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Fear and Loathing in the Eternal Sunshine of Kenya’s Elite Pacts

7 min read.

The uthamaki code, the sense of Kikuyu elite entitlement, has defined Kenya’s politics for 55 years, a history of assassinations, blood oaths and cloak-and-dagger games. Since 1967, the Kalenjin elite have been the other protagonist in this power arrangement, offering land in exchange for a seat at the high table, and taking hostage the Kikuyu diaspora in the Rift Valley in this matrix of fear. How to break the cycle and liberate Kenya? By DAVID NDII

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Fear and Loathing in the Eternal Sunshine of Kenya’s Elite Pacts
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I was having coffee with a friend a few days after ‘The Handshake”, as the Uhuru Kenyatta-Raila Odinga rapprochement has come to be known, and noticed three gentlemen sitting at the next table, stealing glances. They stood up to leave, walked to our table and offered compliments. One of them lingered on. I invited him to sit. My friend had to leave. We sat for another hour. He did most of the talking.

I need to disclose at this point that the three gentlemen were prominent Kikuyus. This was the first of several encounters I’ve had with the Kikuyu elite since then, a group which, for obvious reasons, I have not had occasion to interact with lately.

I have learned from these encounters that the rapprochement has precipitated both relief and fear. There are two related parts to this sense of relief. First, it has given Uhuru Kenyatta a political lifeline. As one gentleman put it: “Our man (Kenyatta)” was being choked. He could not breathe. Now he can breathe.” Second, it portends an alternative to what seemed to be a certain succession of Kenyatta by his deputy William Ruto. But underlying this sense of relief is fear. Fear of what reneging on the pact between Kenyatta and Ruto portends. The word that has been used most frequently is “hostages”, meaning of course the Kikuyu in the Rift Valley diaspora.

Once he survived the aftermath of the events of `69, Jomo Kenyatta became a small god. HIs London-trained consigliere, Attorney-General Charles Njonjo, decreed imagining his mortality lése majesté to ward off the rival faction within The Family, which had its own ideas for the old man’s imminent succession. So people stopped imagining. Then, he died. A sunny Tuesday morning. Just like that. And all the King’s horses and all the King’s men simply couldn’t put it together again.

There is also a sense of helplessness borne of a realization that their political destiny is out of their hands, set to be determined by a duel between their enemies, the Kalenjiin, who hold the hostages, and the Luo, with whom they have a toxic political feud going back half a century.

It’s a choice between the devil and the deep blue sea.

The Kikuyu elite is the author of its predicament.

As many Kenyans will know, we started off at independence with a multiparty, federal, parliamentary system. A series of political manoeuvres between 1963 and 1969 changed Kenya from a multiparty, federal parliamentary system to a one-party dictatorship. The independence constitution, signed in Lancaster House in March, 1963 by the main political protagonists, KANU and KADU, did not last the year. Shortly after independence, the opposition party KADU dissolved itself. Its members joined KANU making Kenya a de facto one-party state. Multiparty politics was restored briefly when in 1966 KANU deliberately restructured its leadership to dilute Oginga Odinga’s party vice-presidency into eight positions, one from each of the provinces. This triggered the formation of the Kenya Peoples Union, and led subsequently to the “little general election.”The little general election would have been unnecessary had the constitution not been amended, precisely to frustrate the KPU, to require members who cross the floor to seek re-election. It would be the last multiparty election for 26 years.

Moi was appointed vice-president of the republic in 1967 following the sudden resignation of Joseph Murumbi, Odinga’s replacement. Moi was not a leading contender. His name did not feature at all in the frenzied speculation that went on for the three months that the position was vacant.

Jomo Kenyatta would have faced his first election challenge in 1969. His health was not good. Jaramogi was a definite challenger. Mboya was the obvious heir-apparent, and possible challenger in that election or the next. In 1968, the minimum age to contest the presidency was raised from 35 to 40. Mboya was then 38. On 5 July 1969, Mboya was assassinated. In October, KPU was banned and Odinga put under house arrest. In December at the general elections, Jomo Kenyatta was elected unopposed.

August 22, 1978 is one of those days when every Kenyan who was old enough remembers where they were and what they were doing when they heard the news. I was sitting under a tree reading a book. My father came home from work early afternoon, looking like he had seen a ghost.

