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Revisiting the Obama Legacy

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His whistle-stop low-key visit to Kogelo may have puzzled some, his rousing speech marking Madiba’s centenary may have been pitch-perfect, but while Obama was a class act (especially when compared to Trump), his capitulation to Wall Street, his foreign policy blunders in Libya and Syria, his drone counter-terrorism and his sustained attack on independent media and whistle-blowers raise disturbing questions about his real legacy. By RASNA WARAH.  

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Revisiting the Obama Legacy
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Unlike his last visit to Kenya in July 2015, when large sections of Nairobi were effectively under lockdown and when the country virtually came to a standstill when the “son of Kogelo” returned to his “homeland”, Barack Obama’s “homecoming” this week did not generate as much excitement or gushing tributes. This was expected, as the former United States president was not in Kenya on an official visit but was here to open a centre for youth in his father’s village, a brainchild of his half-sister Auma Obama. Besides the “welcome home” slogans that usually accompany such visits, Obama’s presence in the country hardly generated the kind of euphoria that was evident the last time he came to Kenya – this time the euphoria was more apparent in South Africa, where Obama delivered an inspiring lecture on the anniversary of Nelson Mandela’s 100th birthday after his Kenya visit.

Not to mention that his visit coincided with a highly controversial and embarrassing summit in Helsinki that saw President Donald Trump essentially throw his own intelligence services under the bus in the presence of the Russian President Vladimir Putin, who himself spent some time as a KGB intelligence officer. The contrast between the megalomaniacal, misogynistic and fundamentally dishonest Trump and his predecessor – the charismatic, intelligent and eloquent Obama who has rock star appeal – was painfully evident. When Obama works a room, you can be sure he will gain more converts. His messiah-like messages have silenced even his most vocal critics. On the other hand, Trump’s utterances generally elicit shock, followed by a deep sense of trepidation. After that bizarre summit in Helsinki, Americans and the world are grappling with the idea that the US president might have been “captured” by the Russian state.

And unlike Bill Clinton and Trump, there is also no whiff of a sexual scandal surrounding Obama. Obama never really knew his Kenyan father, who abandoned him when he was just a toddler, but this childhood trauma does not seem to have had a damaging effect on his own relationship with his wife Michelle and his two daughters. Everyone knows, and can see, that he is a man who is deeply committed to his family and is not threatened by strong women.

Obama brought a rarefied dignity to the Oval Office. He will be remembered for his reflective leadership style and the seriousness with which he took his responsibilities as leader of the most powerful nation on earth. He has definitely earned a name in the history books for not just being the first black (or rather, mixed race) president of the United States, but also for mending decades-old fences with countries such as Cuba and Iran. He will be remembered, among many of his other accomplishments, for advocating for the rights of all people, be they racial minorities, gays, people with disabilities or women.

Obama never really knew his Kenyan father, who abandoned him when he was just a toddler, but this childhood trauma does not seem to have had a damaging effect on his own relationship with his wife Michelle and his two daughters. Everyone knows, and can see, that he is a man who is deeply committed to his family and is not threatened by strong women.

However, there are many things that Obama failed to accomplish, and many things that he actually made worse. Despite his African heritage, he failed to bridge the racial divide in America; some believe that race relations may have worsened under his tenure, perhaps the result of a backlash against his presidency and against black people’s aspirations for equality. This backlash is probably what got his successor Trump elected. Racism has now become an epidemic in America, and has demolished the myth that the US is a land where everyone – regardless of race – enjoys equal freedoms and rights. While it was not Obama’s job to fix centuries-old prejudices in America, he failed to address the issue of racism in America forcefully.

But it is Obama’s foreign policy that has left many of his supporters puzzled. Obama strengthened Clinton’s “no American boots on the ground” policy in foreign conflicts by intensifying drone attacks in places such as Pakistan, Yemen and Somalia, which are believed to have led to many civilian deaths and which are said to have led to more radicalisation. Most people are not aware of the fact that Obama used more drones against terror suspects than his predecessor George Bush, who was more prone to engage American troops in direct combat in places such as Iraq and Afghanistan.

There are many things that Obama failed to accomplish, and many things that he actually made worse. Despite his African heritage, he failed to bridge the racial divide in America; some believe that race relations may have worsened under his tenure, perhaps the result of a backlash against his presidency and against black people’s aspirations for equality. This backlash is probably what got his successor Trump elected. Racism has now become an epidemic in America.

