“Modern technic has made it possible to diminish enormously the amount of labor necessary to produce the necessaries of life for every one. Let us take an illustration. Suppose that at a given moment a certain number of people are engaged in the manufacture of pins. They make as many pins as the world needs, working (say) eight hours a day. Someone makes an invention by which the same number of men can make twice as many pins as before. But the world does not need twice as many pins: pins are already so cheap that hardly any more will be bought at a lower price. In a sensible world everybody concerned in the manufacture of pins would take to working four hours instead of eight, and everything else would go on as before. But in the actual world this would be thought demoralizing. The men still work eight hours, there are too many pins, some employers go bankrupt, and half the men previously concerned in making pins are thrown out of work. There is, in the end, just as much leisure as on the other plan, but half the men are totally idle while half are still overworked. In this way it is insured that the unavoidable leisure shall cause misery all round instead of being a universal source of happiness. Can anything more insane be imagined?”
Bertrand Russell In Praise of Idleness
In economics, we are concerned primarily with three things, productivity, efficiency and welfare. Productivity is simply output per unit of input. We measure productivity in terms of output per worker. Economic efficiency is a question of optimality, that is, whether the resources have been put to the best possible use. Economics is in fact known as the study of resource allocation. Welfare is a question of whether the way production and distribution are organized is good for society. We can summarize the three questions: are we good at it, are we doing it right, and what good does it do. In short, it boils down to purpose. What is it all in aid of? This is Russell’s beef with the industrious society. To what end?
In economics, we are concerned primarily with three things, productivity, efficiency and welfare.
Ms Agronomy and Mr. Capital are two young farmers. Both have inherited fifty acres of land on which their parents practice traditional farming, growing maize, beans, yams and livestock. Mr. Capital is an ambitious guy. He studied finance. He wants to modernize and mechanize. Business plan, bank loan, buys tractors, harrows and ploughs and puts the whole 50 acres under maize. He is able to double his yield to 20 bags an acre. Next year he leases another 50 acres. Soon he is farming 500 acres. He has a fleet of tractors, sprayers, irrigation system, a combine harvester grain driers, silo—the works. He is producing 30 bags per acre.
Ms Agronomy went to agricultural college. She has small plots set aside on her farm where she experiments with different agronomic techniques such as zero-till farming, crop rotation, inter-cropping, organic farming, mulching and so on. She is still farming her fifty acres. For ease of analysis we translate all her different products into “maize equivalent.” Her production also works out to the equivalent of 30 bags of maize per acre.
Ms Agronomy and Mr. Capital’s economic accounts are summarized in the table below. Although both obtain the same yield, 30 bags per acre, Mr. Capital’s operation is evidently much more productive. Its total output translates to 750 bags per worker, two and a half times more than Ms Agronomy’s 300 bags per worker. It is not difficult to see how this difference has come about. Mr. Capital’s workers have more tools to work with, Sh. 3 million per worker against Ms Agronomy’s Sh. 600,000 per worker—five times as much. They are also working more land, 25 acres worker compared to 10 acres per worker in Ms Agronomy’s operation, obviously because they are mechanized.
But capital is not free. In economics we think of the cost of capital in terms of depreciation, wear and tear if you like, which is the rate of its consumption. Because Mr. Capital has all manner of equipment that need spare parts and replacement that Ms Agronomy does not have, his consumption of capital will be higher. Let us put it at 20 percent and Ms Agronomy’s at 15 percent. This translates to a capital costs of KSh. 600,000 and Sh. 90,000 per worker respectively.
To complete the accounts, we need cost of land and other inputs (fertilizers, diesel, electricity etc) which we call intermediate inputs in economic accounting jargon. The land rent is assumed at 500 per acre, Ms Agronomy has 10 acres per worker and Mr. Capital has 25, which works out to Sh. 6,000 and 24,000 per worker respectively. For intermediate inputs Mr. Capital uses more inputs including diesel, electricity fertilizer pesticides and so on. We assume that his input costs work out to Sh.80 per bag and Ms Agronomy’s are half as much, which adds up to Sh. 37,500 and Sh.6,000 per worker respectively. The price of maize is Sh. 1000 a bag.
What more do they tell us?
Although Mr. Capital’s operation has higher output per worker, Miss Agronomy’s operation has a labour surplus of Sh.196,500 against Mr. Capital’s Sh. 88,500 per worker, that is Sh.108,500 more. The labour surplus is what is available for consumption. If Miss Agronomy were to farm Mr. Capital’s land, she would create 50 jobs, two and half times more than Mr. Capital, and generate afford the society Sh. 5.4 million more consumption. With the same financing her operation would employ five times more workers (100 compared to 20) and six times the labour surplus (Sh.10.8 million compared to Sh.1.77 million) OF Mr. Capital’s operation, but it would require twice as much land—and that would be a problem wouldn’t it. As this columnist has remonstrated for the better part of three decades, if society entrusts landlords with the allocation of its resources, it ought not be befuddled that they seek to maximize rents
Mr. Capital’s workers produce Sh. 450,000 more, but the capital stock consumes more than the additional output. In economics we say that Mr. Capital’s operation has over-accumulated capital or if you want to be esoteric, it is “dynamically inefficient.” The idea that economy can over-accumulate capital runs counter to conventional wisdom, which maintains that consumption is bad, and investment is good. A particularly irksome variant of this conventional wisdom maintains that the more government spends on “development” by which we mean brick and mortar stuff, and the less is spends on recurrent, especially the wage bill, the better.
Suppose an economy starts out with a GDP per capita of $1000 and no physical capital stock. You can think of this as a pastoralist economy where the GDP is simply the value of each pastoralist’s annual off-take— for example, that each family sells four steers per person at $250 each. GDP is also equal to consumption.
