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NOW UN TOO DECIDES MEDIA IS THE ENEMY: WIPO, FAO, in unprecedented move, waive immunity to sue journalists for defamation

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Malindi, Kenya – AN UGLY WAR THAT MAKES A MOCKERY OF THE UN’s CORE MANDATE

On World Press Freedom Day on May 3, the United Nations Secretary-General Antonio Guterres called on world leaders to ‘defend a free media’ and to put an end to ‘all crackdowns against journalists because a free press advances peace and justice for all.’ Yet the UN’s own senior officials are engaged in an ugly war against the media that has made a mockery of the Secretary-General’s message and the UN’s commitment to uphold Article 19 of the UN Charter that protects everyone’s right to freedom of opinion and expression.

The heads of both the Geneva-based World Intellectual Property Organisation (WIPO) and the Rome-based Food and Agricultural Organisation (FAO) have taken the unprecedented step of suing journalists for defamation – a highly unusual act because the UN and its employees enjoy immunity from prosecution, which means that in order to bring a case before a national court they have to surrender this immunity – which rarely happens.

The WIPO case is particularly intriguing as it has surfaced at a time when North Korea is amassing sophisticated military weapons and threatening a nuclear war. According to those who are familiar with the case, in 2014, James Pooley, Moncef Kateb and Miranda Brown, three high-level WIPO staff members, alleged that Francis Gurry, the Director-General of WIPO, had authorised the shipment of high-level American information technology to North Korea in violation of United State sanctions against the country and without the approval of the UN Security Council. For their efforts, all three staff members suffered severe retaliation; Pooley was investigated for misconduct, Kateb was fired and Brown was forced out of the organisation after being continuously harassed.

In February 2016, Brown told lawmakers in the United States that Gurry had told her that WIPO was not bound by US or UN sanctions and that as a member state of the UN, North Korea deserved ‘technical co-operation.’ In her testimony to the US House Committee on Foreign Affairs, Brown stated that one her colleagues had informed her that the shipment was a reward for North Korea’s support for Gurry’s election as Director-General of WIPO in 2008. Interestingly, despite all these developments, Gurry continues to enjoy his hefty salary and top job at WIPO.

BLOW YOUR WHISTLE… AND GET FIRED

Even though the UN has a whistleblower protection policy, UN whistleblowers’ experiences show that the policy has proved to be largely ineffective; in fact, most UN whistleblowers are ostracised, demoted, fired or blacklisted because they are perceived to be an existential threat to the UN’s moral authority and legitimacy.

In 2014, for example, when Anders Kompass, the director of field operations at the Office of the UN High Commissioner for Human Rights, reported to the French government that French peacekeepers operating under the authorisation of the UN Security Council in the Central African Republic were sexually abusing boys as young as nine-years-old, he was asked to resign. When he refused to do so, he was suspended for ‘unauthorised disclosure of confidential information.’ He was only exonerated after an inquiry cleared him of all charges. Kompass has since resigned from his UN job. He told the Guardian newspaper that his ordeal at the hands of the UN had left him ‘disappointed and full of sadness.’

Even though the UN has a whistleblower protection policy, in fact, most UN whistleblowers are ostracised, demoted, fired or blacklisted

Unfortunately, cases of peacekeepers sexually exploiting women, girls and boys have not stopped since Kompass exposed them to the French government, nor has the UN taken significant steps to stem these crimes. A recent investigation by the Associated Press found that UN peacekeepers have been routinely sexually abusing minors in countries such as Haiti for years, and that few of them are reprimanded or jailed. The UN’s normal reaction to these cases is to first to engage in a cover-up, then to deny the scale of the problem instead of ordering an investigation.

The case of Emma Reilly, who works in the same organisation where Kompass worked, illustrates how difficult – and perilous – it can be to report criminal, illegal or unethical activities within the UN. In 2013, Reilly told Navi Pillay, the then UN High Commissioner for Human Rights, that a senior member of staff was giving the Chinese government the names of Chinese dissidents who were to attend a meeting of the Human Rights Council in Geneva. Instead of reprimanding the staff member who was placing the dissidents’ lives in danger, Pillay’s senior staff began harassing Reilly. Only in 2016, when Reilly informed the Irish government of this betrayal of human-rights defenders by her organisation did the practice stop. Now Pillay’s successor, Prince Zeid Ra’ad al Hussain, wants to have Reilly investigated for ‘leaking’ information.

The UN is also known for sacking or not renewing the contracts of individuals who threaten to expose fraud or corruption within the organisation. For instance, when Rehan Mullick, a database manager, informed UN senior managers about stark irregularities in the UN’s Oil-for-Food programme in Iraq, his contract was not renewed. However, two years later, UN Secretary-General Kofi Annan was forced to appoint a team of international investigators to look into irregularities within the programme after the Wall Street Journal published a shocking exposé that showed that the Iraqi dictator Saddam Hussein was using front companies that were receiving kickbacks from the programme and the UN preferred to look the other way. The Volcker Commission’s investigations found that more than 2,000 companies and individuals from over 40 countries had paid bribes or kickbacks to Saddam to participate in the programme and that billions of dollars had been lost. Despite having forewarned the UN Secretariat in New York about what would turn out to the biggest scam in the UN’s history, Mullick remains just a footnote in a long list of scandals that have plagued the UN in recent years.

INSIDERS ARE FAIR GAME, BUT JOURNALISTS?

But while the UN has a well-known history of retaliation against staff members who report wrongdoing within the organisation, its senior managers rarely retaliate against journalists who report misconduct, abuse of office, fraud or corruption within this world body. Which is what makes the WIPO and FAO cases so interesting.

In January this year, a journalist with World Radio Switzerland reported a protest against WIPO boss Francis Gurry over alleged corruption and abuse of power. The reporter also quoted a US Congressional Committee that had described WIPO as ‘the Fifa of the UN’ for the scale and number of scandals that the organisation had witnessed under Gurry’s tenure. The WIPO boss filed a criminal case of defamation against the reporter.

