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The Will of the People: Further Reflections on the Post 2017 Election Evaluation Report and a New Electoral Management Culture

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The reason our ballot papers have security features that are equal to, if not more than, our currency is because of the trust deficit among the electoral stakeholders.

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The Will of the People: Further Reflections on the Post 2017 Election Evaluation Report and a New Electoral Management Culture
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I was privileged to share my thoughts, concerns, hopes and aspirations during the launch of the Post Election Evaluation Report on 12th of February 2018 as a guest speaker particularly because it bears great significance to the Independent Electoral and Boundaries Commission (IEBC), as an institution, and to the nation at large. In the following essay, I share my own insights on an occasion that afforded us an opportunity to reflect and review the journey the IEBC and electoral stakeholders have travelled, so far, in entrenching sound processes in our electoral operations and systems. The expectation that I believed was shared by many, was the IEBC had prepared a report that was candid and honest in its assessment, and that it addressed, comprehensively, the political, legal, administrative, financial and managerial aspects of the 2017 General Elections.

While the Launch of the Post-Election Evaluation report stands as an epilogue in the election cycle, its utility cannot be gainsaid. It is a moment to celebrate successes, acknowledge and appreciate the failures, and identify the pathways to a better future.

The event brought back to mind two instances during my tenure as Chief Justice when I addressed the previous electoral commission. I believe that the words I spoke then ring true today as they did several years back. First was at the swearing-in of IEBC commissioners on 14th November 2011. On that occasion, I spoke at length on the importance of keeping true to the oath of office that Commissioners take. I stated that failure of any election is a failure of an oath betrayed and that:

‘[T]here is no higher crime an individual, an institution, or a group of people can commit than one that subverts the sovereign will of the people, or whether through incompetence, negligence, or design make the expression of that will inarticulate’.

I hope that in the recently launched Report, the IEBC has answered that question, and done it with candour and honesty.

Second was in my Concurring Opinion in Petition 2B of 2014 (commonly referred to as Munya II) where in paragraphs 251-253 I addressed the issue of electoral management where I cautioned that ‘nothing could imperil our democracy more than an electoral agency that is contaminated by bias, infected with incompetence, and afflicted by a virulent virus of minimal public accountability.

‘[T]here is no higher crime an individual, an institution, or a group of people can commit than one that subverts the sovereign will of the people, or whether through incompetence, negligence, or design make the expression of that will inarticulate’.

Arguably, Kenya can do with one or two indolent political parties, but she cannot afford an electoral management agency that exhibits these weaknesses…the IEBC must demonstrate competence, impartiality, fairness, and a remarkably high sense of accountability to the public and the parties who are its primary customers. It must embrace high disclosure standards, and must avoid conduct such as hoarding of information and data that the public has a right to, both as a matter of course, and also as a matter of Article 35 of the Constitution. Materials that are in the possession of IEBC are not private property but rather they are public resources. The IEBC, therefore, must demonstrate an instant readiness to respond to public concerns, whenever these are raised, and to maintain a public accountability posture at all times.

I also hope that in the Evaluation Report, the IEBC has addressed these issues in a forthright and accurate manner.

Whereas these issues will sound familiar to the current IEBC commissioners, they were said long before you came into office. The fact that some of these matters still emerged in the 2017 election, speak to an enduring electoral management culture that is still far from perfect. And it underscores that fact that the country needs to pull together to create and realise an electoral infrastructure and operations that it has absolute faith and confidence in.

Elections are an important pillar of our democracy. The right to vote must not be taken lightly. The duty to protect that vote is also an important democratic imperative. There is an emerging, and a rapidly entrenching notion, that electors or voters no longer decide who their leader are – whether in party primaries or the general election itself. That leaders are decided either by party barons, manipulated electoral management agency, or by the courts. In Africa, there is a widening chasm between voting and counting – an irony of literacy where peasants (most voters) know how to peacefully cast their ballots during the day, but the educated (presiding and returning officers) and technology forget how to count on election night. There is urgency in changing this perception and/or reality by reclaiming and reaffirming public faith in electoral politics. The IEBC has an oversized role in this regard, but only if it conducts itself competently, credibly and fairly.