Once he survived the aftermath of the events of `69, Jomo Kenyatta became a small god. HIs London-trained consigliere, Attorney-General Charles Njonjo, decreed imagining his mortality lése majesté to ward off the rival faction within The Family, as the Kenyatta inner circle was known, which had its own ideas for the old man’s imminent succession. So people stopped imagining. Then, he died. A sunny Tuesday morning. Just like that. And all the King’s horses and all the King’s men simply couldn’t put it together again.

Jomo bequeathed the Kikuyu elite not just a taste for power but a sense of entitlement – and in some quarters, a belief in manifest destiny. In his lifetime, it was proclaimed that the biki biki (motocycle outriders) would never cross the Chania, meaning power would never leave Kiambu. Oathing, which had begun sometime in 1968 soon after Kenyatta suffered a massive stroke in May of that year, was meant to bind the Kikuyu to this idea. Crossing the Chania takes you to Murang’a and onward to Nyeri. It was unthinkable that the power could leave Kikuyuland. It does not seem to have occurred to them that with Mboya dead and KPU banned, they had all but ensured that Moi would succeed Kenyatta. The 1976 change-the-constitution campaign, and the Plan B Ngoroko affair, in which a militia within the Anti-Stock Theft Unit was outfitted with top-of-the-range arms and training specifically to eliminate Moi, just in case – all that was too little too late.

Moi’s elevation to vice-president under Jomo belied a Faustian bargain with the Kalenjin elite—land for power. Of this they may not have been alive to at the time, but it was brought to their attention in 1992, and in 1997 and in 2007. In one of those extreme ironies of fate, the ICC indictments drove the Kikuyu and Kalenjin elite into an even tighter political embrace.

Under Moi, the ‘passing cloud’ that lingered slightly longer than anticipated, the struggle for power became a quest to return the river to its course (gucookia ruui mukaro).

But what Jomo passed on was a vicious predatory presidency whose allure the Kikuyu elite seem unable to resist but live in mortal fear of it being out of their hands. We say in Gikuyu kahiu koohiga muno gatemaga mwene (when a knife is too sharp it cuts the owner). Moi wielded the knife that Jomo sharpened.

In 2002, Kibaki entered into a political pact to dismantle this power structure, but as soon as he assumed office, he regrouped with the Jomo-era cronies and subverted the pact. While both the Bomas Convention and the Committee of Experts (CoE) proposed a parliamentary system with a French-style dual executive, political skulduggery saw us end up with an American style pure presidential system that had never been contemplated.

But more poignantly, Moi’s elevation to vice-president under Jomo belied a Faustian bargain with the Kalenjin elite—land for power. Of this they may not have been alive to at the time, but it was brought to their attention in 1992, and in 1997 and in 2007. In one of those extreme ironies of fate, the ICC indictments drove the Kikuyu and Kalenjin elite into an even tighter political embrace.

For the past four years, Uhuru Kenyatta and his acolytes have fought tooth and nail to restore the ancien regime. The happy-go-lucky high-fiving kamwana was enthroned muthamaki (king). He took to donning military fatigues but the tough guy act never took off, bloodshot eyes notwithstanding. By the time of the August 2017 elections, a case for benevolent dictatorship was being made. For the second term we were promised a “lethal, brutal and more ruthless” Kenyatta. In a country that tottered on the edge of an ethnic conflagration only a decade ago, the hubris and ethnic jingoism we have been treated to over the past few years beggars belief.

For whatever reason, it appears that the Kikuyu power elite had once again not contemplated that there being little, if any, prospect of Uhuru Kenyatta being succeeded by another Kikuyu, that the knife they were so intent on sharpening would soon be wielded by others. I have contended, including to members of this cabal, that Uhuru Kenyatta, and the Kikuyu community in general had more to gain from a free and fair election than the opposition. Why so?

losing the election would have by default discharged the political pact to deliver the presidency to his deputy in 2022. In short, my contention was, and remains, that Uhuru Kenyatta had everything to gain and nothing to lose from a free and fair election. Not so his partner in crime.

