A few years ago, in my Monday column in the Daily Nation, I explained why I was not among the millions of Kenyans who are on Facebook. I told my readers that the main reason I had not joined Facebook was because I wanted to keep my private life private.
I said that Facebook allows users to connect and “make friends” with dozens, if not hundreds, of people they would not normally interact with in daily life, which would not be such a frightening prospect if those you interacted with were people you trusted with all your heart. But because Facebook is an equal opportunity friendship-maker, the “friends” you make on the social networking platform could range from your boss to your plumber. This could affect your career development and your home life in significant ways.
Mark Zuckerberg, the founder of Facebook, believes that by allowing many people to share more of their personal lives with each other, he is helping to create a virtual global community where “people stay in touch and maintain empathy for each other.” In other words, he believes he is creating a more caring world, where transparency and openness are the modus operandi and where there are no secrets.
However, critics have argued that instead of connecting people in meaningful ways, Facebook actually isolates people, who spend more time online rather than doing things that strengthen relationships, such as talking to each other or sharing a meal. With an estimated 2.7 billion Facebook users around the world and an estimated 10 million users in Kenya alone, that is a scary scenario that has severe consequences on how people socialise and interact.
But what is even scarier is that Facebook – the company – has been sharing users’ private data with third parties without their knowledge, as has been confirmed by the Cambridge Analytica scandal, which revealed that Facebook users had been manipulated to impact elections in the United States and in Kenya, as well as in the Brexit referendum in the UK. The Cambridge Analytica scandal has shown that no data is safe and that those with ill intentions can use people’s personal information for nefarious objectives or for political gain.
It is not just companies like Cambridge Analytica (which closed shop as a result of the scandal) that are using Facebook data without users’ knowledge or consent. Recently, a local newspaper revealed that in the first half of 2019 the Kenyan government had on five different occasions demanded that Facebook reveal private information about Kenyan users of the social networking site. According to an article published in the Standard (which somehow did not raise any furore in Kenya perhaps because, as one Twitter user commented, we are so used to being abused that we no longer have the energy or motivation to fight back), “the [Kenyan] State refused to use proper legal channels while demanding the information, insisting on the urgency of the demand”.
The Cambridge Analytica scandal has shown that no data is safe and that those with ill intentions can use people’s personal information for nefarious objectives or for political gain.
The article, based on Facebook’s transparency report, further says that Facebook complied with at least one of these demands, but the company did not give details on the nature of the information the Kenyan government had demanded. The government also asked Facebook to preserve the account information of seven users. Apparently, such requests/demands are not unusual; reports indicate that the United States government requested Facebook to provide data on 82,461 users in the first six months of this year, while India made such requests on 33,324 users.
Data privacy and protection: An illusion?
At a time when data privacy and protection are becoming increasingly important, especially in light of revelations that governments and private companies are using social media platforms to manipulate voters, as happened in the Cambridge Analytica case, and in an environment of increasing xenophobia and fear-mongering, this revelation should have been a cause for alarm. But as is with most things in Kenya, news that the government was spying on its citizens and collecting data on them without their knowledge or consent barely elicited a yawn.
The story becomes even more intriguing given that Facebook is facing heavy criticism for violating users’ privacy. In July this year, Facebook was fined $5 billion by the US Federal Trade Commission for violating users’ privacy. The settlement includes several provisions that limit Facebook owner Mark Zuckerberg’s decision-making powers, including the creation of a privacy committee on Facebook’s board of directors.
We must also remember that the Jubilee government of Uhuru Kenyatta and William Ruto has not been averse to manipulating social media users to win elections. Not only has this government been implicated as a beneficiary of Cambridge Analytica’s social engineering and “psychological warfare” tactics in the 2013 and 2017 elections, but it also employed a gang of bloggers known as “The State House Boys” to bombard Kenyans with propaganda prior to and during the election period.
But as is with most things in Kenya, news that the government was spying on its citizens and collecting data on them without their knowledge or consent barely elicited a yawn.
Ironically, this is the same government that is now going after bloggers through the controversial Kenya Information and Communications (Amendment) Bill that some view as a gagging order on bloggers and social media users – a form of censorship that will severely curtail what and how Kenyans communicate via the Internet.
The Bill says that bloggers will need a licence to operate. Failure to comply with this requirement and to adhere to the standards set by the Communications Authority of Kenya could lead to fines of up to Sh10 million or two years in prison. Offences include “degrading” and “intimidating” recipients/readers. This leaves the door wide open for politicians and others to charge bloggers with all manner of offences just because they do not like what they have to say about them. Columnists, cartoonists, writers and even photographers could be “criminalised” on spurious grounds.
Huduma Namba and commercial interests
Ironically, while this Bill is being debated, Parliament has finally woken up to the fact that privacy is a right guaranteed by the Kenyan Constitution. A few days before Kenyans learnt that the government was spying on its citizens through Facebook, President Uhuru Kenyatta approved legislation that complies with the European Union’s General Data Protection Regulation. The Data Protection Bill, 2019, which came into force in mid-November this year, prevents governments and corporations from sharing an individual’s personal data without the consent of the owner of the data. Personal data is defined as information relating to a person’s race, ethnicity, gender, marital status, educational background, medical condition, criminal history and financial transactions, among others. (Note: Some data, such as a person’s credit rating, though protected by privacy laws in Kenya and in other countries, are still easily accessible to interested parties.)