But IEBC cannot achieve this on its own. It needs an enlightened political leadership and engaged citizenry. There is no doubt that for a truly independent electoral commission to emerge, the political class needs to drop its practice of capturing and enslaving the commission – completely rendering it incapable of discharging its mandate. The political class falsely sees itself an ‘owning’ every space, initiative, or decision in the country, an erroneous ‘political class as sovereign’ notion that precipitates overreach and disregards the constitutive and operational autonomy of independent institutions such as IEBC, and even the Judiciary.

Elections are an important pillar of our democracy. The right to vote must not be taken lightly. The duty to protect that vote is also an important democratic imperative

The Constitution created independent institutions precisely to cure this mischief – as a necessary bulwark against the highly predictable proclivities and mission creep tendencies of the political class. We cannot create independent institutions then deny them that independence through the bullying of the political class. When those institutions fail because of such political infiltration, we turn around and blame them – and disband them only for the silly cycle to begin afresh with another predictable inane result! Our political class must be self-respecting enough to allow independent institutions to work.

But I have also come to learn that constitutional independence does not work on its own. The leadership and membership of these institutions matter much more. IEBC must fight for its independence by rejecting patronage and partisan politics, and through its conduct, comportment and decisions, project and elevate its authority – effectively. The division that the Commission showed in the last election went a long way in sapping away public confidence. The IEBC evaluation report must acknowledge the problem of disunity in the spirit of honest and candid evaluation and make recommendations on how to deal with it in the future.

It is astonishing that the current IEBC assumed office only seven months to the general election. This was reckless and irresponsible on the part of the country. That it even managed to organize the six-tier election, is a mini-miracle. The demand on the Commission to deliver on the general elections within this short period of time must have been huge. Added to Kenya’s unique legal, political and administrative minefields that attend our elections, the pressure must be have been incalculable.

The political class slow-pedaled and mismanaged the transition from the old Commission to the present one. And even today, almost four years before the next election, the Commission is debilitated and cannibalized, and the political class is in lala landevidently unbothered waiting until the last minute to deal with the outstanding issues in the Commission. There is urgency in getting the Commission working properly and in its full capacity.

It is not my desire to dwell on the 2017 General Elections that I trust is adequately covered in the evaluation report. However, I deem it necessary to share some reflections on our electoral processes by highlighting some issues that I think we also need to address.

First, is the manner in which political parties conduct party primaries. Political party primaries have become theatres of the absurd characterized by patronage, violence, ineptitude, rigging. Whereas considerable progress has been made in developing internal party dispute resolution mechanisms these are still not effective as most disputes still find their way into the court system.

We need to remember that Political Parties are institutions that mobilize the people towards capturing political power. This obligates them to entrench democratic values and principles in their internal systems, especially party nominations. I urge all players including, Parliament, Political parties, Registrar of Political Parties and the IEBC to adopt a multisectoral collaborative approach in developing a legal, regulatory and administrative framework that will promote internal party democracy.

Second, there is need for a national conversation on the practicability of critical timelines within the electoral process. For instance, the Constitution compels the Supreme Court to make a determination on a Presidential Petition within 14 days of its filing. From experience, this limited time forces the Court to sit for long hours during proceedings; grant much shorter time for the conduct of important processes like scrutiny and submissions; and limits or even bars parties from preparing adequately for their petitions. The proposal made by the Judiciary Committee on Elections to extend the presidential election petition by another 16 days merits attention.

Third, statutory enactments and amendments by the legislative arm of Government should provide reasonable time for implementation. Undertaking piecemeal legal reforms close to the elections leads to inconsistencies and administrative challenges in the application of the law.   Furthermore, we should consider the possibility of staggering elections. The IEBC conducts polling for six elective positions concurrently. The undertaking is quite daunting and demanding in terms of logistical planning and processing of results. This is a debate that Kenyans need to have.