Win or lose, Uhuru Kenyatta would have been credited with only the second free and fair election (after the 2002 contest), and the first one with the incumbent contesting. If he won, he would have eased the burden of illegitimacy from the 2013 election and gained some control over his legacy. If he lost, he would have earned accolades for accepting defeat, as he did in 2002 and earned his place in history as the first Kenyan president to do so. A legacy and continental statesman role would have been assured—incumbents graciously conceding and going home is still a big deal on this continent. More significantly, losing the election would have by default discharged the political pact to deliver the presidency to his deputy in 2022. In short, my contention was, and remains, that Uhuru Kenyatta had everything to gain and nothing to lose from a free and fair election.

Not so his partner in crime. The 2022 deal was always tenuous in so far as it was predicated on Kikuyus voting en masse for William Ruto be it out of reciprocity or fear. The surer way for Uhuru to deliver on the bargain was to establish the system now characterized as electoral authoritarianism— sham elections, a captive judiciary and a parliament to rubber-stamp it all.

The Kalenjin elite has been at the centre of power for all but five years (2003-7) of the 50 years since Moi became vice president in 1967. The country has paid for it in spades – in blood and plunder. In 2007, facing the prospect of staying “in the cold” for another five, they executed a thousand hostages. Twenty-five years on, our democratic transition remains hostage to this political neurosis. We need to know how much longer. We need to know how much more we owe this rapacious cabal who have come believe apparently, that plunder is a birthright.

It is fortuitous that Daniel arap Moi is still here. There is one more thing he can still do for his country. He can discharge this debt. All he has to do is call his people and tell them to let the Kikuyu settlers be.

As for the Kikuyu community, it needs to reflect honestly and deeply about its obsession with power. Kahiu koohiga muno gatemaga mwene.

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David Ndii is a leading Kenyan economist and public intellectual.

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Cherry-Picking of Judges Is a Great Affront to Judicial Independence

Uhuru Kenyatta’s refusal to fulfil his constitutional duty to appoint and gazette JSC-nominated judges is a tyranny against the judiciary.

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The 2010 constitution placed an onerous responsibility on the judiciary. That responsibility is to check that the exercise of public power is done in a manner that is compliant with the constitution. The constitution brought everyone, including the president – in both his capacities as the head of state and head of national executive – under the law. Hence, the judiciary has the final word when called upon to determine whether anything done or said to be done by anyone in the exercise of public power is constitutional.

To ensure that judges and magistrates can perform this task, the 2010 constitution created a strong architecture to secure judicial independence. In a nutshell, judicial independence simply means creating the necessary guardrails to ensure that judges and magistrates are and feel fully protected to make the right decision without fear of reprisal and that the judiciary has the facilities it needs to create an enabling environment to facilitate judges and magistrates’ abilities to undertake that core mandate. Ordinarily, the critical aspects of judicial independence include decisional, operational/administrative as well as financial independence.

Operational independence safeguards the ability of the judiciary to run its affairs without interference from other arms of government or from anyone else. Financial independence on the other hand ensures that the judiciary is well funded and fully in control of its funds so that its core duty (decision-making) is not frustrated by either lack of funds or the possibility of a carrot–and-stick approach where the executive dangles funding to extract the decisions it wants. In this regard, the constitution creates a judiciary fund and places it under the administration of the judiciary. Unfortunately, the national government and the treasury have continued to frustrate the full operationalisation of the judiciary fund.

Centrality of an individual judge’s independence

Importantly, the foundational rationale for judicial independence and its different facets is securing the decision maker’s (judge and magistrate) individual independence. This is commonly referred to as decisional independence. In the end, the judiciary exists for only one reason: to adjudicate disputes. In this regard, the person who is charged with decision making is the one who is the primary beneficiary of judicial independence. Of course, ultimately, everyone benefits from an independent judiciary.

Still, the constitution has specific and high expectation of the decision-maker, including that he or she makes decisions based only on an objective analysis of the law and the facts. The decision maker must not be mesmerised or cowed by power. He or she should never be beholden to power – in the present or the future. Simply put, under the constitution, a decision maker should never have to think about personal consequences that he or she may suffer for making a decision one way or another as long as that decision is based on an honest analysis of the law and the facts. Put a bit differently, the decision maker should never have to make (or even think of calibrating) his or her decision to please those in or with power – either within the judiciary or outside it – with the expectation that it will help him or her to obtain professional favours, promotion or to avoid reprisals.

And this is why Uhuru Kenyatta’s cherry-picking of who should or should not be appointed judge is the greatest threat to judicial independence in Kenya.

