The year was 1998, just after the second multiparty elections that, like the first, was marred by ethnicized political violence and allegations of massive fraud. The horizon was ominous. Moi would be coming to his two-term limit in the subsequent election, and there was already talk of a constitutional amendment to remove the term limit as was happening in Zambia and elsewhere at the time. The economy was in free fall. The big imponderable then was whether Moi would go when the time came, and whether the country could survive a conflagration if he sought to cling to power by hook or crook.
The departure point of Scenarios was that Kenya’s business model had reached the end of the road: “Kenya had reached the limits of its chosen political and economic models.” This prognosis was captured by an analogy of an umbrella. We inherited at independence a dualism of the colonial era which created a “modern” enclave sector occupied by Europeans and their Asian and African auxiliaries, and a “native sector” occupied by the excluded African masses. The modern enclave, which I prefer to call the privilege sector, comprised the State, a small corporatized economy with superior social amenities especially education facilities and urban residencies. Colonial Europeans had the exclusive Duke of York, Prince of Wales and other exclusive schools, Asians had their own — the Duke of Gloucester, Allidina Visram, Racecourse Secondary — and the lucky few Africans had Alliance, Maseno, Mang’u and a few others. Even though African schools and urban residencies were below those enjoyed by Europeans they were way above the life of the ordinary native. Once you got into one of these schools, you had made it.
The departure point of Scenarios was that Kenya’s business model had reached the end of the road: “Kenya had reached the limits of its chosen political and economic models.”
Now think of the enclave economy, the privilege sector if you like, as an umbrella. People under the umbrella are protected from the elements, but how well protected you are depends on your position inside the umbrella. People at the centre are completely protected and warm, while those at the periphery are less protected, but they are better than those outside. The trick is to get deeper into the umbrella until you are the guy actually holding it.
Before independence Europeans were at the centre, followed by Asians, and Africans at the periphery. After independence, many Europeans and some Asians left making more room for Africans to move deeper into the umbrella, and a few more to move into the shelter.
A fresh graduate was guaranteed a position previously occupied by a European, and a high school leaver, a position previously occupied by an Asian. Even though there was a whiff of tribalism, with Kikuyus getting the prime jobs, all Africans with university education got on the gravy train. Those with post-graduate degrees went straight to the top of the public service.
We inherited at independence a dualism of the colonial era which created a “modern” enclave sector occupied by Europeans and their Asian and African auxiliaries, and a “native sector” occupied by the excluded African masses.
By the mid-seventies the privilege sector was already feeling the strain of the numbers of people. Up until then anybody with an O-Level Div. 3 was assured a good clerical job in the private sector while A Levels who did not proceed to university or diploma courses joined as management trainees.
By the end of the `80s, the economy was struggling to absorb 2000 university graduates a year.
The problem was about to get a whole lot worse.
In 1990, the labour force was in the order of four million people, of which one million, a quarter that is, were in the “privilege sector” (i.e. public and private sector formal wage jobs). The other three quarters were in the informal non-agricultural and smallholder agriculture. Unemployment was relatively low, since smallholder agriculture and informal sector was absorbing those who did not get into the privilege sector.
Three decades on, the Kenya National Bureau of Statistics estimated the economically active population (15-64 year-olds) at 25 million, and the actual labour force (i..e excluding students and others inactive) at 19 million — a five-fold increase. Formal wage employment is estimated at 2.7 million and non-farm informal employment at 14 million, leaving one million unemployed, and implying that there are just about two million smallholder farmers and pastoralists. Out of the increase of 16 million, the privilege sector has absorbed 1.7 million, only 10 percent, and its contribution to employment is down to 8.5 percent from 25 percent three decades ago.
In the meantime, university enrolment has increased to 500,000 which works out to 125,000 graduates a year, or 63 times the rate three decades ago, while the privilege sector is absorbing just over 100,000 a year. Even if they took up all the jobs, the privilege sector simply cannot absorb the annual throughput of university graduates.
In 1990, the labour force was in the order of four million people, of which one million, a quarter that is, were in the “privilege sector”… Three decades on, the economically active population (15-64 year-olds) is at 25 million, and the actual labour forceS at 19 million — a five-fold increase.
This encapsulates what the scenarios team meant by the end of the road: “Radical changes to revive the economy, a comprehensive reorganization of Kenya’s primary institutions, models of governance and relationships between citizenry and the government are all required.” Would it happen?