‘The very notion of a criminal complaint for defamation being an anathema to the principles and values underlying the United Nations, it is unthinkably improper that a UN agency itself, and its Director-General, initiate a domestic legal procedure so abhorrent to UN values’

Matthew Parish, the lawyer who is acting as defence counsel for the reporter, says that he finds it ironic that the UN, which has long sought to abolish criminal penalties for journalism and free speech, has condoned – and not even commented on – Gurry’s unusual action. On the contrary, UN Secretary-General Antonio Guterres, not only sat alongside Gurry at a meeting of top UN executives held in Geneva recently, but also praised WIPO for its excellent work.

Parish told the New American magazine that Gurry’s actions against the reporter were a violation of everything the UN stands for. ‘The very notion of a criminal complaint for defamation being an anathema to the principles and values underlying the United Nations, it is unthinkably improper that a UN agency itself, and its Director-General, initiate a domestic legal procedure so abhorrent to UN values,’ he said.

Gurry also appears to have flouted the UN’s own rules pertaining to the privileges and immunities that UN staff enjoy. The UN Charter and the UN’s staff rules accord immunity from prosecution to UN staff and its representatives, not just in the country where they are stationed but also in their own countries. This type of immunity is not even accorded to ambassadors, who may be tried in their own countries, if not in the countries where they are serving.

In order to bring a criminal case to a national court, the UN has to bypass its own internal justice systems and flout its own rules and regulations. This rarely happens because it would mean that as either plaintiff or defendant, UN officials subject themselves to the laws and courts of the country where the case is filed, and in doing so, surrender their legal immunity. This scenario could end up being a double-edged sword for the UN – if a UN official can waive his or her immunity and appear in a national court, then aggrieved parties, including UN whistleblowers and families of children abused by UN peacekeepers, can use that waiver to countersue a UN official or take the UN to court. This case thus represents a legal quagmire that may end up hurting, rather than helping, the UN.

If a UN official can waive his or her immunity and appear in a national court, then aggrieved parties, including UN whistleblowers and families of children abused by UN peacekeepers, can use that waiver to countersue a UN official or take the UN to court. This case thus represents a legal quagmire

Meanwhile in Rome, FAO has a filed a case against the English language publication Italian Insider and its editor John Phillips for damaging the UN agency’s reputation through articles exposing corruption, cronyism and nepotism. FAO is demanding hefty damages in this case, which could force the publication to shut down. One of the scandals that the Italian Insider exposed was the appointment of former Peruvian First Lady Nadine Heredia to a senior post at FAO, apparently so she could escape charges of corruption and money laundering in her own country.

This is not the first time that the Rome-based agency has come under attack. A few years ago, D.T Krueger, a former FAO employee, wrote a book called UN: A Cosa Nostra that described the mafia-like management culture at FAO. According to Krueger, three-quarters of the funding received by FAO is spent on administration, staff, travel and accommodation costs, and little reaches those who need it the most. Which could explain why so many of the FAO’s agricultural and food security projects have failed in countries such as Somalia, which has been suffering from chronic food insecurity for decades.

THAT OLD TIME MAFIA METHOD: SWIFT RETALIATION

The people most likely to report unethical or criminal activities within the UN tend to be insiders, but as many of their cases have shown, the UN, like the Italian mafia, has a swift and efficient mechanism to get rid of these whistleblowers through retaliatory actions, including harassment, character assassination and dismissal. By the time the whistleblower understands what has happened to her, it is too late. The systematic cover-ups and denials, and the failure to adequately investigate the wrongdoing, make it virtually impossible for the whistleblower to receive justice from the UN’s internal justice systems, which are heavily biased in favour of senior UN management. The fear of being blacklisted also prevents UN whistleblowers from speaking to the media or to seek remedy through internal channels.

The Washington-based Government Accountability Project (GAP) found that more than 95 per cent of whistleblowers’ complaints to the Ethics Office never get investigated. In fact, a complaint to the Ethics Office is likely to land the whistleblower in even more trouble, as I found out

The UN Ethics Office, which is supposed to protect UN whistleblowers from retaliation, is notorious for not protecting those who report wrongdoing. The Washington-based Government Accountability Project (GAP) found that more than 95 per cent of whistleblowers’ complaints to the Ethics Office never get investigated, and that whistleblowers get little moral support from this office. In fact, a complaint to the Ethics Office is likely to land the whistleblower in even more trouble, as I found out when I reported suspected abuse of office and fraud at the United Nations Human Settlements Programme (UN-Habitat) when I worked there. The retaliation against me – in the form of public humiliation, intimidation, character assassination and threats of non-renewal of contract – escalated as soon as I sent the complaint, which suggested to me that the Ethics Office shared my letter with my bosses. My attempts to report the wrongdoing to senior managers also failed; none of them intervened on my behalf or ordered an investigation to ascertain whether my complaints were genuine.

The Washington-based Government Accountability Project (GAP) found that more than 95 per cent of whistleblowers’ complaints to the Ethics Office never get investigated. In fact, a complaint to the Ethics Office is likely to land the whistleblower in even more trouble, as I found out

When I filed an official complaint through GAP, the Ethics Office responded by saying that while there was probably evidence of wrongdoing in my allegations, it could not establish whether I had experienced retaliation. This meant that my case was essentially closed because if one cannot prove retaliation, one cannot move one’s case forward.

A HARD RAIN’S GOING TO FALL

Unfortunately, UN whistleblowers are in for an even harder time. A revised whistleblower protection policy adopted in January this year gives the Ethics Office even more powers. UN whistleblowers face the threat of being ‘disciplined’ if their allegations or complaints are found to be false or based on ‘rumours.’ ‘This means that if a staff member suspects wrongdoing in his or her department, and makes a complaint so that further investigations can be carried out, and then it is determined that there was no wrongdoing (which usually happens as the UN rarely admits that wrongdoing takes place within its hallowed halls), that staff member could face disciplinary action for spreading ‘rumours.’

The revised 2017 UN whistleblower protection policy is an improvement on the old 2005 policy in that it does allow UN whistleblowers to approach an external entity or individual if they believe that the internal justice system has failed them or is unlikely to protect them. However, it severely limits the kinds of information they can divulge and the types of entities and individuals they can approach.

