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An Injustice in Kenya’s History: The TJRC Report Six Years On

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Six years later, writes GABRIELLE LYNCH, little progress has been made on Kenya’s Truth Justice and Reconciliation Commission (TJRC) despite on the gross injustices and abuses that the report outlines.

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An Injustice in Kenya’s History: The TJRC Report Six Years On
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On 21 May 2013, Kenya’s Truth Justice and Reconciliation Commission (TJRC) handed over a four-volume report to President Uhuru Kenyatta. The report outlines a range of injustices and abuses that occurred in the country between December 1963 and the end of the post-election violence in 2008, and provides a range of recommendations and a clear implementation plan. Six years later, little progress has been made on its dissemination or the implementation of its recommendations.

The TJRC Commission collected over 40,000 statements – the largest number of any truth commission to date – and 1,000 memoranda. The Commission also held public and women’s hearings in 35 locations across the country, as well as a series of adversely mentioned person (AMP) and thematic hearings

This is unsurprising given the fate of previous commissions of inquiry, the credibility crisis that surrounded the TJRC’s chairman, and the limited media coverage that the Commission’s work enjoyed. Nevertheless, I find this depressing.

The reason is that, while many paid the TJRC little attention, a significant number of Kenyans opted to relay their stories, pain and fears. This is evident from the numbers; the Commission collected over 40,000 statements – the largest number of any truth commission to date – and 1,000 memoranda. The Commission also held public and women’s hearings in 35 locations across the country, as well as a series of adversely mentioned person (AMP) and thematic hearings.

To be fair, the TJRC’s founders were aware of the inadequacies of speaking, which is why they included “justice” in the title and gave the Commission powers to recommend further investigations, prosecutions, lustration (or a ban from holding public office), reparations, institutional and constitutional reforms, and a limited amnesty.

It is also evident from my own observations; in 2011 and 2012 I spent months following the TJRC around the country attending hearings, speaking to victims, alleged perpetrators and interested parties. From these interactions it was clear that, while many who came before the Commission welcomed the chance to speak, the majority submitted statements or memoranda or provided testimony in the hope that they would be heard and that some action would be taken. As one woman explained to me after a women’s hearing in Nakuru, she was glad that she had spoken as now the Commission would “come in and help”.

To be fair, the TJRC’s founders were aware of the inadequacies of speaking, which is why they included “justice” in the title and gave the Commission powers to recommend further investigations, prosecutions, lustration (or a ban from holding public office), reparations, institutional and constitutional reforms, and a limited amnesty. However, on the question of whether recommendations would be implemented, the Commission rather naively relied on the TJRC Act (2008), which stipulated “recommendations shall be implemented”. However, such legal provisions proved insufficient; in December 2013, parliament amended the Act to ensure that the report would first be considered by the National Assembly, something that is yet to happen.

But how did the TJRC come about and what was its mandate?

The Commission was informed by the belief that, while the post-election violence of 2007/8 was triggered by a disputed election, it was fuelled by more deep-rooted problems.

The establishment of a TJRC was first considered in 2002 at a moment of great optimism and hope after Mwai Kibaki and the National Rainbow Coalition (NARC) ousted President Moi and Kanu from power. However, a task force recommendation that a TJRC be established was ignored by the Kibaki government. The idea was later revived following the post-election violence of 2007/8 and the formation of a coalition government.

The TJRC was established by an Act of Parliament in 2008, began its work in 2009 and submitted a final report in 2013. The Commission was informed by the belief that, while the post-election violence of 2007/8 was triggered by a disputed election, it was fuelled by more deep-rooted problems. It was thus mandated to investigate a wide range of injustices – from perceptions of economic marginalisation and periods of ethnic clashes to state repression and torture – from Kenya’s independence in December 1963 to the end of the post-election violence in February 2008. As a result, while some insights into colonial rule were provided as context for post-colonial realities, the report is silent on Kibaki’s second term in office and Uhuru Kenyatta’s presidency.

In addition to documenting the past, the Commission was able to offer various recommendations including further investigations and prosecutions, reparations, institutional reform and amnesty for non-gross human rights violations. The aim was to contribute to truth, justice, reconciliation, and sustainable peace.

