All protocols observed. Distinguished ladies and gentlemen, you are gathered here today to discuss corruption. I can say without fear of contradiction that this a subject that this gathering is imminently qualified to discuss. In fact, it is conceivable that a gathering of people as knowledgeable as you are in matters of corruption is unprecedented in world history. The scions of crony capitalism are here. The lords of the land grabbing establishment are here. The dons of the tenderpreneur mafia are here. The money laundering fraternity— the lawyers, the accountants, the bankers, property moguls—you are all here.
My good friend and anti-corruption guru John Githongo has opined that we have, over the last two decades, assembled one of the most elaborate legal and institutional anti-corruption infrastructures in the world. It has made no difference at all. Corruption has continued to flourish. Nations renowned for honest government, such as the Scandinavian countries, are not distinguished by anti-corruption infrastructure. The normal accountability institutions —auditors, parliament, police and the courts—are sufficient. To borrow from computing, corruption is quite evidently not a hardware problem. It is the software that is corrupted.
The Oxford dictionary has four definitions of corruption, namely dishonest or fraudulent conduct by those in power; the process or effect of making someone or something morally depraved; the process by which a word or expression is changed from its original state to one regarded as erroneous or debased, and; the process by which a computer database becomes debased by alteration or the introduction of errors.
I suspect that in this convention your deliberations will be largely if not exclusively concerned with the first of these, namely, dishonest and fraudulent conduct, steering clear of election fraud, nepotism, debasement of the national honours system, corruption of harambee and much more. I need not dwell on the same since, as I have already observed, you are knowledgeable and experienced in those matters.
In this address, I will speak to the broader conception, namely to the process of alteration or debasement, or to borrow from the computer analogy, the corruption of software. I will do so by expounding on a theory of African politics due to Nigerian scholar Peter Ekeh known as the theory of the “two publics”. I will be quoting extensively from his paper Colonialism and the Two Publics in Africa: A theoretical statement published in the 1975 issue of the journal Comparative Studies in Society and History.
Ekeh begins with the proposition that in western societies, the public and private spheres are governed by the same moral values and ethical norms: “what is considered morally wrong in the private realm is also considered morally wrong in the public realm [and] what is considered morally right in the private realm is also considered morally right in the public realm.”
He proceeds to postulate that in post-colonial Africa there are two public spheres. There is the conventional public sphere which he calls the “civic or state” sphere, and another which he calls the “primordial” sphere. He then postulates that the private and the primordial public spheres share a morality that does not extend to the state public sphere:
“When one moves across Western society to Africa, at least, one sees that the total extension of the Western conception of politics in terms of a monolithic public realm morally bound to the private realm can only be made at conceptual and theoretical peril. There is a private realm in Africa. But this private realm is differentially associated with the public realm in terms of morality. In fact there are two public realms in post-colonial Africa, with different types of moral linkages to the private realm. At one level is the public realm in which primordial groupings, ties, and sentiments influence and determine the individual’s public behavior. I shall call this the primordial public because it is closely identified with primordial groupings, sentiments, and activities, which nevertheless impinge on the public interest. The primordial public is moral and operates on the same moral imperatives as the private realm. On the other hand, there is a public realm which is historically associated with the colonial administration and which has become identified with popular politics in post-colonial Africa. It is based on civil structures: the military, the civil service, the police, etc. Its chief characteristic is that it has no moral linkages with the private realm. I shall call this the civic public. The civic public in Africa is amoral and lacks the generalized moral imperatives operative in the private realm and in the primordial public.”
In western societies, the public and private spheres are governed by the same moral values and ethical norms: “what is considered morally wrong in the private realm is also considered morally wrong in the public realm [and] what is considered morally right in the private realm is also considered morally right in the public realm.”
Allow me to illustrate. Every day Kenyans gather to organize weddings and funerals. They contribute money. They form committees, and appoint treasurers to keep the money. This money is seldom if ever stolen. We do not hear that a funeral or wedding did not take place because the treasurer took off with the money. Once the mission is accomplished a final meeting is convened to “break the committee.” The treasurer presents his or her report. If there is a surplus, it is donated to the bereaved or the couple as the case may be. If there are debts, the committee deliberates on how to settle them. There are no laws governing these undertakings. Increasingly, in urban settings, the activities are multiethnic thus we cannot say they are governed by tribal law. This is the primordial public—scrupulously honest and conscientious. This in the country with arguably the most corrupt states in the world. Same people.
You see, the state realm was a colonial imposition. It divided Africans broadly into those who resisted, and those who embraced it. Moral values do not apply in the sphere of oppression. The same applies to those who embraced it. Theirs was opportunism. They were motivated primarily by material gain. Both united in subverting it but for different reasons, as Ekeh explains:
“The African who evaded his tax was a hero; the African labourer who beat up his whjte employer was given extensive coverage in newspapers. In general, the African bourgeois class, in and out of politics, encouraged the common man to shirk his duties to the government or else to define them as burdens; in the same breath he was encouraged to demand his rights. Such strategy, one must repeat, was a necessary sabotage against alien personnel whom the African bourgeois class wanted to replace.”
The state realm was a colonial imposition. It divided Africans broadly into those who resisted, and those who embraced it. Moral values do not apply in the sphere of oppression. The same applies to those who embraced it. Theirs was opportunism. They were motivated primarily by material gain. Both united in subverting it but for different reasons…
Now that the African bourgeoisie has made an appearance, it is opportune to elaborate on it. A bourgeoisie is a capitalist class. In Europe, the bourgeoisie is the social class which emerged both as cause and consequence of the industrial revolution and capitalist development.