If WIPO and FAO win their cases against the journalists, that will be another nail in the coffin of accountability and transparency at an organisation that was formed 70 years ago to protect the human rights, dignity and freedom of expression of every human being on this planet

The revised policy states that an individual can only report misconduct within the UN to an external entity or individual if the report does not cause ‘substantive damage to the Organisation’s operations,’ which is another way of saying that the revelation does not damage the UN’s reputation. In the Reilly and Kompass cases, for instance, the UN could argue that by approaching a government, they had damaged the UN’s reputation, which could impact the organisation’s operations (as these governments would be reluctant to fund the organisation’s future operations). What’s more, the UN could even ‘discipline’ a UN whistleblower for spreading ‘rumours.’

In essence, the revised policy is a gagging order on UN whistleblowers and a significant step backwards in improving accountability within the UN. It appears to give whistleblowers greater leeway in reporting wrongdoing, but takes away this freedom through stringent conditions that cannot be met because most whistleblower cases never reach the official investigation stage. The revised UN whistleblower protection policy thus reinforces the UN’s culture of cover-ups, corruption and impunity.

Having effectively silenced its own staff members, it seems the UN is now on the warpath against the media. If WIPO and FAO win their cases against the journalists, that will be another nail in the coffin of accountability and transparency at an organisation that was formed 70 years ago to protect the human rights, dignity and freedom of expression of every human being on this planet.

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Rasna Warah is a Kenyan writer and journalist. In a previous incarnation, she was an editor at the United Nations Human Settlements Programme (UN-Habitat). She has published two books on Somalia – War Crimes (2014) and Mogadishu Then and Now (2012) – and is the author UNsilenced (2016), and Triple Heritage (1998).

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Wakasighau: The Forgotten Victims of British Colonial Land Dispossession

The effects of the British colonial policy of subjugation through dispossession and exile continue to reverberate among the Wakasighau.

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Wakasighau: The Forgotten Victims of British Colonial Land Dispossession
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Two years have gone by since I last saw Mzee Joshua Mwakesi Mwalilika. He hasn’t changed a bit. His birth certificate says he was born in 1923. This means that Mzee Mwalilika is just two years shy of a hundred. He says that the birth certificate is wrong, that he was actually born in 1921. Mzee Mwalilika is from Taita, of the Wakasighau, a people who were uprooted from their native Kasighau region and exiled by the British to Malindi where they languished for over twenty years.

It all started in August 1915, at a time when Kenya was under British colonial rule and neighbouring Tanzania, then Tanganyika, was under the Germans. World War I had begun and, being so close to the border with Tanganyika, Kasighau was bound to suffer the effects of the war. When the Germans attacked the British, the British took revenge on the local African populations.

“All the houses were torched in the entire Kasighau on August 11th 1915. From Kigongwe, Makwasinyi, Jora, Kiteghe, Bungule, and Rukanga,” recalls Mzee Mwalilika. It was the handiwork of the British; they were on a punitive expedition against the Wakasighau whom the British suspected of having betrayed them to the Germans. A few days prior, the Germans had  carried out a night raid on the British garrison at Kasighau, committing a massacre. This was eight years before Mzee Mwalilika was born.

One version of the events is that after the attack, the Germans wrote a letter to the British claiming that the locals had voluntarily betrayed them, which prompted the British to retaliate. At Rukanga Village in Kasighau, retired teacher Jonathan Mshiri, now aged 71, says that local accounts of the events tell of two individuals from the area who unknowingly directed some Germans who were on a spying mission to where the British had set up camp.

“Two people were harvesting honey in the bush and the soldiers came and interrogated them and said, ‘Can you show us where the wazungu are?’” says Mwalimu Mshiri. “They used the term wazungu not British, so Kinona and Mwashutu thought that these white people were just friends of fellow white people. They did not know that these were Germans.”  The Germans laid waste to the British garrison at Jora in Kasighau and 38 British soldiers, including their captain, were taken captive by the Germans. This enraged the British so much that they decided to exile the entire Kasighau community.

For the Kasighau people, the British chose Malindi. After torching all the houses in the five villages, they rounded up all the people and gathered them at a place that was central to all the villages. “The British chose these open grounds because it gave them a view of Tanganyika where the Germans had come from,” explains Ezra Mdamu, a descendant of the survivors. “They also hoped that some of the villagers would have a better chance of pointing out exactly where the Germans had headed to. The people were also subjected to torture to extract information from them.”

The Wakasighau were then forced to march to Maungu Township, some 35 kilometres by today’s roads. From Maungu to the border at Holili is 144 kilometres using today’s road network, if indeed the German attackers had come through Holili.

The captives were herded into train wagons and taken to Malindi where the British had prepared the ground by forewarning the Giriama that the Wakasighau were cannibals.

At Maungu, the captives were herded into train wagons and taken to Malindi where the British had prepared the ground by forewarning the Giriama that the Wakasighau were cannibals. “What the new hosts did was put poison in the water holes, and this led to many deaths amongst our people,” Mwalimu Mshiri explains.

Macharia Munene, professor of History and International Affairs at the United States International University, says that using exile as punishment summarizes the colonial policy of subjugation and dispossession of local peoples.

“Most of these people who were deported were individuals, people trying to challenge colonial authority,” he says, “but colonialists also deported groups of people, often to hostile, undesirable places.”

Return to Kasighau

The plight of the Kasighau in their new land did not go unnoticed, and various parties, including church organizations, brought pressure to bear on the colonialists to review their position. But it was not until 1936 that the Kasighau people were allowed to return home, only to find most of their land gone.

“All the land around Kasighau Hill was termed as hunting blocks where the British people could hunt. The block here was called ‘66A’, the Kasighau people were only confined to a 10km² block around the hill called ‘Trust Land’. The rest of the land was called ‘Crown Land,’” says Mwalimu Mshiri.

It was not until 1936 that the Kasighau people were allowed to return home, only to find most of their land gone.

After independence in 1963, Crown Land became State Land and some of the remaining land was handed over to ex-WWII British colonial soldiers. The people of Kasighau were not represented at the time and the remaining land was subdivided into ranches that today surround the 10km² settlement area. It is within some of these ranches that mineral deposits and precious stones are found, and there are frequent tussles between the youth, miners and investors.