But first a quick word on what the constitution says about the process of selecting, appointing and disciplining judges.

Selection and disciplining of judges

Before 2010, the president played a controlling role in the selection of judges. This meant that the surest way to become and remain a judge was by being in the good books of the president and his handlers. The result was that the judiciary was largely an appendage of the executive – and could hardly restrain the abuse of public power by the president or other ruling elites. The 2010 constitutional provisions on the judiciary were deliberately designed to eliminate or highly diminish this vice.

The power to select judges was given to the Judicial Service Commission (JSC), a body representative of many interest groups, the president key among them. Constitutionally, the president directly appoints three of the 11 JSC members: the attorney general and two members representing the public. But with his usual ingenuity at subverting the constitution, Uhuru Kenyatta has added to this list a fourth – by telling the Public Service Commission (PSC) who should be its appointee. Regardless, while there are always endless wars to control the JSC especially by the executive, the many interests represented complicate a full takeover of the JSC by the executive or any other interests. And that is partly what the constitution intended to achieve. The law – which the court has clarified numerous times – is that once the JSC has nominated persons to be judges, the president’s role is purely ceremonial, and one that he performs in his capacity as head of state. He must formally appoint and gazette the appointment of the judges. No ifs, no buts.

This is why Uhuru Kenyatta’s cherry-picking of who should or should not be appointed judge is the greatest threat to judicial independence in Kenya.

In fact, the law further clarifies that not even the JSC can reconsider its recommendation once it has selected its nominees. There is a good reason for this unbendable procedure – it helps to insulate the process from manipulation especially once the JSC has publicly disclosed its judge-nominees. Still, the constitution preserves for the president, the JSC and citizens the option of pursuing a rogue nominee by providing the realistic possibility for the initiation of a disciplinary and removal process of a judge even after appointment if there are legitimate grounds for such action.

In this regard, the JSC also has the responsibility to discipline judges by considering every complaint made against a judge to determine whether there are grounds to start proceedings for removal. It is to be noted that the president has more substantive powers in relation to the removal of judges. This is because if the JSC determines that there are grounds for the removal of a judge, the president’s hand is mostly unrestrained with regards to whom he appoints to sit on the tribunal to consider whether a judge should be removed. Unfortunately, there is an emerging trend that indicates that Uhuru undertakes this task in a biased manner by subjectively selecting tribunal members who will “save” the judges he likes.

The injustice of cherry-picking

Now, back to the injustices of Uhuru’s cherry-picking of judges for appointment.

The injustice is horrific for both the appointed judges and those who are not appointed, especially those of the Court of Appeal. Under the 2010 constitution, you do not become a superior court judge by chance.. For High Court judges nominated to the Court of Appeal, this is earned through hard work, countless sleepless nights spent writing ground-breaking judgments and backbreaking days sitting in court (likely on poor quality furniture) graciously listening to litigants complain about their disputes all day, and then doing administrative work to help the judiciary keep going. All this while maintaining personal conduct that keeps one away from trouble – mostly of the moral kind. Magistrates or other judicial staff who move up the ranks to be nominated judges endure the same.

The injustice is horrific for both the appointed judges and those who are not appointed, especially those of the Court of Appeal

If ever there was a list of thankless jobs, those of judges and magistrate would rank high on the list. It is therefore completely unacceptable that a faceless presidential advisor –  probably sitting in a poorly lit room with depressing décor and a constantly failing wifi connection, and who likely has never met a judge – can just tell the president, “Let’s add so and so to the list of judges without ’integrity’. And by the way, from the last list, let’s remove judge A and add judge Z”. Utterly unfeeling and reckless. Worse, the judge is left to explain to the world what his/her integrity issues are when he or she knows nothing about them.

Psychological tyranny

Cherry-picking also creates a fundamental perception problem. Kenya’s Supreme Court has confirmed that perception independence is a critical element of independence. For litigants appearing before the judges who were appointed in cases involving the president or the executive, it will be hard to shake-off the stubborn but obviously unfair thought that the judge earned the appointment in order to be the executive’s gatekeeper. That is what minds do; they conjure up possibilities of endless, and at times, conspiracy-inspired thoughts. Similarly, those who appear before a judge who was left out will likely believe that the judge – who decides a case impartially but against the executive – is driven by the animus of non-appointment. And you can trust the president’s people to publicly say as much and even create a hashtag for it. Yet such perceptions (of a judge who is thought to favour or be anti-executive) are relevant because justice is both about substance and perception.