When Barack Obama became president, the American public believed that the US government would focus on the economy and scale down its wars and counterterrorism operations. However, while Obama did bring back troops from Iraq, as he promised, the war on terror became more clandestine. He increased the use of drones that targeted suspected terrorists (which also led to several deaths of innocent civilians, including children) and continued with mass electronic surveillance. Yet despite the billions spent on intelligence and security, groups such as the Islamic State still managed to take root under his watch. And Guantanamo Bay, the US detention facility in Cuba established for terrorist suspects, still remains open, though the number of detainees have fallen significantly from about 700 under George Bush to just 40 today.

A few years ago, The Washington Post reported that the Obama administration had built a “constellation of secret drone bases” in the Arabian Peninsula and the Horn of Africa, including one site in Ethiopia, ostensibly to help the US better able to monitor and control terrorists, and also allow the superpower to gain access to the region’s natural resources. Drone activity in Somalia apparently intensified in the country between June and September 2011, weeks before Kenya’s invasion of Somalia in October 2011. Obama’s supporters may argue that targeted drones are less damaging than direct conflict, but those who have suffered from these attacks do not quite feel the same way.

The Obama administration’s support of opposition groups in Syria has also been criticised for turning what might have been a short civil war into a long-drawn conflict that gave birth to terrorist organisations (which masqueraded as moderate Islamist rebel forces) such as the Islamic State in Iraq and Syria. No one knows yet how or where the chips in Syria will fall, but history may judge Obama harshly for his intervention there.

But perhaps Obama’s most harmful intervention in a foreign country was his decision to support a “regime change” in Libya. While most agree that Muammar Gaddafi was a dictator, under his strong-man leadership style Libya remained a stable and prosperous country. When US, British and French warplanes bombed Libya in the name of defending human rights and when Gaddafi was killed, the country descended into chaos and anarchy as factions fought each other for supremacy, just like what happened in Iraq when George Bush decided to lead a regime change there.

The countries that participated in the Libyan bombings are not likely to admit this but there would be no flood of refugees entering Europe via Libya if Gaddafi was still in charge. His regime kept Europe safe from human traffickers who are now exploiting vulnerable Syrians and poor Africans and making a fortune in the process. I am sure this uncomfortable truth doesn’t sit well in Obama’s conscience and will haunt him for a long time to come.

Meanwhile, the jury is still out on Obama’s decision to find and kill Osama bin Laden. Could it be that this killing was extra-judicial? Bin Laden’s sons have accused Obama of violating basic legal principles by killing an unarmed man, shooting his family and disposing the body in the sea. Bin Laden’s son Omar, who has publicly denounced violence of all kinds, has raised the question of why his father was not arrested and tried in a court of law, but his voice was muted by the self-congratulatory stance of the Obama administration and its cheerleaders who viewed the killing as justified in line with the US government’s war against terror.

Critics of Obama also point out that press freedom worsened under his leadership and whistleblowers were unfairly vilified – despite Obama’s stated commitment to protect freedom of expression. Salon.com commentator Glenn Greenwald has said that the Obama administration launched a broad (and possibly unprecedented) war on whistleblowers and investigative journalists, including harassing WikiLeaks supporters by detaining them at airports and seizing their laptops without warrants.

Former New York Times reporter David Shipler has chronicled the many ways the Obama administration created an atmosphere of fear among journalists and ordinary citizens, including by renewing the notorious Patriot Act that enhanced the US government’s surveillance powers and gave security agents authority to comb databases and emails of suspected criminals and terrorists. Shipler claims that press freedom weakened under Obama and that the US president allowed draconian search-and-seizure methods used by the very dictators he often denounced.

“The most odious aspect of this Climate of Fear is that it fundamentally changes how the citizenry thinks of itself and its relationship to the Government. A state can offer all the theoretical guarantees of freedom in the world, but those become meaningless if citizens are afraid to exercise them. In that climate, the Government need not even act to abridge rights; a fearful populace will voluntarily refrain on its own from exercising those rights,” said Greenwald, who gained notoriety after his disclosures of classified documents by the American whistleblower Edward Snowden that were published in The Guardian newspaper in 2013.