According to a report titled The Taita Taveta County Integrated Development Plan 2013-2017, only 35 per cent of all landowners possess title deeds. The report says that land adjudication was ongoing to ensure that all landowners possess title deeds. The 2019 census puts the population of Taita Taveta at 340,671. Kasighau Ward alone is home to 13,000 people. The majority say they do not have title deeds.

No land, more problems

In February 2019, a group of young men from Kasighau descended on a disputed mine inside Kasighau Ranch. Around the mining area are mounds of earth and makeshift tents. People selling foodstuffs have followed in the wake of the miners. Those mining say they are simply going for what they believe belongs to them. They do not have the heavy equipment needed for serious mining operations such as earthmovers or elaborate underground mining shafts. They are artisanal miners who rely on simple tools such as hoes, spades and mattocks.

“When we young people saw that we did not have leaders serious on championing our rights, we decided to have our own revolution,” says Elijah Mademu, a youth leader. “We decided to redeem our lost lands, lands rich in mineral resources. There are about 500 young men and women eking out a living from these minerals.”

According to retired Kasighau Location chief Pascal Kizaka, the occupation of the mine can be attributed to population pressure and young people running out of options. “Every economic activity starts with land. Without land, you are like that person who is given water but cannot drink it,” he says.

Prof. Macharia says land ownership remains a significant cause of conflict across much of Kenya where land issues remain unresolved. “The government, particularly the area MP and area governor, because they have power, they should raise the issue and say, these are our people, so process their [land] titles.”

However, Taita Taveta Lands County Executive Committee member Mwandawiro Mghanga disputes the assertion that the county or the leadership at the local level are fully able to resolve the issue of title deeds, arguing that land and natural resources adjudication have not been fully devolved.

“It is true in this matter there are injustices, but on title deed issues even the entire Taita Taveta County has the same problem. In Kasighau the plan is to let them get the title deeds alongside the rest of the county”, he says.

“Of course there are six ranches, agriculturally-driven ranches (ADR’s) and there’s Kasighau Ranch which is very large. . . . There should not be a drive motivated by the capitalist system to grab ranches. What needs to be done is that everyone who needs a title for land to settle should have access to it.”

“Without land, you are like that person who is given water but cannot drink it.”

Land alone might not be the only thorny issue. Chief Kizaka laments that throughout his time living and working in the area, local Kasighau people have noticeably been lagging behind even in education matters. For instance, a 2013 report on inequalities compared Kasighau Ward to neighbouring Mbololo ward and found that only 8 per cent of Kasighau residents have a secondary education or above. A Kenya National Bureau of Statistics report titled Exploring Kenya’s Inequality: Pulling Apart or Pooling Together? shows Kasighau’s literacy rates to be four times less than Mbololo’s 32 per cent of the population who have gone beyond secondary school education.

“By independence time, we had only three primary schools, in Bungule, Rukanga and Mwakwasinyi. Illiteracy was very high. You can imagine, illiterate parents producing illiterate children,” bemoans Chief Kizaka. “There is no movement. The number of locals in school is very low. Compared to many parts of the country where locals are the majority, here we do not dominate.”

Today, Mwalimu Jonathan Mshiri says the thought of squeezing almost his entire descendants onto 15 acres of land troubles him daily. He knows too well that already the 13,000 Kasighau residents, whose numbers are increasing, are also facing the difficulty of having to make do with 10 square kilometres of land.

“We are the Kasighau people, we belong to this mountain and the surroundings, why are we not being given the priority?” he asks.

It is 6 p.m. and as the sun sets in the west, in the direction of Tanzania, it casts a golden glow on the Kasighau massif, but the dark despair of the Wakasighau remains.

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Big Pharma and the Problem of Vaccine Apartheid

In this report on the TWN-Africa and ROAPE webinar on vaccine imperialism held last month, Cassandra Azumah writes that the unfolding vaccine apartheid which has left Africa with the lowest vaccination rates in the world is another depressing example of the profit and greed of Big Pharma facilitated by imperialist power.

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The webinar on ‘Vaccine Imperialism: Scientific Knowledge, Capacity and Production in Africa’ which took place on 5 August 5, 2021, was organized by the Review of African Political Economy (ROAPE) in partnership with the Third World Network-Africa (TWN-Africa). It explored the connections and interplay of Africa’s weak public health systems, the profit and greed of Big Pharma enabled by the governments of the industrialized Global North, and the Covid-19 pandemic from a political economy perspective. This report summarizes the main discussions held during the conference, including an overview of each of the main points discussed. The webinar was the first in a three-part series of webinars scheduled by the two organizations under the theme Africa, Climate Change and the Pandemic: interrelated crises and radical alternatives.

The format of the event involved keynote presentations from three speakers, a five-minute activist update on the COVID-19 situation from two African countries, and an interactive discussion with participants. Chaired by Farai Chipato, a Trebek Postdoctoral Fellow at the University of Ottawa and ROAPE editor, the session included presentations from Rob Wallace, an evolutionary epidemiologist and public health geography expert at the Agroecology and Rural Economics Research Corps; Tetteh Hormeku, Head of Programmes at Third World Network-Africa (TWN-Africa) and Marlise Richter, a senior researcher at the Health Justice Initiative in South Africa.

The current state of the pandemic – Rob Wallace

Rob Wallace began the session by providing a global perspective on the current state of the COVID-19 pandemic. He presented data showing that though the total number of vaccinations are increasing, the percentage of people fully vaccinated is concentrated in the West. We are currently experiencing a third wave of the pandemic, which is being driven by the delta variant. Though the cases in Africa are relatively lower than in other parts of the world, it is still a marked increase from the first and second waves which were less severe. This is not the trajectory that was predicted for COVID-19 on the continent in the early days of the pandemic. Marius Gilbert et al had speculated that Africa would be vulnerable to the virus due to a lower public health capacity and underlying co-morbidities that might increase the spread and damage of the virus. However, the incidence of the virus has played out in a different way, Africa’s cases are not as high as that of other continents. The possible reasons that have been given for this are: demographics (a younger population), open housing (which allows greater ventilation), and an ongoing circulation of other types of coronaviruses which have induced a natural, partial immunity in the population.