And that is the psychological tyranny of Uhuru’s unconstitutional action – for both the judges that have been appointed and to those who have not. It is, indeed, a tyranny against the judiciary and, in a smaller way, against all of us. Perhaps just as Uhuru intended it to be.

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COVID-19 Vaccine Safety and Compensation: The Case of Sputnik V

All vaccines come with medical risks and Kenyans are taking these risks for their protection and that of the wider community. They deserve compensation should they suffer for doing so.

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COVID-19 Vaccine Safety and Compensation: The Case of Sputnik V
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How effective is Kenya’s system for regulating new medicines and compensating citizens who suffer side-effects from taking them? Since March 2021, Kenya has been using the AstraZeneca vaccine supplied through  COVAX to inoculate its frontline workers and the older population. This is available to the public free of charge, according to a priority list drafted by the Ministry of Health (MOH). The Pharmacy and Poisons Board (PPB) also approved the importation of the Sputnik V vaccine from Russia, which was initially available through private health facilities only at a cost of KSh8,000 per jab, before the MOH banned it altogether. However, there were reports in the media that the vaccine continued to be administered secretary even after the ban.

Although side effects are rare, we know that all vaccines come with certain medical risks. Kenyans taking vaccines run these risks not just for their own protection, but also for that of the wider community. The state has a responsibility to protect citizens by carefully controlling the distribution of vaccines and by ensuring that adequate and accessible compensation is available where risks materialise. These duties are enshrined in the constitution which guarantees the right to health (Article 43) and the rights of consumers (Article 46).

A system of quality control before the deployment and use of medicines is set out in the Pharmacy and Poisons Act the Standards Act, the Food, Drugs and Chemical Substances Act and the Consumer Protection Act. However, the controversy over Sputnik V in Kenya has cast doubt on the coherence and effectiveness of this patchwork system. Moreover, none of these Acts provides for comprehensive compensation after deployment and use of vaccines.

Vaccine approval and quality control

Subject to medical trials and in line with its mandate to protect global health, WHO has recommended specific COVID-19 vaccines to states. Generally, WHO recommendations are used as a form of quality control by domestic regulators who view them as a guarantee of safety and effectiveness. However, some countries rely exclusively on their domestic regulators, ignoring WHO recommendations. For instance, the UK approved and administered the Pfizer vaccine before it had received WHO approval.

The COVAX allocation system fails to take into account the fact that access to vaccines within countries depends on cost and income.

By contrast, many African states have relied wholly on the WHO Global Advisory Committee on Vaccine Safety given their weak national drug regulators and the limited capacity of the Africa Centre for Disease Control (CDC). The Africa CDC itself deems vaccines safe for use by member states on the basis of WHO recommendations. Kenya has a three-tier approval system: PPB, Kenya Bureau of Standards and WHO. The PPB relies on the guidelines for emergency and compassionate use authorisation of health products and technologies. The guidelines are modelled on the WHO guidelines on regulatory preparedness for provision of marketing authorization of human pandemic Influenza vaccines in non-vaccine producing countries. However, prior to approval by PPB, pharmaceuticals must also comply with Kenya Bureau of Standards’  Pre-Export Verification of Conformity standards .

Vaccine indemnities and compensation 

To minimise liability and incentivise research and development, companies require states to indemnify them for harm caused by vaccines as a condition of supply. In other words, it is the government, and not manufacturers, who must compensate them or their families where required. Failure to put such schemes in place has undermined COVID-19 vaccine procurement negotiations in some countries such as Argentina.  Indemnities can be either “no-fault” or “fault”-based’.

No-fault compensation means that victims are not required to prove negligence in the manufacture or distribution of vaccines. This saves on the often huge legal costs associated with tort litigation. Such schemes have had a contested history and are more likely to be available in the Global North. By contrast citizens of countries in the Global South must rely on the general law, covering areas such as product liability, contract liability and consumer protection. These are usually fault-based, and require claimants to show that the vaccine maker or distributor fell below widely accepted best practice. Acquiring the evidence to prove this and finding experts in the sector willing to testify against the manufacturer can be very difficult.