The Commission’s task was thus impossibly large and it also faced additional challenges including a credibility crisis around the Commission’s Chairman and limited media coverage. It was also upstaged by parallel proceedings at the International Criminal Court and was working in a context in which there had been no real transition.

Given these challenges, the report is actually pretty impressive.

Critically, it does not pretend to be exhaustive and recognises how – over four years and in a single report – it could not provide a “definitive history of the broad range of violations committed and suffered” over the course of 45 years (TJRC vol. 1 2013: v).

Given this impossibility, I am keenly aware of how my attempt to summarise a report that runs to over two thousand pages involves further simplification and omission – for which I apologise. Despite this, I think it is worth marking the six-year anniversary of the report’s submission – and recognising all those who engaged with the process – by saying something about the Commission’s findings.

First, it was clear that each regime – from the colonial period through the Kenyatta, Moi and Kibaki eras – had overseen widespread abuses through acts of commission and omission and that Kenyans had suffered (and many continue to suffer) as a consequence.

The establishment of a TJRC was first considered in 2002 at a moment of great optimism and hope after Mwai Kibaki and the National Rainbow Coalition (NARC) ousted President Moi and Kanu from power. However, a task force recommendation that a TJRC be established was ignored by the Kibaki government.

The commission found that all three post-colonial regimes had been responsible for gross human rights violations and concluded that state security forces had been “the main perpetrators of bodily integrity violations of human rights in Kenya including massacres, enforced disappearances, torture and ill-treatment, and sexual violence” with northern Kenya standing at the “epicenter of gross violations of human rights by state security agencies” (TJRC vol. 1 2013: vii).

More specifically, the report outlined how the Kenyatta regime (1963–1978) was responsible for the largest number of political assassinations, and how the repression of dissent reached its apex under the one-party rule of Daniel arap Moi (1978–2002). In turn, while the commission recognised the reforms initiated by the first Kibaki regime (2002–2007), it also drew attention to ongoing corruption, ethnic favouritism and inter-communal violence, and to the collapse of the NARC coalition and the increase in extra-judicial killings, problems which, in its opinion, prepared “fertile ground (…) for the eruption of violence” in 2007–8 (TJRC vol. 2A 2013: 28–29).

The TJRC also highlighted the socio-economic effects of gross human rights violations. These included, for example, the challenges faced by former political detainees in finishing their education, securing employment and caring for their children. At the same time, the report sketches out some of the ways in which socio-economic factors impacted upon bodily integrity rights at a more general level through, for example, the relative vulnerability of marginalised people during conflict.

In terms of inter-communal conflict, the commission blamed the emergence of “negative ethnicity” on colonial rule and Britain’s adoption of a divide and rule strategy and alienation of large tracts of land, with historical grievances over land cited as the “single most important driver of conflicts and ethnic tension” (TJRC vol. 1 2013: vii).

However, all the post-colonial regimes were blamed for the perpetuation of such politics as, rather than provide redress, successive administrations “alienated more land from already affected communities for the benefit of politically privileged ethnic communities and the political elite” (TJRC vol. 1 2013: xiv) and favoured members of their own ethnic groups in employment and appointment processes (TJRC vol. 1 2013: x). According to the commission, a sense of ethnic competition was then exacerbated by multi-party politics, as “ethnicity became an even more potent tool for political [organisation] and access to state resources” (TJRC vol. 1 2013: ix–x). This combination of factors then led to “a volatile environment in which violence had been normalised and ethnic relations had become poisoned” (TJRC vol. 2A 2013: 29).

The commission also emphasised the “pervasiveness of socio-economic violations” across the country (TJRC vol. 1 2013: xv). More specifically, it found that – in addition to the socio-economic impacts of gross human rights violations – the “government’s exclusionary economic policies and practices in the distribution of public jobs and services inflicted suffering on huge sections of society at different historical moments” (TJRC vol. 1 2013: xv), with corruption in turn linked to everything from violent state security forces to poor health and education services.