Wallace also commented on herd immunity, stating that it is not a panacea for defeating the virus. He referenced a paper by Lewis Buss et al on COVID-19 herd immunity in the Brazilian Amazon which found that although 76% of the population had been infected with the virus by October 2020, they had not achieved herd immunity (which is usually estimated at 70-75%), and proliferation of the virus was ongoing. He pointed out that the key lesson from this study is that there is no magical threshold for herd immunity; it may be different for different populations or there may be no threshold at all.

Likewise, he contended that defeating COVID-19 has little to do with vaccination as a silver bullet, but much to do with governance and the wellbeing of the population being at the crux of any public health decisions a government would take. A multi-pronged approach should be taken to defeat the virus, one that includes vaccinations, wearing of masks, social distancing, and testing and tracing. He argued however, that in the neoliberal regimes of the industrialised North, dealing with COVID-19 is organized around profit.

This was not the case in the early days of the outbreak. Initially, the World Health Organisation (WHO) and the National Institutes of Health (NIH) in the US were in favour of having open medicine and making sure any pharmaceutical products produced to fight the virus were free to all. To this end, WHO developed the COVID-19 Technology Access Pool (C-TAP). However, the lobbying of Big Pharma and the likes of Bill Gates worked to centre the COVID-19 response around the model of intellectual property rights. This has had a considerable impact on the evolution of the virus, allowing it enough room to evolve such that pharmaceutical companies can make profits by selling booster shots of the vaccine. According to Wallace, this speaks to the “sociopathic nature” of the neoliberal regimes in the Global North who are willing to put the profits of Big Pharma over the lives of people. He opined that we need to act in solidarity to create a system in which disparities between the Global South and Global North are removed.

Health justice and the pandemic in South Africa – Marlise Richter

Marlise Richter’s presentation shed light on the work of the Treatment Action Campaign (TAC) and the lessons that can be learnt from their struggles for access to medicines (in particular ARVs). She pointed out that the TRIPS agreement (Trade-Related Aspects of Intellectual Property Rights – TRIPS – is a legal agreement between member states of the World Trade Organisation) had a big impact on how the HIV/AIDS epidemic was addressed, resulting in a limited number of ARVs reaching the Global South.

The HIV epidemic was particularly acute in South Africa, the number of people living with the virus ballooned from 160,000 in 1992 to over 4.2 million people by 2000. At this time, ARV’s had been developed but were unaffordable in Africa, costing up to US$10,000 a year in 1998.

The TAC used multiple strategies such as skilled legal advocacy, high quality research, social mobilization, demonstrations, and public education to fight the pharmaceutical industry and their abuse of intellectual property rights protections. It joined the case brought by the Pharmaceutical Manufacturers Association (PMA) against the South African government for allowing parallel importation of drugs in order to bring down prices of medicines. Its intervention contributed to pressuring the PMA to withdraw its claims in 2001. In addition, it applied pressure at the 13th International AIDS Conference in Durban in 2000 by staging a march to highlight the danger of President Mbeki’s AIDS denialism and demanded access to ARVs in Africa.

From 1999 onwards, the TAC also campaigned for a national prevention of mother-to-child transmission of HIV. This case was won at the high court and precipitated a national ARV roll-out plan in April 2004. Finally, in 2002, TAC and the AIDS Law Project filed a complaint with the Competition Commission against GlaxoSmithKline (GSK) and Boehringer Ingelheim arguing that they violated the competition law by abusing their dominance in the market and charging excessive prices for ARVs. This forced the companies to reach a settlement in 2003 leading to a drastic cut in ARV prices. By employing these tactics, the TAC and other activists were able to transform both the national and global conversation on drug pricing, eventually leading to South Africa having the largest HIV treatment program globally and pharmaceutical companies reducing the prices of ARVs.

Following the success of the campaigns to provide access to ARVs in Africa, activists in the Global South fought for the Doha Declaration. The Doha Declaration waived some of the provisions in TRIPS in order to prevent public health crises and promote access to medicines for all. However, Richter commented that not many of these flexibilities have been used. She posits that this is due to immense political pressure from the West. The US in particular has singled out governments that seek to use the TRIPS flexibilities and placed them on the US Special 301 Watch List.

Returning to the present, Richter presented data that showed that on 3 August, there have been just under 200 million confirmed cases and over 4.2 million deaths of COVID-19. 28.6% of the world’s population has received at least one dose of the vaccine with 14.8% fully vaccinated. But to give a sense of the disparity in vaccine administration across the world, she indicated that 4.21 billion doses have been administered globally with 38.67 million administered daily, but in low-income countries only 1.1% of people have received at least one dose. Narrowing it down to Africa, only 1.58% of the population has been fully vaccinated. This variance in administered vaccines is also present across the continent. In July 2021, Morocco had 28.9% of its population fully vaccinated, Botswana and South Africa had 5.3% and 5% of their populations fully vaccinated, and the Democratic Republic of the Congo had 0%. These incongruities are also evident when we assess the number of vaccines promised against vaccines delivered, with South Africa receiving only 26% of the vaccines promised. Continuing at the current pace, it would take South Africa two years and three months just to vaccinate 67% of its population.

Richter quoted the WHO Director-General saying, “The world is on the brink of a catastrophic moral failure – and the price of this failure will be paid with lives and livelihoods in the world’s poorest countries.” Following from this, she believes that it makes ethical sense and public health sense for vaccines to be distributed equitably amongst the world’s population. In a bid to fight for vaccine equity, South Africa and India co-sponsored the TRIPS waiver in October 2020. If successful, this waiver will bring about flexibilities in the TRIPS agreement which would have an immense impact on the manufactured supplies of vaccines and other medical goods. For the waiver to be passed, a consensus amongst all member states of the WTO needs to be reached. While the waiver is supported by over 100 countries (predominantly in the Global South), it has been blocked most notably by the EU, Australia, Norway and Japan, countries which have enough vaccines to vaccinate their population many times over. Putting this into perspective, in January 2021 the EU had 3.5 vaccines per person and Canada had 9.6 vaccines per person, as compared to 0.2 vaccines per person in the African Union. By blocking this waiver, the industrialised North is further entrenching the extreme inequalities currently faced by the Global South.

