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Building Bridges to Nowhere: Notes From an Insider

7 min read.

Returning to play her part in changing Kenya after years abroad, MIRIAM ABRAHAM encountered cynicism and greed from her age mates among the professional elite. Yet it paled in comparison to her experience in an independent public body. Back in her adopted home, she reflects on the March 9 handshake, a deal sealed for the survival of a treacherous elite.  

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It was January 2017, and instead of enduring another bitter winter in my adopted home, I was having nyama choma with friends in Nairobi. It was refreshing watching the children playing nearby, as adults indulged in our national hobby- politics. Although the setting made me miss my children terribly, I was full of optimism. I was back in my motherland to play my part in making my country better. The call to national duty after over 15 years abroad justified the family, financial and professional sacrifices I had decided to make.

A friend tapped me on my arm. I had temporarily forgotten that this was not just a nyama choma event but a crash course from my friends on “how to survive in Kenya”. I listened attentively as my friends gave me tips. One reminded me that this was my opportunity to pay any outstanding mortgages and debts and invest in choice property in Nairobi. Another reminded me that every time I raise my hand to vote during board meetings, there should be an amount equivalent to my five fingers, in millions, deposited to my account. Yet another told me of how I needed to ensure that I surrounded myself with “my people” to protect me. Not to be outdone, another reminded me that since I could never understand how to “make deals” as a “foreigner”, I needed to introduce him to the person in charge of procurement and the rest would be taken care of.

It was not clear to me how much of this was serious talk and how much of it was said in jest – the sarcasm that those of my generation have resorted to in an attempt to escape the helplessness they face as the country careens into a pit. The advice nevertheless captured what I ended up experiencing throughout my time in Kenya. It is assumed that the only reason one takes up a public service position is to enrich themselves, their families and their cronies. And it is indeed not a far-fetched conclusion, in most cases.

I listened attentively as my friends gave me tips. One reminded me that this was my opportunity to pay any outstanding mortgages and debts, invest in choice property in Nairobi. Another…that every time I raise my hand to vote during board meetings, there should be an amount equivalent to my five fingers, in millions…Yet another told me of how I needed to ensure that I surrounded myself with “my people” to protect me… Not to be outdone, another reminded me that since I could never understand how to “make deals” as a “foreigner”, I needed to introduce him to the person in charge of procurement and the rest would be taken care of.

My conclusion at the end of my brief Kenya sojourn is that we, the professional elite, celebrate mediocrity, shun integrity and worship corruptly acquired wealth. The end justifies the means, even if this includes taking the lives of children, men and women. We easily forgive those that rob from public coffers and forget those that sacrifice their lives in the fight for justice and good governance.

Ours is a transactional country. It is therefore not a coincidence that Kenyans quickly satirised the 9 March 2018 “handshake” between President Uhuru Kenyatta and former Prime Minister Raila Odinga as a handcheque. Because how else could one explain the political convergence of views between those who disenfranchised millions of Kenyans by organizing violent protests against the sham October 2017 election and those that benefited from a circus of a presidential election?  As a friend of mine reminded me in January, “it will be just a matter of time before the political elite sit around the table and share the loot”. I do not know whether there is any financial loot that has been shared. But certainly, we can all see the associated trappings of power being openly enjoyed by those who just two months ago were victims of State harassment.

Recent developments make it difficult to argue against those who have always held that politicians cultivate their ethnic bases to increase their political bargaining chips in preparation for the next ‘handcheque’. Even when the larger strategic interests of political parties and alliances are at stake, if there is an opportunity to make money, the financial imperative invariably wins the day. It reminds me of July last year when the lawyers of two opposing coalitions walked hand in hand to negotiate a procurement deal, which in the larger scheme of things would have negatively affected the chances of one of the coalitions “winning” the presidential election. But it appears that any opportunity to make money could not be left unattended.

Ours is a transactional country. It is therefore not a coincidence that Kenyans quickly satirised the 9 March 2018 “handshake” between President Uhuru Kenyatta and Prime Minister Raila Odinga as a handcheque. Because how else could one explain the political convergence of views between those who disenfranchised millions of Kenyans by organizing violent protests against the sham October 2017 election and those that benefited from a circus of a presidential election?

This partly explains why almost all the constitutional bodies, the media and even the legislature in the country are under State capture. At the moment, the Judiciary is the last bastion of hope. Now that President Kenyatta and his Deputy President have ‘apologized’ to Kenyans for unnamed trespasses, we should expect these institutions to remain under the spell of the looters. They have free rein. The press has caved in, civil society is severely constrained, bloggers and activists are constantly harassed by the State and the majority of Kenyans remain silent, puzzled as they watch those on whom they had pinned their hopes to “save” the country make numerous “handshaking” tours.

We who easily forgive have “moved on” and are leaving it to a tiny political elite to implement its Putin-esque plan. Let me refresh your mind on this.: in what the Russians call ‘castling’, President Vladimir Putin, restricted from serving a third consecutive term as president in 2008, had Dmitry Medvedev run for President while he took over the Prime Ministerial position. Putin was still the de facto President. In 2012, he formally returned as President and then “overwhelmingly won” his “second” term in this year’s election, assuring him of power until 2024.

