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Beyond Smoke and Mirrors: Why Kenyans Need to Pay Closer Attention to the IEBC, Census 2019 and the Building Bridges Initiative

8 min read.

If both Parliament and these nascent movements fail to forestall the efforts of the ‘system’, it is certain to use the Chebukati report, the boundary demarcation process, the population census and the Building Bridges Initiative to entrench itself and it will be interesting to see how the ‘hustlers’ respond to this direct challenge to their ‘turn to eat’.

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Beyond Smoke and Mirrors: Why Kenyans Need to Pay Closer Attention to the IEBC, Census 2019 and the Building Bridges Initiative
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Even as the state-controlled media holds us in thrall to the charade that is the war on corruption, preparations are underway to fundamentally change Kenya’s political system. The weekly reports of corruption are overwhelming and it is a challenge to keep track of who has said what and who has allegedly been grilled by investigators. What is clear is that a game of politics is being played, a game that is likely to go on until it is time to hold elections or a referendum to entrench vested interests. This is why I will instead focus on the self-congratulatory post-election evaluation report issued by the Independent Electoral and Boundaries Commission (IEBC), the preparations for the population census and demarcation of electoral boundaries, and what the so-called Building Bridges Initiative has up its sleeve. These three issues will have a more profound effect on our lives beyond the game of smoke and mirrors that is the war on corruption.

Even as the state-controlled media holds us in thrall to the charade that is the war on corruption, preparations are underway to fundamentally change Kenya’s political system

Let us turn to IEBC Chairman Wafula Chebukati’s 280-page report. If you have the patience to read through the 186 pages (the rest are annexes), you will be struck by how tone-deaf and dry it is. It describes an election process that was almost flawless and fails to capture the toll, both financial and emotional, that it took on the Kenyan people. Reading the report alongside that of the Parliamentary Accounts Committee (PAC), which basically indicts the entire IEBC leadership, is astounding. It reads even more bizarrely in the light of the end of assignment report submitted by former Commissioner Roselyn Akombe upon her resignation from the IEBC.

One would have expected that, during an election year in which election officials were murdered, the Chairman would pay tribute to his staff. The Chebukati report makes no reference to the murder of Chris Msando, a senior IEBC manager, or to any of the staff killed or injured, particularly in the period preceding the 26 October 2017 repeat presidential election. It is as though the murder, intimidation and threats against staff, including against the Chairman himself, did not take place.

Reading the report alongside that of the Parliamentary Accounts Committee (PAC), which basically indicts the entire IEBC leadership, is astounding. It reads even more bizarrely in the light of the end of assignment report submitted by former Commissioner Roselyn Akombe upon her resignation from the IEBC.

In a chapter dedicated to electoral security, there is no reference to the threats and intimidation visited upon IEBC staff by both Jubilee and NASA. The report instead dwells on details of a project funded by the United Nations (UN) to support police deployment, the very forces accused of violence against voters. The IEBC postponed and eventually never held presidential polls in Homa Bay, Migori, Kisumu and Siaya counties, citing insecurity. There were numerous reports of polling officials in these counties having been threatened and even seriously injured.

If the Commission can sweep under the carpet issues of safety and security, why should we believe anything else it says in the report?

The report’s section on the use of information technology is even more disturbing. The Commission paints a picture of full compliance with the law in this area and identifies only two challenges: “inadequate time to procure, install, test, and commission technology due to late enactment of laws by parliament” and “lack of regulations to govern the scrutiny of election technology during petition proceedings.” The PAC report is much more detailed and transparent in its evaluation of the Commission’s performance on ICT. It shows, as does former Commissioner Akombe’s report, the intrigues behind the procurement of the Kenya Integrated Elections Management System (KIEMS). The technology was deliberately sabotaged to benefit one party with the full knowledge and connivance of the IEBC and the selection of OT-Morpho to supply the technology was orchestrated by powerful state actors while some of the consultants provided by the UN to work with OT-Morpho were affiliated to the Jubilee Party. The murder of Chris Msando was pre-meditated and it had the desired effect. That the Chebukati report completely avoids reference to these issues – among many others – while presenting the IEBC as the victim, only serves to remind us of the wrongs committed by the IEBC against this country.