A Data Protection Commissioner will also be appointed to ensure that the law is enforced. The Commissioner will not only receive complaints about data privacy violations but will also have the power to investigate breaches of privacy and to impose fines. However, the Data Protection Bill also says that this law will not apply to personal data collected for the purposes of national security or in the public interest.
This law is viewed as critical to ensuring that data is not abused by third parties and is seen as a necessary and important step to increase investor confidence in Kenya and to regulate the use of mobile phone technology and digital apps, which are increasingly becoming the targets of predatory business and corporate interests.
The timing of the law is, however, interesting. It comes into force at precisely the time when the government is being criticised by some for implementing the National Integrated Identity Management System – better known as Huduma Namba – which many view as a surveillance tool modelled on the Chinese “social credit” system, where citizens gain points for “good conduct” and lose points for “bad behaviour. As I have said before, the idea that you can be denied a service because you cannot identify yourself through a number negates basic constitutional freedoms and rights. Various government mandarins have said that those without a Huduma Namba will be denied government services, including obtaining a Kenya Revenue Authority Personal Identification Number (PIN).
Critics have also raised privacy concerns with regard to Huduma Namba, which is perhaps why the Data Protection Bill was passed in a hurry – to reassure Kenyans that their personal biometric data is safe and that government institutions have perfected the art of making digital technology secure. However, as has been witnessed in the recent past, laws in Kenya are not sufficient to protect Kenyans from electoral or other types of fraud and invasions of privacy.
For instance, Kenya’s electoral body, the Independent Electoral and Boundaries and Commission, has proved to be completely inept (or deliberately malicious) in using technology, as demonstrated during the 2013 and 2017 elections when the biometric digital systems for voting either failed or malfunctioned. Apart from questions regarding the procurement of the technology, and whether kickbacks were involved, Kenyans watched in horror as the electoral body fumbled through the election results, even claiming that several voting stations could not electronically transmit the election results. Almost all attempts by this so-called “digital” government to introduce computerised systems in government, ostensibly to reduce corruption and to streamline service delivery, have also failed miserably; in fact, corruption has reached unprecedented levels. It is now an accepted fact that the introduction of the Integrated Financial Management Information System (IFMIS) in government procurement led to the disappearance and theft of billions of shillings from state coffers. If IFMIS can be so easily manipulated by government officials, then how easy will it be to hack or manipulate the Huduma Namba and other data collection systems?
There are also strong rumours that the National Hospital Insurance Fund (NHIF) is being routinely robbed by unscrupulous medical officers and NHIF employees. Kenya Power, the country’s only electricity company, has also been accused of stealing from customers by sending them fictitious and inflated bills. All this is possible because employees have access to subscriber/customer data that they can easily manipulate. In other words, no Kenyan is safe from government bodies that provide a service at taxpayers’ expense – you will either be denied the service or will be robbed. –.
Citizens or borrowers? The debt trap
But protecting people’s privacy in order to comply with the Constitution may not be the primary motive of the data protection bill. As David Ndii has suggested in a recent article, the Huduma Namba is not so much a personal identity tool for Kenyan citizens as it is a credit facility that ensures that every Kenyan is a potential “customer” for micro-credit services, and which has the potential to place every adult Kenyan on a borrowing treadmill that will benefit banks and businesses associated with the Kenyatta family.
The scheme could have severe adverse effects on citizens/customers/borrowers who risk getting a negative credit rating, and thus becoming criminalised, not for “bad behaviour” as the Chinese would define it, but for not paying back a loan on time. Remember, unlike a normal credit card, the customers –Kenyan citizens – have not been given a choice whether or not to apply for the card – the government has deemed it mandatory for everyone.
Given the high standards set by international credit card companies on issues such as customer privacy and data protection, it is possible that the Data Protection Bill was a means to make the Huduma Namba (and its local and international commercial partners) compliant with international norms and standards, thus giving the illusion that, unlike rogue betting companies or greedy loan sharks, the Huduma Namba is a respectable and legitimate way of borrowing money.
If IFMIS can be so easily manipulated by government officials, then how easy will it be to hack or manipulate the Huduma Namba and other data collection systems?
The question one must ask is: if the Huduma Namba is essentially a credit card, what business is it of the government to impose credit cards on people who can barely make ends meet, thanks to the same government’s economic policy failures? For the government and its commercial partners to make money from hapless Kenyan borrowers is not only unethical, but raises questions about whether – like the subprime mortgage crisis in America where the US government’s housing agencies encouraged low-income people to buy houses even though they did not have the means to pay the mortgage – this scheme could lead to the collapse of an economy that is already in the doldrums.
Coupled with the “Affordable Housing” pillar of the Jubilee government – which is based on the erroneous premise that a majority of low-income people in the country are eager to own apartments (a notion I refute in this article), I see many Kenyans losing their money and their property because the government has encouraged them to take loans they cannot afford. This government has already set the country on a path to unprecedented and unsustainable debt. Now it wants every Kenyan to become a reckless borrower.
The problem is that, unlike the government, individuals cannot rely on taxpayers or a second credit facility to get them out of a debt trap. Families in the United States who lost their homes during the subprime mortgage crisis have still not recovered, despite President Barack Obama’s efforts to avert a financial crisis in 2008 – a lesson this government is unwilling or unable to process but which signals doom for the many Kenyans who are being made to believe that taking a loan, no matter how risky, is the easiest way out of poverty.
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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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