples. Instead, the files expose a vast and often interconnected system that is feeding crises and discontent across the world.

It’s “the dark side of globalization,” Oliver Bullough, author of Moneyland: Why Thieves And Crooks Now Rule The World And How To Take It Back, told OCCRP.

For decades, major banks, law firms and accountants have worked hand in hand with the world’s biggest corporations to build a system that allows for seamless global commerce and the minimization of tax, Bullough said. As time has gone by, kleptocrats and criminals have increasingly used this system for their own ends.

“It just so happens that the same things that big corporations want — minimal scrutiny, minimal taxes, best protection for contracts and so on — are also the same things the kleptocrats want,” he said.

But while corporate tax minimization might hurt the budgets of developed countries, the worst damage is in the Global South. For a fee, offshore providers are able to create sophisticated global structures that can be used by politicians, officials and businessmen in some of the world’s poorest countries to siphon staggering amounts of money abroad. As the Pandora Papers show, service providers often prove all too willing to take on such clients.

“It’s like unleashing a tiger on an island full of flightless birds,” Bullough said. “It’s obviously going to be a disaster.”

The files illustrate the truly global nature of the offshore business. It’s a hidden world in which a reported secret mistress of Russian President Vladimir Putin can get a luxury apartment in Monaco via an offshore shell company, and where the King of Jordan is able to secretly snap up real estate in London and Malibu. Again and again, the files show the ease with which money can be quietly moved around the world — including by politicians and others in positions of public trust.

Azerbaijani President Ilham Aliyev (left) and Russian President Vladimir Putin. Credit: Russian Look Ltd. / Alamy Stock Photo

Azerbaijani President Ilham Aliyev (left) and Russian President Vladimir Putin. Credit: Russian Look Ltd. / Alamy Stock Photo

From missing taxes to stolen artworks and smuggled antiquities, the Pandora Papers lays bare exactly how the offshore industry hides the fortunes of the world’s rich and infamous alike. In many cases, it has also facilitated the transfer of vast wealth from poor and developing countries to tax havens and wealthy enclaves in cities like London, where fashionable central areas have been gobbled up by politicians, officials, and their relatives. Trillions of dollars, mostly from the earnings of large corporations are believed to be stashed in offshore tax havens. Each year, tax avoidance alone is estimated to cost the world’s poorest countries $200 billion a year — far in excess of what they receive in development assistance.

The entire system is so hard to unpack in part because jurisdictions that offer corporate secrecy, such as the United Arab Emirates, are able to attract so much money, said Lakshmi Kumar, Policy Director at Global Financial Integrity, a Washington, DC-based nonprofit.

“These offshore jurisdictions act as financial centres for their region, businesses migrate there. The UAE allows for commercial disputes to be settled through English common law, they provide anonymous companies, protections for businesses,” Kumar said.

“It’s safe and convenient for business. But that is also safe and convenient for criminal actors.”

“Bringing Mischief to Mortals Silently”

The service providers whose data make up the leak are spread across the world and have decades of experience discreetly servicing high profile clients.

The largest tranche of files, just over 3.75 million in total, comes from Trident Trust Group, a firm that has operated since the late 1970s in offshore havens including the British Virgin Islands, the Seychelles, and Panama, as well as the United States and the United Kingdom.

Long Bay Beach in the British Virgin Islands. Credit: robertharding / Alamy Stock Photo

Long Bay Beach in the British Virgin Islands. Credit: robertharding / Alamy Stock Photo

The Pandora Papers shows Trident’s customers have included powerful people such as Bahrain’s former prime minister, Prince Khalifa bin Salman al-Khalifa, as well as Khadem al-Qubaisi, a former aide to Abu Dhabi’s royal family. Prominent businessmen, such as Alibaba’s Jack Ma, have also been clients.

The family and business associates of Azerbaijan’s leader Aliyev used Trident’s services to build an offshore-controlled empire in the United Kingdom worth over half a billion dollars in unexplained wealth. Documents show that Trident set up 84 companies in the British Virgin Islands for Aliyev’s circle — including some that received money from the Russian and Troika Laundromats, two multi-billion-dollar money laundering schemes first revealed by OCCRP. The companies were also used to secretly invest in businesses back home in Azerbaijan.

In some cases, the documents show Trident maintained relationships with clients in spite of accusations of wrongdoing. Abu Dhabi adviser al-Qubaisi remained a client of Trident years after he was accused by the U.S. Justice Department of playing a role in a multi-billion dollar fraud involving funds from a Malaysian sovereign wealth fund, 1MDB. Trident also continued to work with the family trust of Dan Gertler, an Israeli mining billionaire, years after he was accused by a U.N. expert panel of exchanging “conflict diamonds” from Africa for cash and weapons. Gertler has since been sanctioned by the U.S. government.