Richter concluded her presentation by speaking on a recent development in South Africa, where Pfizer-BioNtech has recently signed a ‘fill and finish’ contract with the Biovac Institute. She claimed that while this is a first step in developing manufacturing capacity, it is not enough to achieve vaccine independence because it does not include the sharing of Pfizer-BioNtech’s technology or know-how. In addition, the ‘fill and finish’ approach does not address issues of security of supply, nor does it allow local manufacturers the freedom to make their own pricing decisions. She believes that if we start from the premise that health is a human right, as the TAC does, we will regard health equity and especially vaccine equity as essential in the struggle against the pandemic.

The political economy of the continuing fight against intellectual property rights negatively affecting public health goods in Africa – Tetteh Hormeku

Tetteh Hormeku’s presentation was centred around the challenges that African countries have confronted in the process of trying to develop their own pharmaceutical capacity. These challenges go beyond the struggles for the TRIPS waiver and include the impact of some of the choices governments have made. He focused on two interrelated points that frame the predicament of African countries in relation to the current vaccine situation:

1) The vaccine process is dominated by pharmaceutical Multinational Corporations (MNCs) based in the advanced industrial countries and supported by their governments. The controversy around the TRIPS waiver is a clear example of the extent to which advanced countries and their MNCs would like to hold on to their place in the international order.

2) On the non-existent domestic pharmaceutical capacity in African countries, Tetteh explained that he uses the phrase “domestic pharmaceutical capacity” because:

  • It does not include a subsidiary of an MNC signing a production agreement with a local African company.
  • The word ‘domestic’ combines both the local character of production and the fact that it is embedded within the nation, its challenges, people, drives and imperatives.
  • It does not refer to nations alone, but also to regional and continental initiatives.
  • It captures pharmaceutical capacity beyond the production of vaccines.

Tetteh provided the following case-study to show how these two points are interrelated. 24 February marked the first shipment of COVID-19 vaccines to Ghana, and there was an optimism that it would be the beginning of a steady supply of vaccines to the country – six months later, less than 2% of the population has been vaccinated. Around the time Ghana received this first shipment, it was in talks with the Cuban government for support on the transfer of technology to improve its pharmaceutical capacity.

This date in February also marked the anniversary of the overthrow of Kwame Nkrumah in 1966. Six months before the coup Nkrumah’s government had established a state pharmaceutical enterprise. After the coup, the military government tried to hand it over to Abbott Laboratories, an American pharmaceutical company, under such outrageous terms that the resulting backlash from the populace led to the abandonment of this plan.

The creation of a state-owned pharmaceutical enterprise in Ghana and in other African countries in the post-independence era was a reaction to colonial policies which deliberately curtailed the production of knowledge and science across the continent. The aim of developing a pharmaceutical industry domestically was to intervene on three levels:

  • Creating an industry with the technical know-how and the machinery to be able to participate in the production of pharmaceutical products.
  • Creating an industry which is linked to the process of developing and building knowledge and being at the frontiers of knowledge. This involved creating linkages with universities and scholars.
  • Making use of traditional sources of medical knowledge. The state pharmaceutical enterprise was in operation until the 1980s when due to the Structural Adjustment Programs (SAPs) it was privatized and unable to compete in the free market.

Tetteh pointed out that two lessons can be taken from this anecdote:

  • The government strongly intervened to ensure pharmaceutical production was linked to public procurement and public policy. The market for the product was guaranteed (army, public hospitals etc.).
  • The government intervened to ensure that certain medical products could not be imported into the country. These interventions were crucial in creating the legal and scientific conditions within which the state-owned enterprise thrived until the SAP period.

A key success of the state pharmaceutical enterprise was that it was able to bargain with Big Pharma on its own terms. At the time, Big Pharma needed to negotiate with the state pharmaceutical enterprise to produce their products locally since they had no access to the Ghanaian market. Although Ghana’s intellectual property rights regime replicated and mimicked some of the standards in the Global North, it was an indication of the amount of space countries in the Global South had to develop their own legislation with respect to intellectual property for public health. However, this option is no longer available to these countries. According to Tetteh, TRIPS inaugurated the monopoly that Big Pharma has over technical know-how for medical products. It has also enabled bio-piracy which allows Big Pharma to appropriate African traditional knowledge and patent it for themselves. In the 1990s, the Organisation of African Unity (OAU) tried to create an African model law to enable a fight against bio-piracy but was unsuccessful.

The creation of a state-owned pharmaceutical enterprise in Ghana and in other African countries in the post-independence era was a reaction to colonial policies, which deliberately curtailed the production of knowledge and science across the continent

Tetteh noted that the current situation highlights the importance of getting the TRIPS waiver, as it is a starting point for building domestic pharmaceutical capacity. The waiver goes beyond just patents and encompasses a host of other intellectual property rights such as copyrights, and industrial design. It covers all the important bases for making medicines in a modern context. Looking back to the Doha Declaration, very few countries were able to make real changes to their laws in order to make use of the flexibilities. This was due in part to the entrenchment of TRIPS in other agreements such as AGOA (the African Growth and Opportunity Act) and the EPAs (Economic Partnership Agreements). However, importantly, there was no real commitment by African leaders to making these changes.

Tetteh argued that African leaders are not making the strategic choices that would eventually lead them to developing independent pharmaceutical industries. Suggesting that South-South cooperation is an avenue to address the current issues the continent faces, he argued that instead of using all their funds to buy vaccines, African countries could have allocated some funds to support phase three of Cuba’s vaccine trials. By doing this, they would have been able to negotiate for a consistent relationship in terms of knowledge exchange and the transfer of technology.

Updates on COVID-19 in Senegal and Kenya

Cheikh Tidiane Dieye provided an update on the COVID-19 situation in Senegal. The country recorded its first case of the virus in March 2020. Since then, the government has put in place measures such as curfews, travel restrictions and the banning of public gatherings to contain the spread of the disease. The Senegalese government did not enforce a lockdown because the country has a large informal sector which would have been negatively impacted by a lockdown.