Fourth, we need to cure the country of the strong scorched-earth electoral culture. We shed too much blood, damage too many properties, steal too many votes, rupture too many friendships, destroy too many institutions, throw too many ethnic insults, worship too many false gods, spend too much money during our electoral contests. Elections have become corrosive and divisive in a manner that hemorrhages the country in an eminently destructive way. They have become existential contests rather than a civil contest between ideas and policy choices. This absolutist view of elections is what has led to the over judicialization of politics and militarization of politics, thereby giving courts (and security agencies) power to determine who the leaders are, and not the citizens. I believe that if the IEBC were to assert its authority and competently and fairly manage the electoral process, the social costs of elections would considerably go down. Similarly, if leaders put national interests first, then the fear of exclusion that drives this desperation would evaporate.

Fifth, the independence of the IEBC can only be guaranteed if its operations are independent of any executive, legislative or foreign control and direction. An institution can only speak of independence if its processes are not prone to manipulation from executive, parliamentary or international misadventure. It is about time we interrogated and stopped the hugely negative influence of the intelligence and security operatives in Kenya’s electoral processes, particularly since 2007. Similarly, the international community also pays an over-sized role in the electoral commission and this needs to be reduced if not eliminated completely. Therefore, to cushion the Commission from financial incapacitation, the Independent Electoral and Boundaries Commission Fund should be operationalized.

Lastly, the role of technology and technology companies in Kenya’s elections also need urgent examination. It has emerged as a contested issue and if the country is not careful, we may hand over the election of our leaders not to voters, parties or courts but to technology and data management companies.

I urge the IEBC Commission to continuously engage stakeholders and the public at large in its processes. The Constitution of Kenya has elevated public participation and inspired citizen vigilance, to the extent that unless harnessed into meaningful engagement, it can be a recipe for constant standoffs and unnecessary legal battles between the IEBC and the various stakeholders in the Electoral Process. This will not only enhance trust among stakeholders but also reduce the cost of conducting elections. The reason our ballot papers have security features that are equal to, if not more than, our currency is because of the trust deficit among the electoral stakeholders.

Lastly, the role of technology and technology companies in Kenya’s elections also need urgent examination. It has emerged as a contested issue and if the country is not careful, we may hand over the election of our leaders not to voters, parties or courts but to technology and data management companies.

I wish the IEBC a productive season as it gears up for the next election cycle that will culminate in the conduct of the 2022 General Elections.

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Dr Willy Mutunga is a public intellectual and former Chief Justice of Kenya.

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Kenneth Kaunda: The Founding President of Zambia

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

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

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

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

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

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

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

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

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

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

Historical and geographical realities left him with a weak hand.

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

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

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

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

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

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

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

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

Uhuru Kenyatta’s refusal to fulfil his constitutional duty to appoint and gazette JSC-nominated judges is a tyranny against the judiciary.

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Cherry-Picking of Judges Is a Great Affront to Judicial Independence
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The 2010 constitution placed an onerous responsibility on the judiciary. That responsibility is to check that the exercise of public power is done in a manner that is compliant with the constitution. The constitution brought everyone, including the president – in both his capacities as the head of state and head of national executive – under the law. Hence, the judiciary has the final word when called upon to determine whether anything done or said to be done by anyone in the exercise of public power is constitutional.

To ensure that judges and magistrates can perform this task, the 2010 constitution created a strong architecture to secure judicial independence. In a nutshell, judicial independence simply means creating the necessary guardrails to ensure that judges and magistrates are and feel fully protected to make the right decision without fear of reprisal and that the judiciary has the facilities it needs to create an enabling environment to facilitate judges and magistrates’ abilities to undertake that core mandate. Ordinarily, the critical aspects of judicial independence include decisional, operational/administrative as well as financial independence.