In a response to reporters, Trident refused to answer questions on specific cases. Instead, it said the company “is regulated in the jurisdiction in which it operates and is fully committed to compliance with all applicable regulations. Trident routinely cooperates with any competent authority which requests information.”

Other providers in the data include law firms, such as Panama’s Alemán, Cordero, Galindo & Lee, known as Alcogal, and Cyprus’ Demetrios A. Demetriades, known as Dadlaw. They also include a wide geographic spread, from Asiaciti Trust, a service provider that focuses mainly on the Asia-Pacific region, to Alpha Consulting, a firm based in the Indian Ocean nation of the Seychelles.

The latest revelations show that offshore providers make up a truly global and interdependent industry, said Rachel Etter-Phoya, a senior researcher at the Tax Justice Network.

“The celebrities, the political families are all involved. They’re all using the same service providers,” Etter-Phoya said. “The service providers work together and go after similar clients [and] the clients recommended them to each other.”

The data also contains fascinating details on another trend: the growing role of the United States as an offshore haven. Due to the central role the U.S. plays in the global banking system, the country is in a uniquely powerful position to bring secretive offshore finance to heel. But while the federal government has made recent efforts to rein in the industry abroad, many states — such as Delaware, Alaska and Nevada — have held out or are moving in the opposite direction. In recent years, lawmakers in over a dozen U.S. states have voted to expand their financial secrecy industries.

The Pandora Papers contains details on over 200 trusts set up in the U.S. in recent years. In dozens of cases, clients have abandoned more traditional havens, such as the British Virgin Islands and the Bahamas, in favor of the U.S.

The most popular destination has been South Dakota, where the past decade has seen the value of assets held in trusts reach more than $360 billion. State laws in South Dakota allow for the establishment of secret trusts which don’t have to pay a cent of tax to the state for any earnings. Unlike most states, which restrict the life of trusts to a century or less, South Dakota trusts are also “perpetual,” meaning they have no end date. This means they can continue making tax free gains and passing them on to future generations — theoretically forever.

South Dakota’s Mount Rushmore. Credit: Images By T.O.K. / Alamy Stock Photo

South Dakota’s Mount Rushmore. Credit: Images By T.O.K. / Alamy Stock Photo

“As a citizen, I’m so sad that my state was the state that opened Pandora’s box,” Susan Wismer, a former South Dakota lawmaker, told ICIJ.

“You Know Who”

In the coming days, OCCRP will publish a broad range of stories based on the Pandora Papers. Frequently, the documents show that the biggest beneficiaries of the offshore systems are people in power, as well as their friends and family.

Known in the industry as “politically exposed persons,” or PEPs, such people are supposed to be subject to increased scrutiny to make sure their money hasn’t come from questionable deals or outright corruption. Offshore service providers routinely say they subject such people to enhanced “know your customer” checks.

In total, 35 current and former national leaders appear in the leak, alongside 400 officials from nearly 100 countries. Among those names are former British Prime Minister Tony Blair, Chilean President Sebastián Piñera, Kenyan President Uhuru Kenyatta, Montenegrin President Milo Đukanović, and Gabonese President Ali Bongo Ondimba.

Among the revelations are details of how Czech Prime Minister Andrej Babiš, who was elected on an anti-corruption platform, used offshore companies to disguise an investment of 15 million euros in luxury property in the south of France, including a chateau. The files also show how another European leader elected on an anti-graft platform, Volodymyr Zelensky, appears to have used complex offshore arrangements to allow his family to continue benefiting from overseas business without declaring it.

The leaked files show that offshore firms sometimes appear to have taken a lenient approach to their due diligence on politically sensitive clients.

Nikola Petrović was one such customer. The Serbian citizen was the head of the country’s state-owned electricity transmission company. He was also the kum — roughly equivalent to a best man or blood brother — of the country’s autocratic president, Aleksandar Vučić. He became an owner of a British Virgin Islands company, set up in 2016, via Swiss consulting firm Fidinam and Alcogal, the Panamanian law firm.

But when setting up the company, Petrović never informed Alcogal that he might be considered a politically exposed person despite being so close to the president. Furthermore, his Swiss lawyer specifically told Alcogal that Petrović was not a PEP. However, Alcogal’s due diligence after the formation of the company uncovered his political position and asked for a bank reference letter. Documents show that the Swiss law firm pushed back on requests by Alcogal, offering instead to write the reference letter themselves. Alcogal accepted the offer. Petrović kept the company secret from Serbian officials, never declaring it as required by law with the anti-corruption agency.

Petrović did not respond to questions.