Senegal is currently experiencing its third wave – driven by the delta variant. The total number of cases has increased significantly over the last year, moving from 9,805 cases and 195 deaths in July 2020 to 63,560 cases with 1,365 deaths as of July 2021. This increase in cases has taken a toll on the country as it does not have the healthcare infrastructure to deal with the virus caseload. The vaccination campaign was launched in February this year, with about 1.2 million doses received, 1.8% of the population fully vaccinated and 3% receiving their first dose.

He stated that Senegal is currently facing two issues:

  1. Lack of access to the vaccines. This is because the country does not have the means to purchase enough vaccines for its population and is currently relying on donations from COVAX. This has resulted in protracted waiting times for the vaccine. These waiting times can cause complications for vaccine administration, since there are people who have received the first dose but must wait for longer than the recommended time of eight weeks to receive their second dose.
  2. A significant part of the population is reluctant to receive vaccines and sensitization campaigns are proving ineffective.

He remarked on one key development in Senegal – the creation of a vaccine manufacturing plant funded by the World Bank, the US, and a few European countries. The plant is expected to produce 300 million doses a year, first of COVID-19 vaccines and then other types of vaccines against endemic diseases. This project will be implemented by the Institut Pasteur de Dakar which already produces yellow fever vaccines.

ROAPE’s Njuki Githethwa provided an update on the COVID-19 situation in Kenya. He mentioned that the delta variant has caused a surge in cases and deaths. There have been currently over 200,000 cases since the pandemic began with the total number of deaths at 4,000 at the end of July. He pointed out that this third wave is affecting the lower classes which were spared in the initial stages of the pandemic. Kenya has received 1.8 million doses of the vaccine, with about 1.7% of Kenyans vaccinated. He noted that if vaccinations continue at this pace, it will take over two years for Kenyans to be fully vaccinated.

A key success of the state pharmaceutical enterprise was that it was able to bargain with Big Pharma on its own terms. At the time, Big Pharma needed to negotiate with the state pharmaceutical enterprise to produce their products locally since they had no access to the Ghanaian market

According to Njuki, the disbursement of vaccines from the West is being portrayed as a symbol of charity, solidarity, and sympathy. This portrayal is underlain by the West positioning themselves as saints while vilifying other countries like India and China. He also mentioned that there is a class dynamic at play in Kenya regarding the distribution of vaccines. People in affluent areas have ease of access whereas the less privileged wait in long queues to get vaccinated. As a result, most of the population, including frontline workers, are yet to be vaccinated. Schools in the country reopened at the end of July, and only about 60% of teachers have been vaccinated. Njuki touched on the fact that there is an optimism that more vaccines are coming, however the government is not doing enough to sensitise the population. There is still a lot of misinformation and superstition surrounding the vaccines.

Moving beyond the state?

The discussion was further enriched by contributions from the participants. Gyekye Tanoh, for example, noted that in the past the presence of state pharmaceutical enterprises around the continent constituted an active and embodied interest. This influenced the way transnational pharmaceutical companies were able to negotiate, severely limiting their power. However, such a thing is not present today on the continent. In fact, a study from the McKinsey Institute pointed to the fact that the pharmaceutical industry has the highest markups in Africa, meaning that while the continent is not the biggest market, it is the most profitable region in the world. Currently, the interests of Big Pharma dominate, he asked, how do we begin to shift this? Is it time to look beyond the state as a leading agent for change? What can progressives do in this situation?

Senegal is currently experiencing its third wave – driven by the delta variant. The total number of cases has increased significantly over the last year, moving from 9,805 cases and 195 deaths in July 2020 to 63,560 cases with 1,365 deaths as of July 2021

In response to Gyekye’s question, Tetteh argued that he does not believe that it is time to look beyond the government. In the case of the pharmaceutical industry, the market is created by production and government procurement of pharmaceutical products. Real change cannot be realised without the involvement of the government and well thought out policies. But there is still a role for progressives. Activists need to mobilise and organize around broad paradigmatic changes and clear concrete policy choices that can be implemented in the immediate, medium, and long term.

Wallace added that the objectives of activists in the Global North should be to support the efforts of those in the Global South. This is especially important because COVID-19 is not the only virus that can cause real damage. We need to make structural changes that ensure the Global South is not at the mercy of the Global North whose economic model has contributed to the current situation.

Farai Chipato ended the session by thanking the speakers and participants for their contributions to the fruitful and important discussion. Chipato urged participants to join ROAPE and TWN-Africa for their two upcoming webinars: ‘Popular public health in Africa: lessons from history and Cuba’ and ‘Alternative strategies and politics for the Global South: climate-change and industrialisation.’

This article was originally published in the Review of African Political Economy (ROAPE) Journal. 

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Omissions of Inquiry: Kenya and the Limitations of Truth Commissions

Gabrielle Lynch provides a radical analysis of the mechanisms of transitional justice. Looking at the case of Kenya, Lynch argues that truth commissions which hope to achieve truth, justice and reconciliation also require ongoing political struggles, and substantive socio-economic and political change. While reconciliation and justice may be goals which truth commission can recommend, and sometimes contribute to, they cannot be expected to achieve them.

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Omissions of Inquiry: Kenya and the Limitations of Truth Commissions
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In today’s world, it is almost expected that a truth commission will be introduced in the wake of conflict or a period of authoritarianism to try and consolidate a transition to democracy and peace. A truth commission generally understood – as per Priscilla Hayner – as a temporary state-sanctioned body that investigates a pattern of past abuse, engages ‘directly and broadly with the affected population, gathering information on their experiences’ and which aims to conclude with a public report.

The underlying idea is that societies need to confront and deal with unjust histories if they are to establish a qualitative break with that past. Proponents of modern truth commissions thus ‘look backwards’, not as interested historians, but as a way to ‘reach forwards.’ As Archbishop Desmond Tutu explained in his foreword to the South African Truth and Reconciliation Commission (TRC) report:

The other reason amnesia simply will not do is that the past refuses to lie down quietly. It has an uncanny habit of returning to haunt one … However painful the experience, the wounds of the past must not be allowed to fester. They must be opened. They must be cleansed. And balm must be poured on them, so they can heal. This is not to be obsessed with the past. It is to take care that the past is properly dealt with for the sake of the future.

Motivated by this desire to render the past ‘passed’ in the substantial sense of being ‘dead’ or ‘over and done with’, modern truth commissions dedicate most of their time to two activities: the holding of public hearings and production of a final report.