Former New York Times reporter David Shipler has chronicled the many ways the Obama administration created an atmosphere of fear among journalists and ordinary citizens, including by renewing the notorious Patriot Act that enhanced the US government’s surveillance powers and gave security agents authority to comb databases and emails of suspected criminals and terrorists. Shipler claims that press freedom weakened under Obama and that the US president allowed draconian search-and-seizure methods used by the very dictators he often denounced.

Meanwhile, Snowden is still holed up in Russia because he fears he will be arrested if he returns to the United States. Snowden revealed to the world how the terrorist bogeyman has been used to conduct mass surveillance and to spy on civilians through mobile phones and the Internet. These activities are clearly unconstitutional and violate the US Bill of Rights, but they are tolerated because the American public has been made to feel sufficiently afraid to not ask too many questions.

In The Rise of the American Corporate Security State, Beatrice Edwards, the Executive Director of the Washington-based Government Accountability Project, shows how the withdrawal of Americans’ rights, including their right to privacy, has been accomplished because Americans have been repeatedly told that they are facing imminent danger. Americans have thus willingly surrendered their civil rights because they are frightened. This clampdown on civil rights intensified during George W. Bush’s administration but became more secretive under Obama’s.

The nexus between government and big corporations has also been strengthened. The war on terror has been extremely lucrative for private corporations providing security and intelligence services. Edwards believes that clandestine electronic warfare is not going to go away any time soon, as the business of intelligence has proved to be extremely profitable for certain corporations. US corporations and the US intelligence agencies are bedfellows in the deal. What’s worse, because this war is silent and invisible, Americans don’t know where or when it is being waged. This is a truly chilling scenario.

Since 9/11, the United States has spent more than $500 billion on intelligence, of which 70 per cent is spent on contracts with private corporations. And because security contracts are deemed to be “secret” in the interest of national security, no one knows what the money is spent on. Edwards shows how increasing budgets for security and intelligence agencies have coincided with greater protection for rogue bankers and financial institutions, as happened during the 2008 financial crisis when Obama bailed out the very institutions that created the crisis in the first place. While Al Qaeda leaders became the targets of intense manhunts, illegal detention and execution, the millionaires who made thousands of people homeless and crashed the economy got away scot-free. Meanwhile, whistleblowers such as Snowden were deemed traitors for exposing unconstitutional and illegal surveillance of civilians around the world.

Edwards admits that Obama is not entirely to blame for this state of affairs because every US president is hostage to the big corporations and to what she calls “the Deep State”, a rogue branch of the US government that does not respond to the president, Congress or the courts. (Trump has given the Deep State a new meaning by referring to all those opposed to his policies as belonging to it.)

Since 9/11, the United States has spent more than $500 billion on intelligence, of which 70 per cent is spent on contracts with private corporations. And because security contracts are deemed to be “secret” in the interest of national security, no one knows what the money is spent on […]increasing budgets for security and intelligence agencies have coincided with greater protection for rogue bankers and financial institutions, as happened during the 2008 financial crisis when Obama bailed out the very institutions that created the crisis in the first place. While Al Qaeda leaders became the targets of intense manhunts, illegal detention and execution, the billionaires who made thousands of people homeless and crashed the economy got away scot-free.

Apologists for Obama claim that he is a pragmatist and could only do so much in a country where partisan politics and Congress determine government policy. Others say that Obama is just an American liberal, not the revolutionary that so many imagined him to be, and so cannot be judged for the radical reforms he failed to bring about but who can be credited for maintaining the model of freedom and democracy that is cherished by the majority of Americans.

The real struggle that Americans and the world faces is not about privacy versus security but about democracy versus tyranny. When large numbers of people around the world willingly give up their rights and freedoms in the name of counterterrorism, they create the perfect conditions for the emergence of dictatorship.

However, Edwards says that the real struggle that Americans and the world faces is not about privacy versus security but about democracy versus tyranny. When large numbers of people around the world willingly give up their rights and freedoms in the name of counterterrorism, they create the perfect conditions for the emergence of dictatorship.

This dictatorship has now manifested itself in the Donald Trump presidency – which may lead future historians to ponder whether Obama’s presidency set the stage for this alarming state of affairs. Obama is no doubt a wiser and much more intelligent president than Trump, but he did not manage to reverse or extinguish the dystopian ideology that led to the rise of Trumpism and its tendencies towards fascism that the world is now witnessing.