By default, Kenya operates a fault-based system, with some exceptions. Admittedly, citizens have sometimes been successful in their claims, as in 2017 when the Busia County Government was ordered by the High Court to compensate victims of malaria vaccines. The High Court held that county medics were guilty of professional negligence, first by not assessing the children before administering the vaccines, and second by allowing unqualified medics to carry out the vaccination.

The problem is that the manufacturer has not published sufficient trial data on the vaccine’s efficacy.

In recognition of these difficulties, and in order to ensure rapid vaccine development during a global pandemic, WHO and COVAX have committed to a one-year no-fault indemnity for AstraZeneca vaccines distributed in Kenya. This will allow victims to be compensated without litigation up to a maximum of US $40,000 (approx. KSh4 million). To secure compensation, the claimant has to fill an application form and submit it to the scheme’s administrator together with the relevant evidentiary documentation. According to COVAX, the scheme will end once the allocated resources have been exhausted. The scheme also runs toll-free telephone lines to provide assistance to applicants, although the ministries of health in the eligible countries are also mandated to help claimants file applications.

Beneficiaries of the no-fault COVAX compensation scheme are barred from pursuing compensation claims in court. However, it is anticipated that some victims of the COVAX vaccines may be unwilling to pursue the COVAX scheme.  At the same time, since the KSh4 million award under COVAX  is lower than some reliefs awarded by courts in Kenya, some claimants may avoid the restrictive COVAX compensation scheme and opt to go to court. Because such claimants may instead sue the manufacturer, COVAX requires countries to indemnify manufacturers against such lawsuits before receiving its vaccines.

Sputnik V 

Sputnik V is different. Neither the WHO-based regulatory controls before use, nor the COVAX vaccine compensation scheme after use applies. Sputnik has not been approved by WHO or the Africa CDC. The PPB approved its importation in spite of the negative recommendation of Africa CDC, and in the face of opposition from the Kenya Medical Association. The rejection of Sputnik in countries like Kenya is partly due to the reluctance of Russia’s Gamaleya Institute to apply for WHO approval, partly because the manufacturer has not published sufficient trial data on the vaccine’s efficacy, and partly due to broader mistrust of the intentions of the Russian state. This may be changing as Africa CDC Regulatory Taskforce and European Medicines Agency are now reviewing the vaccine for approval while 50 countries across the globe have either approved its use- or are using it already. In Africa, Ghana  Djibouti, Congo and Angola have approved the use of Sputnik V with Russia promising to donate 300 million doses to the African Union. Such approvals have been hailed for providing an alternative supply chain and reducing overreliance on the West.

As regards compensation, Russia has indicated that it will provide a partial indemnity for all doses supplied. However, no clear framework has been set out on how this system will work. There has therefore been no further detail on the size of awards, and whether they will be no-fault or fault-based. This lack of legal specifics has added to the reluctance of countries around the world to adopt the vaccine.

As matters stand, therefore, the Kenyan government would not be able to indemnify private clinics importing and administering Sputnik V. The absence of a statutory framework on vaccine compensation by the state makes this possibility even less likely. Nor would compensation be available from the Gamaleya Institute. The only route then would be through affected citizens taking cases based on consumer protection legislation and tort law in the Kenyan courts. As we have noted, this is complex and costly. Claims might be possible in Russia, but these problems would be exacerbated by language barriers and differences between the legal systems, as well as the ambiguity of the Russian compensation promises.

The private sector can complement state vaccination efforts, but this must be done in a way that guarantees accessibility and safety of citizens.

Although the importers obtained a KSh200 million insurance deal with AAR as a precondition for PPB authorisation, the amount per claimant was restricted to KSh1 million, which is well below the WHO rates and the average tort rates ordered by Kenyan courts.  As an alternative to claiming against the manufacturers and distributors, injured patients might sue the Kenyan government. Such a claim would allege state negligence and dereliction of statutory and constitutional duties for allowing the use of a vaccine that has not been approved by global regulators such as WHO, thus exposing its citizens to foreseeable risks. This would be particularly attractive to litigants given the difficulties in recovering from the Russian authorities and the risk that Kenyan commercial importers would not be able to meet all possible compensation claims. Ironically, the use of the Sputnik V vaccine in private facilities still exposes the government to lawsuits even if it didn’t facilitate the vaccine’s importation and distribution.