Now, this economy decides to develop by “adding value” —feedlots, abattoirs, meat processing plants the works. It also needs infrastructure— electricity for the cold rooms, water etc. To finance this, it needs to save and invest. The table shows how the economy would evolve under four different investment rates 10, 20, 30 and 40 percent, and the associated economic growth rate, output (GDP per capita), the capital stock (obtained by depreciating investment at 20 percent per year), and consumption per person. At a 10 percent investment rate, GDP per person grows by one percent per year.
Ten years on, the GDP is just about 10 percent higher – the economy has accumulated $460 of capital stock per person – but people are still consuming $6 less than before development started. The elderly who die during this period would have been better off without development. They will have to be satisfied with bequeathing their children a better future—hopefully. At an investment rate of 20 percent, the economy would be breaking even after ten years, with consumption $75 higher than in year zero. Thirty percent investment rate consumption rises by another $12. But at 40 percent investment, the per capita consumption in year ten is $62 less than at an investment rate of 30 percent. What’s driving this?
[An] economy decides to develop by “adding value”…At a 10 percent investment rate, GDP per person grows by one percent per year. Ten years on, the GDP is just about 10 percent higher…but people are still consuming $6 less than before development started. But at 40 percent investment, the per capita consumption in year ten is $62 less than at an investment rate of 30 percent. The elderly who die during this period would have been better off without development…What’s driving this?
Mathematically, it is the relationship between the investment rate and the growth rate. A 10 percent investment rate increases growth by 1 percent. From 10 to 20 percent it increases by two percentage points. The increase declines to 1.5 percentage points between 20 percent and 30 percent, and to one percentage point between 30 and 40 percent investment rate. This is not a sleight of hand. It reflects two things. First the returns to capital decreases with the amount of capital—the law of diminishing returns. Secondly the more capital an economy accumulates the more resources are consumed by maintaining and replacing it. In the 40 percent investment scenario the replacement cost of capital amounts to a good 30 percent of GDP— three quarters of the 40 percent investment rate is simply maintaining the level of capital stock.
This economy has violated the Golden Rule saving rate. The Golden Rule saving rate is the rate of capital accumulation required to maintain a stable rate of consumption growth. It is called the golden rule because it requires each generation to do what it would have other generations do. Save too little, the capital stock declines and the next generation’s consumption will fall. Saving too much deprives the current generation only to burden future ones with maintaining a bigger capital stock than they need. The Golden Rule saving rate for this economy is somewhere between 30 and 40 percent. The economy ought to shed some capital. The question is, what will it shut down? No capitalist will volunteer to close down their plant for the good of the country. Since none will, recessions come every so often and sorts them out.
It should also be evident that capital on its own cannot deliver the kind of growth in prosperity that we observe in reality. I gather that my smartphone has millions of times more computing power than the Apollo Guidance Computer (AGC) aboard the spacecraft that took Man to the moon. The AGC was the first computer to use integrated circuits (ICs), the now ubiquitous microchips. It cost $150,000 (about US$ 1.1 million in today’s value). My smartphone cost $1000 dollars and you can get a good one for a quarter of that. One very big difference is that the AGC was crash-proof. That aside, fifty years down the road, the cost of AGC will buy you 5,000 infinitely more powerful handheld computers to do the most frivolous things.
Capital on its own cannot deliver the kind of growth in prosperity that we observe in reality.
It is science, not capital that enables us to waste computing power on selfies and fake news. The reason we can afford to consume knowledge, frivolously or otherwise, is first, not subject to diminishing returns. Secondly, knowledge can be used by many people over and over again at no additional cost.
Suppose Ms Agronomy were to acquire another 50 acres of land. She would with very little capital, simply replicate her knowhow and be producing at peak output in no time. And of course, Ms Agronomy would be continuing with her experiments. So by this time, she would be up to 35 bags per acre, or 40. In fact, every one of Ms Agronomy’s workers could go off and replicate her methods at no extra cost. Mr. Capital’s workers cannot walk into the bank and walk out with a tractor. Mr. Capital would be back to the bankers who would in turn deploy more of society’s savings to equip his operation. More of societies savings would have to be mobilized. New equipment would need to be manufactured. Producing more equipment needs more workers. So instead of producing food, Ms Agronomy’s workers will now be hired to produce the equipment to produce food.
It is science, not capital that enables us to waste computing power on selfies and fake news. The reason we can afford to consume knowledge, frivolously or otherwise, is first, not subject to diminishing returns.
Why then is society, even those countries in which more capital could not possibly appreciably improve standards of living —think Japan— still obsessed with hard work, thrift and accumulation of capital?
Why are Africa’s leaders forever trooping to the West and East, fawning, groveling and whoring for capital?
Bertrand Russell: ‘From the beginning of civilization until the industrial revolution a man could, as a rule, produce by hard work little more than was required for the subsistence of himself and his family, although his wife worked at least as hard and his children added their labour as soon as they were old enough to do so. The small surplus above bare necessaries was not left to those who produced it, but was appropriated by priests and warriors. In times of famine there was no surplus; the warriors and priests, however, still secured as much as at other times, with the result that many of the workers died of hunger. At first sheer force compelled them to produce and part with the surplus. Gradually, however, it was found possible to induce many of them to accept an ethic according to which it was their duty to work hard, although part of their work went to support others in idleness. [But] a system which lasted so long and ended so recently has naturally left a profound impression upon men’s thoughts and opinions. Much that we take for granted about the desirability of work is derived from this system and, being pre-industrial, is not adapted to the modern world.
Says Bertrand Russell: “Gradually, however, it was found possible to induce many of them to accept an ethic according to which it was their duty to work hard, although part of their work went to support others in idleness.”
Warriors, priests, chiefs, bureaucrats. And bankers.
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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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