Two transformational imperatives were self evident, political and economic, making for four possible scenarios. The first is the No Reform scenario, that is, the continuation of the trajectory that the country was on at the time. We called this the El Nino scenario. The second is the economic reform-only scenario. We called this scenario Maendeleo. The third is political reform-only scenario. We called this the Katiba scenario. Initially, these were the only scenarios developed. But when presented to the project trustees, they argued that the presented scenarios were all too pessimistic and insisted that the team develop a fourth scenario with both political and economic reform. The team obliged, even as it felt this was not a viable prospect. We called this the Flying Geese scenario (See ‘Kenya Scenarios Project’ box).
Kenya’s politics for the better part of the last two decades can be characterized as a struggle between the Maendeleo and Katiba scenarios.
University enrolment has increased to 500,000 which works out to 125,000 graduates a year, or 63 times the rate three decades ago.
In 2003, the National Rainbow Coalition (NARC) rode to power on a Katiba platform. For a short while, the cross-ethnic unity of purpose displayed by erstwhile bitter political rivals, reminiscent of the Flying Geese scenario, made Kenyans the most optimistic people in the world. It did not last. On assuming office the old order coalesced around Kibaki, sabotaged the constitution-making process, and proclaimed a Maendeleo agenda. Instead of a constitution, we got Vision 2030. Katiba-Maendeleo was not just a battle between politics and economics but it played out in the economic arena, between NARC’s bottom-up-inclusive growth and the trickle-down economics of the privilege economy. A good number of the experts I mobilized to work on NARC’s Economic Recovery Strategy (ERS), Betty Maina, Sam Mwale, Gem Kodhek, Wachira Maina, Richard Ayah, John Kashangaki, Joslyn Ogai among others, were members of the scenarios team, as was Prof. Anyang’ Nyong’o, the minister in charge of the ERS. After the 2005 referendum, the transformative political and economic agenda was abandoned. Instead of a new constitution and the economic empowerment agenda that NARC had promised, we got the trickle-down infrastructure-led Vision 2030.
Kenya’s politics for the better part of the last two decades can be characterized as a struggle between the Maendeleo and Katiba
It took the 2007/8 post-election violence to jolt maendeleoism back to reality, and create the impetus for the 2010 Constitution. It is our great misfortune that we put the constitution in abeyance for two years instead of going to election immediately after promulgation as is the norm. This gave time for the old order to regroup behind the anti-ICC narrative. The rest, as they say, is history.
For the 2017 general election, we once again united the opposition around the Katiba platform. NASA was crafted straight out of the 2003 NARC playbook. Those who paid attention to the manifestos may have noted that the NASA manifesto led with the political reform agenda, followed by social and economic priorities in that order, while the Jubilee one led with an economic agenda; social and political reforms were treated almost as an afterthought.
It is our great misfortune that we put the constitution in abeyance for two years instead of going to election immediately after promulgation as is the norm.
The Jubilee government’s plunder and incompetence has no doubt contributed to the economic implosion that is now unfolding. Perhaps distracted by the melodrama of the plunder and blunders, the clawback of the privilege sector has gone, if not unnoticed, then unremarked. Recently, a Principal Secretary gloated on social media that they have secured US$26 billion in pledges from investors for the housing pillar of the so called Big Four Agenda, whose claim to bigness no one seems to know. Twenty-six billion dollars is a lot of money. It is equivalent to the GDP of Uganda. The idea that a government of a country that cannot feed itself can contemplate investing that kind of money in urban middle class housing, let alone shout about it, is astounding. The question I posed to him: what will the houses produce?
According to the National Housing Survey conducted by the KNBS five years ago, 60 percent of Kenyans live in their own houses (88 percent of rural. No surprises there — Kenya is still a predominantly agrarian society — 60 percent of Kenyans are rural and 88 percent live on land they own. Urban home ownership stood at 30 percent but this understates actual home ownership, as many urban residents also own rural homes, and actually see their sojourns into cities and towns as temporary.
Recently, a Principal Secretary gloated on social media that the government has secured US$26 billion in pledges from investors for the housing pillar of the so called Big Four Agenda. Twenty-six billion dollars is the equivalent to the GDP of Uganda. That a government of a country that cannot feed itself can contemplate investing that kind of money in urban middle class housing…is astounding.
More significant perhaps is that over 70 percent paid monthly rents under Sh. 6,000, and 90 percent under Sh.10,000. Realistically, only about 10 percent of urban residents, less than three percent of Kenyans, are in the potential home ownership bracket. It’s hard to see what kind of logic would lead the government to the conclusion that urban middle class home ownership is one of the country’s top four development priorities. But this is the logic of the privilege society.