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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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Kenneth Kaunda: The Founding President of Zambia

Independence leader who fought white rule and helped shape postcolonial southern Africa

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Gone Is the Last Of the Mohicans: Tribute to Kenneth Kaunda
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This piece was originally published in the Financial Times and is republished in the Elephant with the express permission of the author.

Kenneth Kaunda, Zambia’s founding president who has died aged 97, was a towering figure of African nationalism and the anti-colonial independence movement that swept the continent in the 20th century. For his 25 years in office he fought apartheid, yet was more a victim of southern Africa’s white minority regimes than an instrument of their collapse.

After taking office at independence in 1964, Kaunda banned all political parties except his United National Independence party in 1972. In 1991 he reluctantly conceded multi-party elections, in which he was soundly defeated. Nonetheless, Kaunda ruled Zambia with a rare benevolence in an era of dictatorships and systematic abuse of human rights. His Christian faith, together with socialist values, was at the heart of his doctrine of “Zambian humanism”.

At home, his policies were little short of disastrous economically. Zambia’s all-important copper mines were nationalised shortly before a fall in the commodity’s price, while industries were taken over by an administration short of managers — the country had only a dozen university graduates at independence in 1964 — and newly created state-owned farms proved a failure.

Abroad, his influence never quite matched his rhetoric. He denounced white rule but was inhibited by landlocked Zambia’s dependence on trade through neighbouring Rhodesia and apartheid South Africa. Closure of the border with Rhodesia left his country dependent on a road to the Tanzanian port of Dar es Salaam for its fuel imports. A Chinese-built rail link opened in 1975, but the line never met its potential.

Born at Lubwa Mission on April 28 1924 in what was then Northern Rhodesia, Kenneth David Kaunda was the eighth child of teacher parents. After secondary school he too became a teacher, but in 1949 he gave up teaching to enter politics. By 1953 he was secretary-general of the country’s African National Congress party. Impatient and ambitious, he formed his own party in 1958, which was banned a year later.

In 1960 he took over the leadership of the United National Independence party. It swept to victory in the independence election of 1964, ending Zambia’s legal status as a British protectorate. Almost immediately, Kaunda was confronted by the white Rhodesian rebels’ unilateral declaration of independence on November 11 1965.

For the next 15 years his political life was dominated by the Rhodesian bush war, which spilled over into Zambia. He provided a base not only for Joshua Nkomo’s Zimbabwe African People’s Union but South Africa’s own African National Congress, Namibia’s South West Africa People’s Organisation, the FNLA of Angola and Frelimo from Mozambique.

His frequent tearful warnings of regional cataclysm, invariably delivered while holding a freshly ironed white handkerchief, were heartfelt but ineffectual.

Historical and geographical realities left him with a weak hand.

His decision to keep the border with Rhodesia closed hurt Zambia far more than it did his neighbour, and its eventual reopening in 1973 was a humiliating climbdown. A meeting with John Vorster, prime minister of apartheid South Africa in 1975, achieved little, while his secret talks with Ian Smith, Rhodesia’s white minority leader, served only to sour relations with Nkomo’s rival, Robert Mugabe, who was to win the elections for an independent Zimbabwe in 1980.

Pro-independence events had also left Kaunda at a serious disadvantage. The huge Kariba hydroelectric dam was built on the Zambezi river that formed the boundary with Rhodesia. Its generator was on the south bank, leaving the latter in control of power supplies to Zambia’s copper mines.

Perhaps his finest hour came when he hosted the 1979 Commonwealth conference that helped pave the way to Rhodesia’s transition to an independent Zimbabwe. The highlight was a beaming Kaunda leading Margaret Thatcher around the dance floor.

Trade union-led pressure for an end to the country’s one-party system eventually became irresistible, and in 1991 he conceded to demands for the multi-party poll that led to his ousting.

One of his last public appearances was at the funeral of Nelson Mandela, where he attempted to get the crowd of mourners to join him in a rendition of “Tiyende Pamodzi” (let us pull together), a rousing Unip anthem sung at Unip rallies.

The response was an uncomprehending silence. Kaunda had become disconnected from the Africa that he, Mandela and others had worked to shape.

This piece was originally published in the Financial Times and is republished in the Elephant with the express permission of the author.

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