The Commission paints a picture of full compliance with the law in this area and identifies only two challenges: “inadequate time to procure, install, test, and commission technology due to late enactment of laws by parliament” and “lack of regulations to govern the scrutiny of election technology during petition proceedings

The forward by the Chairman is even more revealing of the inability of the Commission to honestly reflect upon its failures. The Chairman describes the 8 August 2017 election thus: “the Commission eventually conducted the August 8th General Election within the prescribed legal framework.” This is despite the fact that the Supreme Court annulled the presidential result, which Chebukati describes as “a season of mixed fortunes.”

It is difficult to comprehend how a person qualified to serve as a judge of the Supreme Court could refer to a historic annulment of a presidential vote as “mixed fortunes.” This is the same person who agonised over the release of the election results after informing the press that he could neither confirm nor deny reports that IEBC servers had been hacked. The entire report reads in the same flat manner, mechanically detailing tasks undertaken by each directorate and – with the exception of legal reforms – putting forward underwhelming recommendations.

One may wonder why we should pay attention to the Chebukati report but it is precisely because of its links to the population census/electoral boundary demarcations exercise and the Building Bridges Initiative that we should.

The Chairman describes the 8 August 2017 election thus: “the Commission eventually conducted the August 8th General Election within the prescribed legal framework.” This is despite the fact that the Supreme Court annulled the presidential result, which Chebukati describes as “a season of mixed fortunes.”

Despite the questions raised regarding the legitimacy of the Commission (only three of the requisite seven members remain and it is without gender parity, a constitutional requirement), it is business as usual over at the IEBC. The report is an affirmation that the ‘system’ is intact and ready to move on, that the IEBC has evaluated itself and found itself worthy of undertaking any major task placed before it. Chebukati says that the “Commission will also engrain the successes of the 8th August General Election and the 26th October Fresh Presidential Election.” The Commission seems to exist in a different universe where it alone could consider the 2017 General Election to have been successful. The Commission has signaled that it is ready to bury the past, together with all the questions that remain unanswered, and develop “concrete strategies that will assuage, if not cure, the missteps that may have been evident in the grand match towards a widely accepted election outcome.” This means that the Commission can now tackle the next item on the electoral calendar, the border demarcation process.

The game of politics has many tricks the most common of which is gerrymandering, the act of manipulating boundaries to benefit a political party or politician. Chebukati is now perceived as the safe pair of hands that can handle the gerrymandering. If he ever did have a moral compass, he lost it when he presided over the 26 October 2017 presidential election. He and his team are now fully initiated members of the system. Once an outsider, he has now joined the camp of Commissioners Molu Boya and Abdi Yakub Guliye and as one official who has witnessed the contempt with which both Guliye and Boya previously held Chebukati remarked, “they seem to have found a formula which works for them.”

The formula in question is the willingness to serve the system and the whims of those in power. The boundary demarcation exercise will predictably be used as another tool to manage the new bogeyman, the Deputy President. With the population census fully in the hands of the three Commissioners, we should expect the return of the ‘tyranny of numbers’ narrative. We should expect that those parts of the country with a historically low birth rate will experience miraculous increases in their population while others will magically have higher death rates and lower numbers of new births since the last census. The ‘system’ will work closely with the Chebukati team to manipulate the boundaries to benefit those who have a vested interest in maintaining their political and economic hold on the country.

The second significance of the Chebukati report lies in the ongoing debate on constitutional and legal reforms. Anybody who has followed political processes in Africa knows that these documents come in handy when one wants to change the constitution. Chebukati has served his masters well once again by providing in his report arguments which could be used to amend certain laws. The report is likely to be used as a source of inspiration by the Building Bridges Initiative. The report even provides a timeline for legal reforms which “… should be carried out at least two years to the election”, meaning that those planning a referendum need to hold it now or next year at the very latest.