In the old days, entitlement was rationalized with the graduates being the creme de la creme of society, a merited reward for scaling the heights to reach the pinnacle of academic achievement. Many students did the minimum necessary to graduate. Those who seemed to be “overworking” were often frowned upon. The former were right in a sense. Education replaced Race as a ticket to the top of the social ladder. Not what you do, but who you are, a graduate. Graduates were the new whites. Times and circumstances have changed, but culture dies hard. It is in the rubric of this culture that prioritizing residential housing over enterprises in a country with a monumental unemployment crisis can look perfectly normal.
With Maendeleo imploding, and Katiba proving too potent a threat to privilege, what we see now is a political class in self-preservation mode, laying the groundwork for what I’ve called an eat-and-let-eat grand ethnic coalition—KANU 3.0. In the meantime, the demographic clock ticks, at the rate of 150,000 university graduates a year. Frustrations rise.
Education replaced Race as a ticket to the top of the social ladder…Graduates were the new whites.
Where does the political class think it is going with this? No political reforms, no economic reforms. That would be El Nino:
“The state is captured by a small elite that employs it as an agent of its own private enterprise. On the other hand, the economy is characterized by low productivity which makes it impossible for the population to realize upward economic mobility. Thus, the construction of both the economic and political spaces generates tension and conflict. The result is an implosion.”
The Kenya at the Crossroads Scenarios proved prescient 20 years ago. It may well be yet again.
El Nino: “The state is captured by a small elite that employs it as an agent of its own private enterprise. On the other hand, the economy is characterized by low productivity which makes it impossible for the population to realize upward economic mobility. Thus, the construction of both the economic and political spaces generates tension and conflict. The result is an implosion.”
The Kenya at the Crossroads Scenarios
No Political Reforms, No Economic Reforms: El Nino
In the El Niño scenario, neither the reform of the state nor the restructuring of the economy takes place. It is a story in which the state remains predominantly patron-client based and therefore partisan, subjective and ineffective in the manner in which it performs its functions. The state is captured by a small elite that employs it as an agent of its own private enterprise. On the other hand, the economy is characterized by low productivity which makes it impossible for the population to realize upward economic mobility. Thus, the construction of both the economic and political spaces generates tension and conflict. The result is an implosion.
Economic Reforms with Minimal Political Reforms: Maendeleo
This scenario explores a technocratic attempt to reform the economy with a view to using economic gains as a means of pre-empting or forestalling demands for political reform. The major assumption in this scenarios is that if the economy is growing steadily, there will be little or reduced demand for political reform. Whilst this model is initially successful, as the limits of the system are reached and economic growth slows down, the demands for political reform pick up once again and the system is faced with two basic choices: to be repressive (and perpetuate the economic decline) or negotiate political reforms (and kick-start the economy again). Though this strategy leads to short-term gains, it breeds a lot of inequality. Without addressing the deeper political and structural questions with regard to Kenya’s problems, this success cannot be maintained for a long period. Sooner or later, one has to address these structural questions.
Political Reforms with Minimum Economic Reforms: Katiba
The Katiba scenario presupposes a successful political negotiation that sees the country adopt a new constitution which recognizes the diversity of the peoples of Kenya and puts in place a mechanism of checks and balances which ensure that the centre is not in a position to dominate over any of the regions of the country.nsuccessful, the outcome for the country can only be bleak. The Katiba story is a story of an inclusive long-drawn out but successful political negotiation process which leads to the reform of and creation of key national institutions. This process takes place in an environment in which there is little or no economic growth. It is the story of a stormy, painful, but decidedly successful attempt by Kenyans to resolve the inconsistencies in their political processes and key institutions of public life that have led to domination, marginalization and fostered corruption. The new institutions reflect the diversity of the country, increase the accountability of leadership at all levels and allow a greater role for the citizen in shaping and managing those activities that affect their day-to-day lives.
Simultaneous Economic and Political Reforms: Flying Geese
This is a scenario of inclusive growth and fundamental institutional reorganization. The team is persuaded that with decisive action and a keen interest in redressing the past and capturing the future, sufficient resolve could be brought to bear and this scenario launched. The Flying Geese story explores the renaissance of Kenya through a determined effort to reform the social, cultural, economic and political models in force. This effort is spearheaded by a new leadership which is armed with a vision and the conviction that Kenya deserves better and can be more than it presently is. For simultaneous reforms on both the economic and political fronts to succeed, a huge reservoir of goodwill is required. There is also a need to for there to be a body (or bodies) that can act as guarantors to the process.
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Kenneth Kaunda: The Founding President of Zambia
Independence leader who fought white rule and helped shape postcolonial southern Africa
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.
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).
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