This is a relatively recent development. Early truth commissions did not hold public hearings and were largely fact-finding bodies. However, ever since the South African TRC of the 1990s, truth commissions have held hearings as a stage for various actors – victims, perpetrators, political parties, state institutions and so forth – to present their account of past wrongs. The underlying idea is that people will have a chance to speak and be heard, and thus regain their humanity; that a wider (and engaged) audience will bear witness to a new human rights-conscious regime; and the overview provided will feed into, and help legitimise, a final report. The latter in turn intended to record and acknowledge past wrongs and provide recommendations that can help to promote truth, justice and reconciliation.

However, while much hope is often placed, and much time and money expended, on truth commissions and their hearings and final reports, it is evident that these processes generally fall far short of ambitious goals and high expectations. But what explains this gap between aspiration and reality?

This is one of the questions that I address in a new book – Performances of Injustice: The politics of truth, justice and reconciliation in Kenya – which analyses several transitional justice mechanisms introduced following Kenya’s post-election violence of 2007/8 when over 1,000 people were killed and almost 700,000 were displaced.

This includes the establishment of the Truth, Justice and Reconciliation Commission (TJRC). Significantly, the Commission’s mandate recognised that, while the 2007/8 post-election violence was triggered by a disputed election, it was fuelled by more deep-rooted problems.  In turn, the Commission was tasked with investigating a wide array of injustices – from state repression and causes of political violence to perceptions of economic marginalisation and irregular land acquisition – between Kenya’s independence in 1963 and the end of the post-election violence in February 2008.

Established through an Act of Parliament in 2008, and operational from 2009 to 2013, the TJRC sought to meet its mandate, in large part, by collecting statements (with over 40,000 collected in total), holding public and women’s hearings in 35 locations across the country and adversely mentioned person (AMP) hearings in western and Nairobi, and publishing a substantial final report that runs to over 2,000 pages.

Despite such achievements, the Commission was soon mired in controversy with calls for the chairman – who was soon linked to three injustices that the Commission was meant to investigate – to resign, while the public hearings attracted little media attention, and the final report is yet to be discussed in parliament let alone implemented.

The Kenyan experience highlights a range of lessons and insights. This includes the fact – as recently outlined in a piece for The Conversation – that transitional justice mechanisms are not ‘tools’ that can be introduced in different contexts with the same effect. Instead, their success (or failure) rests on their design, approach and personnel – all of which are incredibly difficult to get right – but also on their evaluation and reception, and thus on their broader contexts, which commissions have little or no control over.

However, the lessons that can be drawn go beyond reception and context and extend to the inherent shortcomings of such an approach.

First, while victims appreciate a chance to speak and be heard, the majority clearly submitted statements or memoranda or provided testimony in the hope that they would be heard and that some action would be taken to redress the injustices described. As one woman explained after a women’s hearing in Nakuru, she was glad that she had spoken and how, having told her story, the Commission would ‘come in and help.’

To be fair, the TJRC’s founders were aware of the inadequacies of speaking, which is why they included ‘justice’ in the title and gave the Commission powers to recommend further investigations, prosecutions, lustration (or a ban from holding public office), reparations and institutional and constitutional reforms.

However, on the question of whether recommendations would be implemented, the Commission rather naively relied on the TJRC Act (2008), which stipulated that ‘recommendations shall be implemented.’ However, such legal provisions proved insufficient. Amidst general scepticism about the Commission’s work, parliament amended the TJRC Act in December 2013 to ensure that the report needed to be considered by the National Assembly – something that is yet to happen.

Moreover, to document and acknowledge the truth requires that one hears from both victims and perpetrators. However, the latter often have little motivation, and much to lose, from telling the truth. This was evident in Kenya where, during the AMP hearings I attended, where I heard little that was new and not a single admission of personal responsibility or guilt. Instead, testimonies were characterised by five discursive strands of responsibility denied: denial through a transfer of responsibility, denial through a questioning of sources, denial through amnesia, denial through a reinterpretation of events and an assertion of victimhood, and denial that events constituted a wrongdoing. However, while AMPs denied responsibility, none denied that injustices had occurred. As a result, while the hearings provided little clarity on how and why a series of reported events may have occurred, they simultaneously drew attention to, and recognised, past injustice. In this way, they provided a public enactment of impunity: Kenya’s history was replete with injustice, but AMPs were unwilling to shoulder any responsibility for it.

This ongoing culture of impunity points to another issue, which is that – for most victims – injustices clearly do not belong to the past but to the present and future. The loss of a person or income, for example, often constitutes a course that now seems beyond reach – from the hardship that accompanies the loss of a wage earner to the diminished opportunities that stem from a child’s extended absence from school. However, the past also persists in other ways, from the injustices that never ended, such as gross inequalities or corruption, to fears of repetition and experiences of new injustice.

Unfortunately, the idea that one can ‘look backwards to reach forwards’ downplays the complex ways in which the past actually persists, and possible futures infringe on the present. This is problematic since it can encourage a situation where small changes dampen demands for more substantive reform. At the same time, it can facilitate a politicised assertion of closure that excludes those who do not buy into the absence of the past, the newness of the present, or the desirability of imagined futures and provides a resource to those who seek to present such ‘difficult people’ as untrusting, unreasonable and unpatriotic.

This is not to say that truth commissions are useless and should never be considered. On the contrary, many view speaking as better than silence, while the commission’s report provides a historical overview of injustice in Kenya and a range of recommendations that activists and politicians are using to lobby for justice and reform.

However, when introduced, truth commissions should be more aware of the importance of persuasive performances and how their initial reception and longer-term impact is shaped by broader socio-economic, political and historic contexts. Truth commissions also need to adopt a more complex understanding of the ways in which the past persists, and possible futures infringe on the present and avoid easy assertions of closure.

Ultimately, such ambitious goals as truth, justice and reconciliation require not Freudian ‘talk therapy’, although catharsis and psycho-social support are often appreciated, but an ongoing political struggle, and substantive socio-economic and political change, which something like a truth commission can recommend, and sometimes contribute to, but cannot be expected to achieve.

This article was first published in the Review of African political Economy (ROAPE).

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