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Kenya and Zimbabwe: The Mirrored Histories of Settler Occupation and Autocracy That Produced Electoral Criminality

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Consider Mama Sylvia Maphosa, 56, avoiding trouble the day after Zimbabwe’s election, shot in the back by a sniper – one more victim of a culture of electoral violence stretching from Harare to Nairobi, where Baby Pendo’s killers are still abroad. But the remarkable inability to manage democratic elections in Zimbabwe and Kenya, both former settler colonies with turbulent legacies of violence, land dispossession and its vexed post-colonial aftermaths, are only partly explained by their histories. For that, cue the role of Big Man politics and Big Power interests. By MIRIAM ABRAHAM

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Kenya and Zimbabwe: The Mirrored Histories of Settler Occupation and Autocracy That Produced Electoral Criminality
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Mama Sylvia Maphosa, was on her way home on 1 August, having been released early from work by her employer of over 15 years, the Zimbabwe National Water Authority in Harare. Although this was the first presidential election without Robert Mugabe on the ballot since 1980, the 56-year-old mother of two did not care much for them or for politics in general. She just wanted to get home to her husband Robert Maphosa, who she had discouraged from his routine of picking her up from work for fear that he may be caught up in protests in the city.

Little did she know that it was her own life that was at risk. The bullet that lodged in her back was administered with the accuracy of a sniper targeting a heavily armed enemy. Yet, this was a woman fleeing the violence meted by the State in its alleged bid to quell opposition protests following the announcement by the Zimbabwe Electoral Commission (ZEC) that President Emmerson Mnangagwa and the ruling ZANU-PF party had won the July 30 election, with 50.8 percent of the vote and the Movement for Democratic Change candidate Nelson Chamisa receiving 44.3 percent.

The murder of Mama Sylvia Maphosa and those of five other Zimbabweans in the immediate aftermath of a disputed election are no different than that of Baby Samantha Pendo, Stephanie Moraa Nyarangi, Jeremiah Maranga, Thomas Odhiambo Okul, Bernard Okoth Odoyo, Raphael Ayieko, Victor Okoth Obondo, Privel Ochieng Ameso, Shady Omondi Juma to cite the most prominent victims. They, along with scores of others were murdered a year ago in Kenya’s electoral violence. The histories and trajectories of Kenya and Zimbabwe often mirror each other. As I often tease my friends from Zimbabwe, since elections in Kenya are often a year after theirs, we provide a good playbook in mediocrity for them to perfect.

The murder of Mama Sylvia Maphosa and those of five other Zimbabweans in the immediate aftermath of a disputed election are no different than that of Baby Samantha Pendo, Stephanie Moraa Nyarangi, Jeremiah Maranga, Thomas Odhiambo Okul, Bernard Okoth Odoyo, Raphael Ayieko, Victor Okoth Obondo, Privel Ochieng Ameso, Shady Omondi Juma to cite the most prominent victims. They, along with scores of others were murdered a year ago in Kenya’s electoral violence.

Kenya and Zimbabwe share a spectacular inability to conduct uncontested presidential elections. We could of course blame our common colonial masters, and this may not be far-fetched. Both countries became colonies of the British Empire after the infamous Berlin conference on the partition of Africa with colonial rule taking root in 1890 in Zimbabwe and 1895 in Kenya. The methods colonialists deployed to suppress the local communities were marked with violence, coercion, bribery and dispossession. Their priority was to take over the fertile highlands in both countries, which they dubbed the ‘white highlands’ in Kenya, and minerals especially in Zimbabwe. The divide and rule tactics used between the Shona and the Ndebele were not any different from those used in Kenya to divide its numerous communities. The enduring aftermath in both countries, however, has been the ethnicisation of politics and the land question, which both countries have managed differently in the post-colonial era.

The colonial administration in both countries instituted racial stratification through the expropriation and allocation of land to settlers. In Kenya, the 1902 Crown Lands Ordinance declared the British Crown responsible for the administration of all land in Kenya, displacing millions who were then placed in ‘reserves’ as forced labour in the farms. The still-to-be implemented Ndung’u Commission report comprehensively details this history including the post-colonial political patronage using public land. By independence in 1963 in Kenya, over eight million acres of land, representing nearly 75 per cent of Kenya’s arable land had been transferred to the settlers.

In Zimbabwe, informal alienation of land began with the arrival of the European settlers who began to claim large tracts of land. Exactly the same year that the Land Ordinance was declared in Kenya in 1902, the colonialists in Zimbabwe established ‘indigenous reserves’. In their edited book, Becoming Zimbabwe, Brian Raftopoulos and Alois Mlambo, grapple with the colonial land history and track the various political and socio-economic developments until 2009. They show how millions of Zimbabweans were rendered landless with a few white commercial farmers controlling approximately 18 million hectares (50 percent) of agricultural land.