Operational independence safeguards the ability of the judiciary to run its affairs without interference from other arms of government or from anyone else. Financial independence on the other hand ensures that the judiciary is well funded and fully in control of its funds so that its core duty (decision-making) is not frustrated by either lack of funds or the possibility of a carrot–and-stick approach where the executive dangles funding to extract the decisions it wants. In this regard, the constitution creates a judiciary fund and places it under the administration of the judiciary. Unfortunately, the national government and the treasury have continued to frustrate the full operationalisation of the judiciary fund.

Centrality of an individual judge’s independence

Importantly, the foundational rationale for judicial independence and its different facets is securing the decision maker’s (judge and magistrate) individual independence. This is commonly referred to as decisional independence. In the end, the judiciary exists for only one reason: to adjudicate disputes. In this regard, the person who is charged with decision making is the one who is the primary beneficiary of judicial independence. Of course, ultimately, everyone benefits from an independent judiciary.

Still, the constitution has specific and high expectation of the decision-maker, including that he or she makes decisions based only on an objective analysis of the law and the facts. The decision maker must not be mesmerised or cowed by power. He or she should never be beholden to power – in the present or the future. Simply put, under the constitution, a decision maker should never have to think about personal consequences that he or she may suffer for making a decision one way or another as long as that decision is based on an honest analysis of the law and the facts. Put a bit differently, the decision maker should never have to make (or even think of calibrating) his or her decision to please those in or with power – either within the judiciary or outside it – with the expectation that it will help him or her to obtain professional favours, promotion or to avoid reprisals.

And this is why Uhuru Kenyatta’s cherry-picking of who should or should not be appointed judge is the greatest threat to judicial independence in Kenya.

But first a quick word on what the constitution says about the process of selecting, appointing and disciplining judges.

Selection and disciplining of judges

Before 2010, the president played a controlling role in the selection of judges. This meant that the surest way to become and remain a judge was by being in the good books of the president and his handlers. The result was that the judiciary was largely an appendage of the executive – and could hardly restrain the abuse of public power by the president or other ruling elites. The 2010 constitutional provisions on the judiciary were deliberately designed to eliminate or highly diminish this vice.

The power to select judges was given to the Judicial Service Commission (JSC), a body representative of many interest groups, the president key among them. Constitutionally, the president directly appoints three of the 11 JSC members: the attorney general and two members representing the public. But with his usual ingenuity at subverting the constitution, Uhuru Kenyatta has added to this list a fourth – by telling the Public Service Commission (PSC) who should be its appointee. Regardless, while there are always endless wars to control the JSC especially by the executive, the many interests represented complicate a full takeover of the JSC by the executive or any other interests. And that is partly what the constitution intended to achieve. The law – which the court has clarified numerous times – is that once the JSC has nominated persons to be judges, the president’s role is purely ceremonial, and one that he performs in his capacity as head of state. He must formally appoint and gazette the appointment of the judges. No ifs, no buts.

This is why Uhuru Kenyatta’s cherry-picking of who should or should not be appointed judge is the greatest threat to judicial independence in Kenya.

In fact, the law further clarifies that not even the JSC can reconsider its recommendation once it has selected its nominees. There is a good reason for this unbendable procedure – it helps to insulate the process from manipulation especially once the JSC has publicly disclosed its judge-nominees. Still, the constitution preserves for the president, the JSC and citizens the option of pursuing a rogue nominee by providing the realistic possibility for the initiation of a disciplinary and removal process of a judge even after appointment if there are legitimate grounds for such action.

In this regard, the JSC also has the responsibility to discipline judges by considering every complaint made against a judge to determine whether there are grounds to start proceedings for removal. It is to be noted that the president has more substantive powers in relation to the removal of judges. This is because if the JSC determines that there are grounds for the removal of a judge, the president’s hand is mostly unrestrained with regards to whom he appoints to sit on the tribunal to consider whether a judge should be removed. Unfortunately, there is an emerging trend that indicates that Uhuru undertakes this task in a biased manner by subjectively selecting tribunal members who will “save” the judges he likes.

The injustice of cherry-picking

Now, back to the injustices of Uhuru’s cherry-picking of judges for appointment.