This appears to be the model the political establishment is using, if we are to take seriously what we are hearing from informal regime mouthpieces such as Tiaty Member of Parliament, William Kassait Kamket and COTU strongman, Francis Atwoli. Hon. Kamket has proposed the creation of a ceremonial presidency and a premier position, while Atwoli believes that President Uhuru Kenyatta is too young to retire and must continue in power. This is the Ka-Putin plan, articulated in Kenyan-ese. In their thinking, the Luo will be happy to finally achieve their long sought-after presidential dream while the Kikuyu will maintain their own “young man” in power. It gives the plotters plausible deniability for not “paying back the debt” to the Deputy President and thus protect the Kikuyus living in the Rift Valley. In their wisdom, there are only three ethnic groups in Kenya. Once their interests are taken care of, all other socio-economic and grievances of marginalisation are a non-issue.

In what the Russians call ‘castling’, President Vladimir Putin, restricted from serving a third consecutive term as president in 2008, had Dmitry Medvedev run for President while he took over the Prime Ministerial position. Putin was still the de facto PresidentIn 2012, he formally returned as President and then “overwhelmingly won” his “second” term in this year’s election, assuring him of power until 2024.

Constitutional changes to prolong terms of office or satisfy elite demands are the flavour du jour. Apart from the Russians, the Chinese have done it recently. Rwanda and Uganda have done it and the Burundians are set to give a soft landing to President Kenyatta’s agemate, Pierre Nkurunziza, when they change the Constitution on 17 May. It appears that our elite are itching to join the bandwagon.  And as always happens with our national politics, there will be a bogeyman who has to be deterred by any means – the justification for the planned constitutional amendments. Kenyans will be reminded of the violence in the Rift Valley in 1992, 1997 and 2007 and be warned of Armageddon if the Constitution is not amended to deter the Deputy President from ascending to the presidency.  Operation Stop Ruto is gaining steam and Kenyans will soon be convinced that this is the only way to save Kenya.

A friend I have known for many years recently wrote to me: “The goose is cooked. No way of stopping that train. I am just scared of that guy.” I did not respond to the message. I could not. Not because I did not share my fear for the guy he was talking about – our Deputy President.  I have been a victim of his threats and I know that they are not empty.

I watched how he remotely controlled and manipulated a constitutional body for which I worked. I still wake up in the middle of the night with nightmares of the ordeals I was subjected to, carried out with express instructions from him.

I did not respond to the message because it hit me that even those that I thought to be “progressive” have bought into the bogeyman notion, a red herring to turn public attention to the urgency of removing an individual, like we did with the Moi must go slogans, without questioning the underlying system that has allowed such leaders to thrive. I did not respond because as I was reading his message, the building bridges to nowhere initiative was being launched. And once again, the political elite were gaming the system, as they always do.

Let me be clear, I am not against reconciliation. It is long overdue. But building lasting bridges needs to be anchored in more than declarations and photographs of handshakes. The central motivation cannot be an attempt by a government to buy legitimacy after what was largely a sham October 2017 presidential election. It cannot be about an opposition party attempting to join the “meat eating” team instead of “salivating from the outside”, to use President Kenyatta’s own words. It cannot be about an icon in the fight for democracy seeking relevance as he ponders his next step. Nor can it be just about stopping the Deputy President from inheriting the big seat.

Reconciliation, building bridges, requires difficult conversations and hard work. It requires us to ask tough questions about our national ethos. It requires the kind of concerted effort that we witnessed in the1990s during the struggle for the Second Liberation, so called. The Young Turks who led that struggle are clearly now failing to practice what they previously espoused. When given the opportunity to govern after the controversial elections in 2007, they joined the looters, as narrated by John Githongo in his recent article, The State of the Nation: Corruption: A brief history- 1997 to 2018.

 Back to the January 2017 nyama choma outing: I defied the advice on how to survive in Kenya. I chose not to join the looters. There are many Kenyans like myself. That is why, like Prof. Makau Mutua, I will still hold onto the naïve, childish optimism for a better Kenya. I still believe that there is a constituency of millennials ready to wrest the baton from the “Young Turks”. I still believe that millennials have a chance to fix the current crisis of leadership and develop an alternative leadership to the current elites that continue to divide the country rather than unite it.

The “Young Turks” have failed to deliver the vision they had in their heyday. They will resist change by any means necessary.  They will conjure up the spectre of “Ruto bogeyman” to justify constitutional amendments precisely to entrench themselves in power or ‘return from the ‘cold’, as they are wont to put it.  But the millennials have more going for them to deliver the change. History is on their side. The future of Kenya is in their hands, not in those busy building bridges to nowhere.

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Ms. Abraham is a governance and institutional development expert.

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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
Photo: Flickr/GovernmentZA
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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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