“In the course of colonization a new bourgeois class emerged in Africa composed of Africans who acquired Western education in the hands of the colonizers, and their missionary collaborators, and who accordingly were the most exposed to European colonial ideologies of all groups of Africans. Although native to Africa, the African bourgeois class depends on colonialism for its legitimacy. It accepts the principles implicit in colonialism but it rejects the foreign personnel that ruled Africa. It claims to be competent enough to rule, but it has no traditional legitimacy. In order to replace the colonizers and rule its own people it has invented a number of interest-begotten theories to justify that rule. I shall call the ideologies advanced by this new emergent bourgeois class in Africa the African bourgeois ideologies of legitimation.”
The bourgeoisie is associated with wealth creation and materialism.
The African bourgeoisie’s legitimising ideology is, I think, encapsulated by that ubiquitous political mantra “maendeleo.” Maendeleo is not development. Literary, maendeleo is to get rid of backwardness, to become modern. To drink busaa and chang’aa is not maendeleo. Beer and whisky is maendeleo. The maendeleo ideology is what Chinua Achebe characterizes as a “cargo cult mentality,” a “tendency among the ruling elite to live in a world of make-believe and unrealistic expectations”.
Ekeh has introduced another important concept that needs a remark or two, and this is the idea of legitimation. Legitimation is the process of making something morally acceptable to society. Legitimation is also about assuaging one’s conscience that there is a just cause behind unjust things. The legitimation of colonialism entailed presenting it as a civilizing mission, casting African ways as barbaric and backward, and Christianity and westernization as progress, bringing light to the heart of darkness. The African bourgeoisie’s predicament can be put as follows. It lacked the leadership credentials in the primordial public sphere—that belonged to the traditional rulers who colonialism had emasculated. Its power and comfort zone was in the state public—the amoral domain of oppression. How to square this circle?:
“Anti-colonialism did not in fact mean opposition to the perceived ideals and principles of Western institutions. On the contrary, a great deal of anti-colonialism was predicated on the manifest acceptance of these ideals and principles, accompanied by the insistence that conformity with them indicated a level of achievement that ought to earn the new educated Africans the right to the leadership of their country. Ultimately, the source of legitimacy for the new African leadership has become alien. Anti-colonialism was against alien colonial personnel but glaringly pro foreign ideals and principles.”
The African bourgeoisie’s legitimising ideology is, I think, encapsulated by that ubiquitous political mantra “maendeleo.” Maendeleo is not development. Literary, maendeleo is to get rid of backwardness, to become modern. To drink busaa and chang’aa is not maendeleo. Beer and whisky is maendeleo. The maendeleo ideology is what Chinua Achebe characterizes as a “cargo cult mentality,” a “tendency among the ruling elite to live in a world of make-believe and unrealistic expectations.”
Maendeleo ideology was and in many ways remains a fig leaf to cover the political nakedness of the African bourgeoisie, its inability to provide leadership on foundational questions of nation-building, among them how to transform the amoral state public sphere into an authentic values-based governance realm. To ask these questions was, still is, to become an enemy of maendeleo. To persist was, still is, to invite repercussions. There is perhaps no better specimen of the moral and intellectual crisis of the post-colonial African bourgeoisie than the ideological, political and economic incoherence of the (in)famous Sessional Paper No.10 of 1965 (African Socialism and its Application to Planning in Kenya).
Let us now consider the dialectics of the two publics. Dialectics simply means logic, or the process of reasoned inquiry. This will lead us directly into the subject of corruption.
On Friday you are hobnobbing with diplomats showing off your western sophistication, next day, you are being installed as a tribal elder adorned in monkey skins and porcupine quills Come Sunday, you are a suited picture of Christian piety buying indulgencies with money stolen from poor people. You are restless, troubled souls. This is what Ekeh means by psychic turbulence.
“Most educated Africans are citizens of two publics in the same society. The dialectical tensions and confrontations between these two publics constitute the uniqueness of modern African politics. A good citizen of the primordial public gives out and asks for nothing in return; a lucky citizen of the civic public gains from the civic public but enjoys escaping giving anything in return whenever he can. But such a lucky man would not be a good man were he to channel all his lucky gains to his private purse. He will only continue to be a good man if he channels part of the largesse from the civic public to the primordial public. That is the logic of the dialectics. The unwritten law of the dialectics is that it is legitimate to rob the civic public in order to strengthen the primordial public. (my emphasis)
“The native sector has become a primordial reservoir of moral obligations, a public entity which one works to preserve and benefit. The Westernized sector has become an amoral civic public from which one seeks to gain, if possible, in order to benefit the moral primordial public. Although the African gives materially as part of his duties to the primordial public, what he gains back is not material. He gains back intangible, immaterial benefits in the form of identity or psychological security. The pressure of modern life takes its toll in intangible ways. Behind the serenity and elegance of deportment that come with education and high office lie waves of psychic turbulence—not least of which are widespread and growing beliefs in supernatural magical powers. The primordial public is fed from this turbulence.”
I would like to believe that you recognize this description. Let me illustrate. On Friday you are hobnobbing with diplomats showing off your western sophistication, next day, you are being installed as a tribal elder adorned in monkey skins and porcupine quills Come Sunday, you are a suited picture of Christian piety buying indulgencies with money stolen from poor people. You are restless, troubled souls. This is what Ekeh means by psychic turbulence.
Corruption is a sine qua non of the post-colonial African State. You, ladies and gentlemen, are its handmaidens. Its unwritten law is that it is legitimate to rob the civic public in order to strengthen the primordial public. Until this law is repealed, so it will remain.
This then is the pathology of corruption. Corruption is a sine qua non of the post-colonial African State. You, ladies and gentlemen, are its handmaidens. Its unwritten law is that it is legitimate to rob the civic public in order to strengthen the primordial public. Until this law is repealed, so it will remain.
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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.
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.
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.
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.
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 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).
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.
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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