The injustice is horrific for both the appointed judges and those who are not appointed, especially those of the Court of Appeal. Under the 2010 constitution, you do not become a superior court judge by chance.. For High Court judges nominated to the Court of Appeal, this is earned through hard work, countless sleepless nights spent writing ground-breaking judgments and backbreaking days sitting in court (likely on poor quality furniture) graciously listening to litigants complain about their disputes all day, and then doing administrative work to help the judiciary keep going. All this while maintaining personal conduct that keeps one away from trouble – mostly of the moral kind. Magistrates or other judicial staff who move up the ranks to be nominated judges endure the same.

The injustice is horrific for both the appointed judges and those who are not appointed, especially those of the Court of Appeal

If ever there was a list of thankless jobs, those of judges and magistrate would rank high on the list. It is therefore completely unacceptable that a faceless presidential advisor –  probably sitting in a poorly lit room with depressing décor and a constantly failing wifi connection, and who likely has never met a judge – can just tell the president, “Let’s add so and so to the list of judges without ’integrity’. And by the way, from the last list, let’s remove judge A and add judge Z”. Utterly unfeeling and reckless. Worse, the judge is left to explain to the world what his/her integrity issues are when he or she knows nothing about them.

Psychological tyranny

Cherry-picking also creates a fundamental perception problem. Kenya’s Supreme Court has confirmed that perception independence is a critical element of independence. For litigants appearing before the judges who were appointed in cases involving the president or the executive, it will be hard to shake-off the stubborn but obviously unfair thought that the judge earned the appointment in order to be the executive’s gatekeeper. That is what minds do; they conjure up possibilities of endless, and at times, conspiracy-inspired thoughts. Similarly, those who appear before a judge who was left out will likely believe that the judge – who decides a case impartially but against the executive – is driven by the animus of non-appointment. And you can trust the president’s people to publicly say as much and even create a hashtag for it. Yet such perceptions (of a judge who is thought to favour or be anti-executive) are relevant because justice is both about substance and perception.

And that is the psychological tyranny of Uhuru’s unconstitutional action – for both the judges that have been appointed and to those who have not. It is, indeed, a tyranny against the judiciary and, in a smaller way, against all of us. Perhaps just as Uhuru intended it to be.

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COVID-19 Vaccine Safety and Compensation: The Case of Sputnik V

All vaccines come with medical risks and Kenyans are taking these risks for their protection and that of the wider community. They deserve compensation should they suffer for doing so.

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COVID-19 Vaccine Safety and Compensation: The Case of Sputnik V
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How effective is Kenya’s system for regulating new medicines and compensating citizens who suffer side-effects from taking them? Since March 2021, Kenya has been using the AstraZeneca vaccine supplied through  COVAX to inoculate its frontline workers and the older population. This is available to the public free of charge, according to a priority list drafted by the Ministry of Health (MOH). The Pharmacy and Poisons Board (PPB) also approved the importation of the Sputnik V vaccine from Russia, which was initially available through private health facilities only at a cost of KSh8,000 per jab, before the MOH banned it altogether. However, there were reports in the media that the vaccine continued to be administered secretary even after the ban.

Although side effects are rare, we know that all vaccines come with certain medical risks. Kenyans taking vaccines run these risks not just for their own protection, but also for that of the wider community. The state has a responsibility to protect citizens by carefully controlling the distribution of vaccines and by ensuring that adequate and accessible compensation is available where risks materialise. These duties are enshrined in the constitution which guarantees the right to health (Article 43) and the rights of consumers (Article 46).

A system of quality control before the deployment and use of medicines is set out in the Pharmacy and Poisons Act the Standards Act, the Food, Drugs and Chemical Substances Act and the Consumer Protection Act. However, the controversy over Sputnik V in Kenya has cast doubt on the coherence and effectiveness of this patchwork system. Moreover, none of these Acts provides for comprehensive compensation after deployment and use of vaccines.