What the government needs to do

The acquisition of vaccines has been undermined by the self-interested “nationalism” of states in the Global North. Only after buying up the greater part of available vaccines have they been willing to offer donations to the rest of the world. These highly publicised commitments fall far short of what is required in the Global South. Kenya’s first task must be to intensify its diplomatic efforts to increase supply through bilateral engagement with vaccine manufacturing states and in multilateral fora like the World Trade Organization, acting in alliance with other African states. Such steps are only likely to bear fruit in the medium term, however. In the short term, it is certainly sensible to involve private companies in vaccine procurement and distribution in order to supplement the supplies available through COVAX. This is recognised in Kenyan and international law as an acceptable strategy for securing the right to health. But it must be done in a way that guarantees accessibility and the safety of citizens. Accordingly, Kenya should encourage Russia (and all vaccine manufacturers) to publish full trial data showing effectiveness and risks, and to seek WHO approval on this basis. It should require them to establish and publicise detailed indemnity frameworks to allow for comprehensive and accessible compensation. It should acknowledge that citizens accepting vaccines are not only protecting themselves, but also the wider national and global community. With adequate regulation before use, the risk of doing so can be minimised and made clearer. But some risk remains, and those who run it deserve to be compensated for doing so. It is therefore imperative for Kenya to establish its own no-fault indemnity scheme for all state-approved vaccines, including those imported by the private sector.

This article draws from COVID-19 in Kenya: Global Health, Human Rights and the State in a time of Pandemic, a collaborative project involving Cardiff Law and Global Justice, the African Population and Health Research Centre, and the Katiba Institute, funded by the Arts and Humanities Research Council (UK).

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Gone Is the Last Of the Mohicans: Tribute to Kenneth Kaunda

As we mourn President Kaunda, my prayer is that the death of this great African son and leader will remind us of the sacrifices that he and his contemporaries who fought for Africa’s independence made.

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Gone Is the Last Of the Mohicans: Tribute to Kenneth Kaunda
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17 June 2021

Tonight, I was welcomed in Addis Ababa, Ethiopia, by the sad news of the death of the first President of the Republic of Zambia and a founding father of the nation, His Excellency Dr. Kenneth Kaunda.

In this moment of great loss to Zambians and indeed all Africans, I wish to express my heartfelt condolences to the Kaunda family, President Edgar Lungu, and the government and people of the Republic of Zambia.

The demise of President Kaunda at the grand old age of 97 years brings to end the pioneers and forefathers who led the struggles for decolonisation of the African continent and received the instrument of Independence from the colonial masters in Africa.

Let all Africans and friends of Africa take solace in the knowledge that President Kaunda has gone home to a well-deserved rest and to proudly take his place beside his brothers such as Jomo Kenyatta of Kenya, Kwame Nkrumah of Ghana, Julius Nyerere of Tanzania, Habib Bourguiba of Tunisia, Léopold Sédar Senghor of Senegal, Nnamdi Azikiwe of Nigeria, Ahmed Sékou Touré of Guinea, Félix Houphouët-Boigny of Côte d’Ivoire, Patrice Lumumba of Congo, Nelson Mandela of South Africa to name but a few.

All of them, without exception, were nationalists who made sacrifices in diverse ways. Some, like Patrice Lumumba, untimely lost their lives soon after independence. We are consoled that God granted President Kaunda long life to witness the progression of Africa through five decades of proud and not-so proud moments.

In December 2015, I visited President Kaunda at his home in Lusaka in what was to be our last meeting. As we discussed about everything from family to politics in our two countries and indeed in Africa generally, I asked him if the Africa that we have today is the Africa for which he and his contemporaries struggled and fought. President Kaunda was visibly pained in his response and at some point he broke down and wept. It was obvious to me how disappointed he was about some of the challenges that have plagued our continent for decades since independence.

As we mourn President Kaunda, my prayer is that the death of this great African son and leader will remind us of the sacrifices that he and his contemporaries who fought for Africa’s independence made. Let it remind us of the vision that they had for Africa; their hopes and aspirations; their dream for a free, strong, united and prosperous Africa. Let us, African leaders and people, never let the labour of these heroes past be in vain.

Rest well, KK. Africa is free and will be great.

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