The legal reforms proposed by the Commission go beyond electoral law amendments to include constitutional issues such as the electoral cycle. The report attempts to disingenuously insinuate itself into the debate on whether there are too many electoral positions without providing sufficient argument or data. It suggests that the electoral law should be amended to allow the holding of county and national elections on different dates, without providing any explanations beyond citing the fatigue of poll workers.

There are initiatives by members of parliament which could scuttle the processes set up so far by the ‘system’ but it is unclear if there is sufficient parliamentary momentum for their success.

All these are deliberate ploys by the Commission to anchor the report of the Building Bridges Initiative team to this “broadly consulted” post-election review. There are reports that the Building Bridges Initiative team is also finalising consultations. We have all too often seen predetermined recommendations emerge from purported view seeking exercises among Kenyans. At any rate, Rt. Hon. Raila Odinga has already outlined the key elements to be expected in that report, as a precursor to the referendum. The ground is being prepared for the dynasties to protect their economic and political interests and for the hustlers to defend their loot.

The big question is what the rest of the population will do. Will we tug along and play victim later? Will we try to avoid treading on the path laid out before us by ‘the men from the shadows’ as John Githongo calls them? This is still unclear.

There are initiatives by members of parliament which could scuttle the processes set up so far by the ‘system’ but it is unclear if there is sufficient parliamentary momentum for their success. Hon. Peter Kaluma has proposed reverting to the 1997 Inter-Parties Parliamentary Group (IPPG) model where political parties nominate Commissioners. This would mean changing the current composition of the IEBC, potentially delaying a referendum or even the boundary demarcation exercise if the selection process is protracted. Senate Majority Leader Kipchumba Murkomen is proposing changes to the Elections Act where parliament, rather than the IEBC, would have the final say on boundaries. Meanwhile, the cross-party PAC report recommends the immediate departure and prosecution of the current Commissioners.

However, all these processes would require parliamentary approval, not an easy task in the current political climate. With the Jubilee Party infighting, it is not clear if it will be possible to marshal enough votes and the situation is no clearer in the NASA camp although it is difficult to imagine ODM party members defying Rt. Hon. Raila Odinga, lest they face his wrath as Malindi Member of Parliament, Hon. Aisha Jumwa recently did. As one friend remarked, “Baba is confident that Chebukati will deliver the referendum and presidential election for him.” It is also unlikely that the cross-party PAC report will have its day in parliament unless, of course, those at the helm of the Building Bridges Initiative determine that it is in their interest to implement the recommended changes.

The solution could be found away from parliament. There are media reports of civilians organising themselves around the Red Vests Revolution, Beyond Zero Corruption and Kenya Tuitakayo movements. Many of these groups appear to have been inspired by the French Yellow Vests protests and the ongoing protests in Algeria and Sudan. These faceless movements, if they are to have any impact, need to organise differently and focus on the issues that will galvanise the population. There is the likelihood that the State will find a way to silence these voices, but this should only serve to strengthen the resolve of those involved.

If both Parliament and these nascent movements fail to forestall the efforts of the ‘system’, it is certain to use the Chebukati report, the boundary demarcation process, the population census and the Building Bridges Initiative to entrench itself and it will be interesting to see how the ‘hustlers’ respond to this direct challenge to their ‘turn to eat’. Until then we can only expect another post-election or post-referendum report that glosses over issues and presents the illusion of a flawless electoral process that is unrecognisable to the country’s citizens.

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

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

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

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

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

Centrality of an individual judge’s independence

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

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

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

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

Selection and disciplining of judges

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

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

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

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

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

The injustice of cherry-picking

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

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

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

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

Psychological tyranny

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

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

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

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

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

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

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

Vaccine approval and quality control

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

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

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

Vaccine indemnities and compensation 

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

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

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

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

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

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

Sputnik V 

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

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

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

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

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

What the government needs to do

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

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

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

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

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

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

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

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

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

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

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

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

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

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