In terms of spatial inequalities, the commission found that northern Kenya – taken to consist of former North Eastern, Upper Eastern and North Rift Valley provinces – together with former Coast, Nyanza and Western provinces suffered particularly harsh economic marginalisation as a result of biased or indifferent state policies. However, the commission also recognised how even residents of regions that were not identified as economically marginalised – namely, former Central, Nairobi, South Rift Valley, and Lower Eastern provinces – considered “themselves marginalised at one time or another” (TJRC vol. 1 2013: xv). The implication was that no single province had escaped economic marginalisation, with hardships often passed on to subsequent generations through a cycle of limited education and employment opportunities.

Women, minority groups and indigenous people were also found to have suffered state-sanctioned discrimination. In summary, minority and indigenous peoples were found to “have suffered gross violations of human rights on account of their membership in these communities” (TJRC vol. 2C 2013: 281). Women were found to have “suffered unspeakable and terrible atrocities … in the majority of cases … for no other reason than that they are of the female gender” (TJRC vol. 2C 2013: 151) and children were found to have been “subjected to untold and unspeakable atrocities” (TJRC vol. 4 2013: vii).

However, while the Commission suggested that most (if not all) Kenyans are victims of some injustice, it did not suggest that all Kenyans suffered, or continue to suffer, equally. On the contrary, some individuals were deemed to have suffered more severe harm or multiple injustices, while some groups were presented as having suffered more than others. For example, a minority were found to have suffered direct bodily integrity violations at the hands of state operatives, while, overall, women were said to have suffered more than men, and some regions or ethnic groups to have suffered more than others.

The Commission was “not just interested in what happened…. [but] in why things happened the way they did, what was their impact and who was responsible” (TJRC vol. 1 2013: 43). Regarding the why and the impact, the report is of mixed quality, but it is in establishing the who that the TJRC had the least success. Instead, the report details how the Commission met a wall of silence, denial and justifications. At the same time, the Commission found that the state had historically “covered-up or downplayed violations committed against its own citizens, especially those committed by state security agencies” and had “demonstrated no genuine commitment to investigate and punish atrocities and violations committed by its agents against innocent citizens” (TJRC vol. 4 2013: 10).

The commission concluded that the underlying causes of violations and contributing factors were complex and included centralised power, a culture of impunity, inter-ethnic competition, uneven development, under-employment and patriarchy.

These findings informed wide-ranging recommendations that included further investigations, lustration and prosecution of those allegedly involved in assassinations, massacres, land grabs and so forth. It also included specific apologies by the head of state for various atrocities suffered – from the torture and unlawful detention of political dissidents to acts of sexual violence committed by state security agencies during operations and periods of violence, and the state’s sanction of discrimination against women.

The report also called for the implementation of recommendations from previous commissions of inquiry, the fast-tracking of ongoing reforms of state institutions, such as the security services and judiciary, and the enactment of key pieces of legislation.

It also set out extensive guidelines for individual, collective and symbolic reparations. These included a framework for individual compensation, development policies to address the historic marginalisation of certain regions, and the establishment of public memorials to commemorate particular places, events and people.

Finally, the commission recognised how the recommendations of earlier truth commissions and commissions of inquiry had largely been ignored, stressed the mandatory nature of the commission’s recommendations, and set out a clear timeline for their implementation together with detailed guidelines for an implementation and monitoring mechanism.

The report and recommendations are thus wide-ranging, and their dissemination and implementation was always going to be a problem. However, the collective decision of members of parliament to change the Act in 2013 and their failure to discuss the report to date is – at least to me – a further injustice that marks Kenya’s history.

 

A full copy of the TJRC report as well as transcripts of many of the hearings can be found online courtesy of Prof. Ron Slye – one of the TJRC commissioners. Parts of this article draw directly from Gabrielle Lynch’s book, Performances of Injustice: The politics of truth, justice and reconciliation in Kenya (Cambridge University Press, 2018). Gabrielle is a Professor of Comparative Politics at the University of Warwick in the UK.

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Associate Professor of Comparative Politics, University of Warwick. Research focus on Kenyan politics.

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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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