However, unlike Kenya, post-independent Zimbabwe’s approach to land redistribution has been remarkably different. As renowned author and academic, Mahmood Mamdani, notes Zimbabwe’s fast track land reform of 2000-2003 saw “ the greatest transfer of property in southern Africa since colonization. Unlike in Kenya where former colonial families and a few political heavyweights own the majority of the fertile land, in Zimbabwe 80 percent of land owned by white farmers was expropriated and redistributed, albeit in some cases to political operatives. Nonetheless, this resulted in more than a hundred thousand smallholder owners. Despite the unacceptable violence used during the land distribution, the harsh economic sanctions from the West, the contracted economic growth, hyperinflation, unemployment, among other ills, the fast track land reform has not turned out to be as disastrous as it was prophesied.

Parallels between Zimbabwe and Kenya go beyond the shared colonial history and the attendant land issues. The political parties that ushered in both countries to independence shared a history and almost the same name – Kenya African National Union (KANU) and the Zimbabwe African National Union (ZANU). The tactics that President Robert Mugabe used to ensure the dominance of ZANU are not any different from those used by President Jomo Kenyatta and his successor President Daniel Toroitich arap Moi. The 1980s and 90s saw the most repressive period in the history of both countries, economic hardships partly arising from corruption and the structural adjustment programmes imposed by the international financial institutions. There was remarkable brain-drain from both countries during this period, with an educated professional elite heading mostly to South Africa, Europe and the United States.

There are striking similarities when one considers events surrounding the 2007 elections in Kenya and that of Zimbabwe in 2008. Raila Odinga’s Orange Democratic Movement (ODM) and Morgan Tsvangirai’s Movement for Democratic Change (MDC-T) gained parliamentary majorities against President Mwai Kibaki and President Robert Mugabe’s parties, respectively. Early results from polling stations pointed to the incumbents losing the presidency to the opposition. It was therefore not surprising for protests and violence to erupt in both countries once they stubbornly refused to hand over power. International mediation initiatives led to power-sharing arrangements, creating the post of prime minister under the Grand Coalition government in Kenya and the Global Political Agreement (GPA) in Zimbabwe. The power-sharing arrangements were fraught with wrangling, with ODM urging its leadership to withdraw from the power-sharing government in early 2009 due to deep perceptions of marginalization, and Tsvangirai’s MDC-T ‘disengaging’ from government. However, despite the dysfunctionality and machinations, the power-sharing arrangement in both countries remained intact until the 2013 General Elections.

There are striking similarities when one considers events surrounding the 2007 elections in Kenya and that of Zimbabwe in 2008. Raila Odinga’s Orange Democratic Movement (ODM) and Morgan Tsvangirai’s Movement for Democratic Change (MDC-T) gained parliamentary majorities…Early results from polling stations pointed to the incumbents losing the presidency to the opposition. It was therefore not surprising for protests and violence to erupt in both countries once the incumbents refused to hand over power. International mediation initiatives led to power-sharing arrangements, creating the post of prime minister under the Grand Coalition government in Kenya and the Global Political Agreement (GPA) in Zimbabwe.

Despite the reforms that took place in both countries following the signing of the internationally-mediated agreements in 2008, Zimbabwe and Kenya did not seem to have changed much on the electoral front. The same scenario of contested elections was repeated in 2013 albeit with ingenuity. This time, parliamentary seats were also targeted to maintain the popularity or “tyranny of numbers” narrative. They had learned from the fiasco of 2007/8 where the opposition had more parliamentary seats than the ruling party.

There is ample evidence that the stunning margin of 61.09% victory for President Mugabe against Morgan Tsvangirai’s 33.94% was anything but a free, fair and credible election. Two Commissioners of ZEC resigned with one saying, “I do not wish to enumerate the many reasons for my resignation, but they all have to do with the manner the Zimbabwe 2013 Harmonized Elections were proclaimed and conducted”. Numerous other anomalies were noted including the existence of 65 non-gazetted polling stations, astronomically high numbers of ‘assisted voters’ despite the fact that Zimbabwe ranks first in Africa with its 90 percent literacy rate. Thousands of persons were turned away from voting in opposition strongholds, among other irregularities.