Vaccine approval and quality control

Subject to medical trials and in line with its mandate to protect global health, WHO has recommended specific COVID-19 vaccines to states. Generally, WHO recommendations are used as a form of quality control by domestic regulators who view them as a guarantee of safety and effectiveness. However, some countries rely exclusively on their domestic regulators, ignoring WHO recommendations. For instance, the UK approved and administered the Pfizer vaccine before it had received WHO approval.

The COVAX allocation system fails to take into account the fact that access to vaccines within countries depends on cost and income.

By contrast, many African states have relied wholly on the WHO Global Advisory Committee on Vaccine Safety given their weak national drug regulators and the limited capacity of the Africa Centre for Disease Control (CDC). The Africa CDC itself deems vaccines safe for use by member states on the basis of WHO recommendations. Kenya has a three-tier approval system: PPB, Kenya Bureau of Standards and WHO. The PPB relies on the guidelines for emergency and compassionate use authorisation of health products and technologies. The guidelines are modelled on the WHO guidelines on regulatory preparedness for provision of marketing authorization of human pandemic Influenza vaccines in non-vaccine producing countries. However, prior to approval by PPB, pharmaceuticals must also comply with Kenya Bureau of Standards’  Pre-Export Verification of Conformity standards .

Vaccine indemnities and compensation 

To minimise liability and incentivise research and development, companies require states to indemnify them for harm caused by vaccines as a condition of supply. In other words, it is the government, and not manufacturers, who must compensate them or their families where required. Failure to put such schemes in place has undermined COVID-19 vaccine procurement negotiations in some countries such as Argentina.  Indemnities can be either “no-fault” or “fault”-based’.

No-fault compensation means that victims are not required to prove negligence in the manufacture or distribution of vaccines. This saves on the often huge legal costs associated with tort litigation. Such schemes have had a contested history and are more likely to be available in the Global North. By contrast citizens of countries in the Global South must rely on the general law, covering areas such as product liability, contract liability and consumer protection. These are usually fault-based, and require claimants to show that the vaccine maker or distributor fell below widely accepted best practice. Acquiring the evidence to prove this and finding experts in the sector willing to testify against the manufacturer can be very difficult.

By default, Kenya operates a fault-based system, with some exceptions. Admittedly, citizens have sometimes been successful in their claims, as in 2017 when the Busia County Government was ordered by the High Court to compensate victims of malaria vaccines. The High Court held that county medics were guilty of professional negligence, first by not assessing the children before administering the vaccines, and second by allowing unqualified medics to carry out the vaccination.

The problem is that the manufacturer has not published sufficient trial data on the vaccine’s efficacy.

In recognition of these difficulties, and in order to ensure rapid vaccine development during a global pandemic, WHO and COVAX have committed to a one-year no-fault indemnity for AstraZeneca vaccines distributed in Kenya. This will allow victims to be compensated without litigation up to a maximum of US $40,000 (approx. KSh4 million). To secure compensation, the claimant has to fill an application form and submit it to the scheme’s administrator together with the relevant evidentiary documentation. According to COVAX, the scheme will end once the allocated resources have been exhausted. The scheme also runs toll-free telephone lines to provide assistance to applicants, although the ministries of health in the eligible countries are also mandated to help claimants file applications.

Beneficiaries of the no-fault COVAX compensation scheme are barred from pursuing compensation claims in court. However, it is anticipated that some victims of the COVAX vaccines may be unwilling to pursue the COVAX scheme.  At the same time, since the KSh4 million award under COVAX  is lower than some reliefs awarded by courts in Kenya, some claimants may avoid the restrictive COVAX compensation scheme and opt to go to court. Because such claimants may instead sue the manufacturer, COVAX requires countries to indemnify manufacturers against such lawsuits before receiving its vaccines.