The documents show the lengths providers take to preserve their clients’ anonymity. The leak shows how Panamanian firm Alcogal and a Swiss adviser for Jordan’s King Abdullah II worked to conceal the monarch’s identity from the public. Even in emails between themselves, they referred to Abdullah using pseudonyms: the “final beneficiary” living in Jordan, or “you know who.” After the British Virgin Islands passed a 2017 law requiring companies to confidentially disclose their real owners, correspondence showed that Alcogal and the advisers discussed using a workaround in which they would have disclosed a holding company, rather than the king, as true owner to local authorities. It is unclear what they ultimately decided to do.

The king’s attorneys told ICIJ that professionals manage the king’s companies to ensure compliance with relevant legal and financial obligations. In a response to ICIJ, Alcogal said that the law does not require it to report politically-exposed people, known as PEPs, on the basis of their political ties alone. The firm said that it conducts enhanced background checks on all politically-connected individuals.

“One Set of Rules for Them”

The vast, secret flow of offshore cash isn’t just hurting the budget bottom line. Across the world, it’s also feeding discontent and undermining governments’ legitimacy.

In Lebanon, a severe banking crisis and a series of financial scandals involving the country’s business and political elite has led to sometimes violent protests. Amid electricity cuts, fuel lines, and shortages of currency, Lebanese are fleeing the country in droves.

One of the banks that has been the focus of public anger is Al Mawarid Bank, which responded to the crisis by preventing clients from withdrawing their U.S. dollar savings. When news emerged in 2020 that bank chairman Marwan Kheireddine, bought a Manhattan apartment from the Hollywood star Jennifer Lawrence, angry crowds burned a building in Beirut they believed belonged to him.

But thanks to the secrecy enabled by offshores, wealthy individuals like Kheireddine are able to hide much more.

For example, the Pandora Papers show that in 2019 amid warnings by economists of the impending crisis, Kheireddine became the owner of a British Virgin Islands company that owned a $2 million yacht. The previous owner of the yacht, Yahya Mawloud, told reporters that the vessel had been given to Kheireddine as collateral for a loan.

Kheireddine did not respond to a request for comment from ICIJ.

Lebanese remain furious with their country’s elites, who they blame for the economic chaos. Wafaa Abou Hamdan, a 57-year-old widow, told OCCRP partner Daraj that inflation had caused her life savings to fall from the equivalent of $60,000 to just $5,000. “All my life’s efforts went in vain, I have been working continuously for the past three decades,” she said. “We are still struggling on a daily basis to maintain our living” while “the politicians and the bankers . . . who seized our savings have all transferred and invested their money abroad.

Even countries that appear to have benefited from the inflow of illicit cash, like the United Kingdom, are seeing increases in inequality and local corruption as a result, said Nicholas Shaxson, the author of Treasure Islands: Tax Havens and the Men who Stole the World.

As revelations of offshore abuses by elites continue to pour out, there is a growing realization around the world that there is “one set of rules for them, and another set of rules for everybody else,” Shaxson said. “I think a lot of people grasp that viscerally.”

The good news is that greater awareness is leading more people to embrace concerted, cooperative action to work globally to reduce secrecy and close loopholes, he said.

“I’m quite optimistic for the long term. But you know, under no illusions that it’s going to be easy. Or, you know, even going to be successful.”

This story was first published by our partner OCCRP. It includes contributions from ICIJ, KRIK, Daraj, and other Pandora Papers partners.

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Pandora Papers: The Secret London Properties of Nigeria’s Elite

Journalists from the BBC, The Guardian and Finance Uncovered, spent months matching the names of company owners found in the Pandora Papers with UK Land Registry records to discover who really bought hundreds of UK properties. The result is the most comprehensive dataset ever published focusing on rich and powerful Nigerians who have secretly bought UK property.

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Pandora Papers: The Secret London Properties of Nigeria’s Elite

A Finance Uncovered graphic reveals a wave of cash flooding into London property from elite Nigerian politicians and business figures using offshore secrecy vehicles.

The interactive visualisation, produced using data leaked in the Pandora Papers and other similar investigations, offers a further indication that there was a mushrooming of UK property purchases by Nigerian-owned offshore companies.

In the last three decades at least 233 houses and apartments were bought by 166 such companies with a combined worth today of £350 million.

Behind these companies were 137 wealthy and influential Nigerians, according to an investigation by Finance Uncovered and Premium Times.

The bulk of purchases happened between 2010 and 2015 when Goodluck Jonathan was president of Nigeria. Jonathan’s government has been accused of allowing corruption to run rampant. He has always strongly defended his record in office and denied any wrongdoing.