Meanwhile in Kenya, the General Election in 2013 suffered the same fate. Although conducted in a peaceful manner, there were complaints raised regarding the register of voters, intimidation of voters, technological failure among others. According to Kenyan Election Observation Group (ELOG), the process was marked by “botched procurement process that was dogged by allegations of impropriety, delays in timelines for voter registration, and widespread failure of biometric verification kits on Election Day. Indeed, the failure of the biometric voter registration system ranked amongst the most serious threats to the integrity of the 2013 elections, and contributed to public perceptions of incompetence, corruption and electoral fraud”.

In both cases, the 2013 presidential election was subjected to legal petitions with the Courts upholding the results as announced by the respective election management bodies. Curiously, the response in both countries was again stunningly similar. Rt. Hon. Raila Odinga accepted the ruling of the Supreme Court and “moved on”. Rt. Hon. Morgan Tsvangirai had withdrawn his case from the Constitutional Court shortly before its verdict was rendered noting that the Court was biased. He nevertheless did not appeal to his supporters to protest. These unsuccessful legal bids paved the way for Robert Mugabe to be sworn in for his 33rd year in office and for Uhuru Kenyatta to begin his first term as president of Kenya.

Given the trajectory of electoral processes in Kenya and Zimbabwe as noted above, it is unsurprising to see the parallels between the electoral process in Kenya in 2017 and that of Zimbabwe this year. Not to be outdone, Zimbabwe’s security apparatus has mounted a violent crackdown against the opposition, just as their counterparts in Kenya did in the aftermath of the 2017 election. In its conduct, ZEC has not acted any differently from the IEBC, making one wonder if they are cut from the same cloth. It is unsurprising that the opposition leader, Nelson Chamisa has done exactly what Rt. Hon. Raila Odinga did last year when faced with elections that he considered altered in favor of the incumbent. The MDC-T has filed a petition in the Constitutional Court.

In both cases, the 2013 presidential election was subjected to legal petitions with the Courts upholding the results as announced by the respective election management bodies. Curiously, the response in both countries was again stunningly similar. Rt. Hon. Raila Odinga accepted the ruling of the Supreme Court and “moved on”. Rt. Hon. Morgan Tsvangirai had withdrawn his case from the Constitutional Court shortly before its verdict was rendered noting that the Court was biased…These unsuccessful legal bids paved the way for Robert Mugabe to be sworn in for his 33rd year in office and for Uhuru Kenyatta to begin his first term as president of Kenya.

It is barely conceivable that Zimbabwe’s Constitutional Court will take the bold step that Kenya’s Supreme Court took last year of annulling the presidential vote, but the end result of the political game appears to be headed down the same path. The region and the international community, as it did in Kenya, has decided to cast it lot with the ZANU-PF. They have concluded that stability trumps electoral justice. Emerson Mnangagwa’s human rights record – he is commonly referred to as The Crocodile, and for good reason – is an open book, but he has recalibrated his approach to the West claiming that his country is “open for business” . The West is eager too. The international financial institutions are itching to return to Zimbabwe with the World Bank already having conducted a scoping mission to Harare in February, without waiting for the electoral process to play out.

It is barely conceivable that Zimbabwe’s Constitutional Court will take the bold step that Kenya’s Supreme Court took last year of annulling the presidential vote… The region and the international community, as it did in Kenya, has decided to cast it lot with the ZANU-PF. They have concluded that stability trumps electoral justice.

As was the case with Raila Odinga, it is expected that Nelson Chamisa will receive pressure from the US, the UK, the UN and neighboring countries and receive reminders that the unity and peace of the country would serve the country better than a long season of dispute and protest. He will be told that that is the way statesmen act: in the interest of the nation. He will be reminded that he is young and would not want to be sanctioned. He will be reminded of his legacy and how much political capital he still has ahead of him. Promises will be made to him and his party.

As was the case with Raila Odinga, it is expected that Nelson Chamisa will receive pressure from the US, the UK, the UN and neighboring countries and receive reminders that the unity and peace of the country would serve the country better than a long season of dispute and protest. He will be told that that is the way statesmen act: in the interest of the nation. He will be reminded that he is young and would not want to be sanctioned. He will be reminded of his legacy and how much political capital he still has ahead of him. Promises will be made to him and his party.

And at the appropriate time, Nelson Chamisa will have his handshake with the Crocodile, unless the powerful vice-president and minister of defence, Constantino Chiwenga, torpedoes it. We will then forget and move on until 2022/23. Sadly, the memories of 2018 will remain in the hearts of Sylvia Maphosa’s family and of those whose loved ones have been sacrificed in the pursuit of power.

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

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

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

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

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

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

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

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

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

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

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

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