Sputnik V 

Sputnik V is different. Neither the WHO-based regulatory controls before use, nor the COVAX vaccine compensation scheme after use applies. Sputnik has not been approved by WHO or the Africa CDC. The PPB approved its importation in spite of the negative recommendation of Africa CDC, and in the face of opposition from the Kenya Medical Association. The rejection of Sputnik in countries like Kenya is partly due to the reluctance of Russia’s Gamaleya Institute to apply for WHO approval, partly because the manufacturer has not published sufficient trial data on the vaccine’s efficacy, and partly due to broader mistrust of the intentions of the Russian state. This may be changing as Africa CDC Regulatory Taskforce and European Medicines Agency are now reviewing the vaccine for approval while 50 countries across the globe have either approved its use- or are using it already. In Africa, Ghana  Djibouti, Congo and Angola have approved the use of Sputnik V with Russia promising to donate 300 million doses to the African Union. Such approvals have been hailed for providing an alternative supply chain and reducing overreliance on the West.

As regards compensation, Russia has indicated that it will provide a partial indemnity for all doses supplied. However, no clear framework has been set out on how this system will work. There has therefore been no further detail on the size of awards, and whether they will be no-fault or fault-based. This lack of legal specifics has added to the reluctance of countries around the world to adopt the vaccine.

As matters stand, therefore, the Kenyan government would not be able to indemnify private clinics importing and administering Sputnik V. The absence of a statutory framework on vaccine compensation by the state makes this possibility even less likely. Nor would compensation be available from the Gamaleya Institute. The only route then would be through affected citizens taking cases based on consumer protection legislation and tort law in the Kenyan courts. As we have noted, this is complex and costly. Claims might be possible in Russia, but these problems would be exacerbated by language barriers and differences between the legal systems, as well as the ambiguity of the Russian compensation promises.

The private sector can complement state vaccination efforts, but this must be done in a way that guarantees accessibility and safety of citizens.

Although the importers obtained a KSh200 million insurance deal with AAR as a precondition for PPB authorisation, the amount per claimant was restricted to KSh1 million, which is well below the WHO rates and the average tort rates ordered by Kenyan courts.  As an alternative to claiming against the manufacturers and distributors, injured patients might sue the Kenyan government. Such a claim would allege state negligence and dereliction of statutory and constitutional duties for allowing the use of a vaccine that has not been approved by global regulators such as WHO, thus exposing its citizens to foreseeable risks. This would be particularly attractive to litigants given the difficulties in recovering from the Russian authorities and the risk that Kenyan commercial importers would not be able to meet all possible compensation claims. Ironically, the use of the Sputnik V vaccine in private facilities still exposes the government to lawsuits even if it didn’t facilitate the vaccine’s importation and distribution.

What the government needs to do

The acquisition of vaccines has been undermined by the self-interested “nationalism” of states in the Global North. Only after buying up the greater part of available vaccines have they been willing to offer donations to the rest of the world. These highly publicised commitments fall far short of what is required in the Global South. Kenya’s first task must be to intensify its diplomatic efforts to increase supply through bilateral engagement with vaccine manufacturing states and in multilateral fora like the World Trade Organization, acting in alliance with other African states. Such steps are only likely to bear fruit in the medium term, however. In the short term, it is certainly sensible to involve private companies in vaccine procurement and distribution in order to supplement the supplies available through COVAX. This is recognised in Kenyan and international law as an acceptable strategy for securing the right to health. But it must be done in a way that guarantees accessibility and the safety of citizens. Accordingly, Kenya should encourage Russia (and all vaccine manufacturers) to publish full trial data showing effectiveness and risks, and to seek WHO approval on this basis. It should require them to establish and publicise detailed indemnity frameworks to allow for comprehensive and accessible compensation. It should acknowledge that citizens accepting vaccines are not only protecting themselves, but also the wider national and global community. With adequate regulation before use, the risk of doing so can be minimised and made clearer. But some risk remains, and those who run it deserve to be compensated for doing so. It is therefore imperative for Kenya to establish its own no-fault indemnity scheme for all state-approved vaccines, including those imported by the private sector.

This article draws from COVID-19 in Kenya: Global Health, Human Rights and the State in a time of Pandemic, a collaborative project involving Cardiff Law and Global Justice, the African Population and Health Research Centre, and the Katiba Institute, funded by the Arts and Humanities Research Council (UK).

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