The Pandora Papers is a massive leak from firms that specialise in setting up offshore companies in territories such as the British Virgin Islands and Panama. The leaked documents have allowed journalists from all over the world to lift the corporate veil and reveal the companies’ true owners. The project was organised and led by the International Consortium of Investigative Journalists (ICIJ).

It is not against the law to secretly buy British properties using anonymous offshore companies. Finance Uncovered has seen no evidence in the Pandora Papers that money used to buy houses or apartments in the UK represents the proceeds of corruption or other criminality.

Indeed, many specialist advisers have routinely recommended clients invest in this manner to legally avoid tax.

Journalists from the BBCThe Guardian and Finance Uncovered, spent months matching the names of company owners found in the Pandora Papers with UK Land Registry records to discover who really bought hundreds of UK properties.

In addition, Finance Uncovered then teamed up with Premium Times to apply similar analysis to previous data leaks, including the Panama Papers and FinCEN FIles.

The result is the most comprehensive dataset ever published focusing on rich and powerful Nigerians who have secretly bought UK property.

Stella Oduah

The property owners include Nigeria’s former aviation minister Stella Oduah. Now 59, she served under Jonathan from 2011 until 2014 when she resigned amid serious corruption allegations, which she has denied.

Stella Oduah
Oduah (pictured above) was never charged on those allegations. But she has since been indicted on separate money laundering offences relating to an alleged fraud. Oduah, who remains a senator, has always denied accusations of wrongdoing.

Our investigation suggests she secretly bought London property.

We have seen a confidential US suspicious activity report by Deutsche Bank. It suggested that a company owned by Oduah made a suspicious payment of almost $72,000 to a London property broker in 2012.

A search of Land Registry records then showed that one month later another company, registered in the Seychelles, paid £5.3 million for a London townhouse.

The Seychelles company shared a name with another one owned by the Oduah family.

We asked the former minister and the London property broker to confirm that Oduah, her family or associates, were involved in buying the London property but neither responded.

The Deutsche Bank suspicious activity report is part of the FinCEN Files, a leak of documents obtained by BuzzFeed News and shared with other journalists through the ICIJ.

It is not known whether any further action was taken as a result of the suspicious activity report.

Mohammed Bello Koko

Another prominent figure whose property-owning company was discovered by reporters in the leaked data is Mohammed Bello Koko, 52, (pictured below) the finance director of the powerful Nigerian Ports Authority. He is also reportedly its acting managing director.

For much of his career he worked in banking, including 10 years at Zenith Bank, where he rose to be a deputy general manager.

According to the Pandora Papers, Bello Koko and his wife were the anonymous owners behind two companies incorporated in the BVI.

Mohammed Bello KokoSearches at the Land Registry showed that these companies bought five London properties between 2009 and 2017, for a combined total of almost £1.5 million. One of the properties has since been sold.

Elsewhere in the Pandora Papers, a 2017 letter from law enforcement officials in the BVI requested information about these BVI companies — together with seven others — in relation to an investigation into financial offences, including money laundering.

Alemán, Cordero, Galindo & Lee (Alcogal), the BVI registered agent for the companies, wrote back saying: “To the best of our knowledge, these companies do not have any assets or bank accounts held in their name.”

Asked why it had not mentioned the UK properties, Alcogal explained that it was only obliged to provide law enforcement officials with the information that it holds in its records.

Finance Uncovered and Premium Times wrote to Bello Koko and his wife but they did not respond.

We have seen no evidence that law enforcement enquiries in the BVI led to further action against Bello Koko, his wife or their property owning companies.

Anonymous ownership

Lanre Suraju, chair of Human and Environmental Development Agenda (Heda Resources Centre), a Nigerian anti-corruption campaign group: “For a country that is incapable of providing electricity and decent roads without external financial support, and which depends on a combination of foreign loans and aid to supply potable water and public education, it is galling to discover such a humongous outflow of Nigeria capital to London, all concealed via the use of offshore companies. “

For more than five years, under three different Conservative Party prime ministers, the British government has been promising to make the names of offshore property owners public as part of wider efforts to end anonymous ownership. But it has failed to do so.

Rachel Davies Teka, head of advocacy at Transparency international, said: “This investigation shows it remains all too easy for those with suspicious wealth to acquire property in the UK whilst hiding their identities using opaque offshore companies. Not only does this harm the countries where suspect funds are siphoned from, but it damages Britain’s reputation as a hub for global commerce.”

For privacy reasons, Finance Uncovered is not publishing or mapping the names of the owners or locations of specific properties.

This article was first published by our partner Finance Uncovered.

* Contributing research to this investigation: Taiwo Adebayo, Nicholas Ibekwe and Musikilu Mojeed
* Story edited by Nick Mathiason and Ted Jeory

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