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People Power in the 2010 Constitution: A Reality or an Illusion?

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The 2010 Constitution of Kenya is among the most progressive constitutions in the world that guarantees basic human rights and gives citizens enormous powers to determine how they are to be governed. Yet, ten years after its promulgation, the Constitution has done little to alter the status quo, thanks to a political leadership that is committed to subverting the Constitution’s core values and principles.

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“Public participation calls for the appreciation by State, Government and all stakeholders implicated in this appeal that the Kenyan citizenry is adult enough to understand what its rights are under Article 34 [of the Constitution]. In the cases of establishment, licensing, promotion and protection of media freedom, public participation ensures that private “sweet heart” deals, secret contracting processes, skewed sharing of benefits-generally a contract and investment regime enveloped in non-disclosure, do not happen. Thus, threats to both political stability and sustainable development are nipped in the bud by public participation. Indeed, if they did the word and spirit of the Constitution would be both subverted.Communications Commission of Kenya & 5 Others v Royal Media Services Limited & Others [2015] eKLR, para 381.

The role of constitutions and law in social transformation 

The role of law in social transformation has a long genealogy when posed as a question about whether law and the courts can advance, stagnate or impede transformation and revolution. This question, once the source of serious and continuous jurisprudential debates, has acquired a consensus that law, indeed, has a role to play in societal transformation and revolution. This multi-disciplinary consensus is shared by lawyers, economists, policymakers, politicians, international organisations, and think tanks.

The debate on the new phenomenon of transformative constitutionalism has been both enriched and transformed by this consensus. The very idea of a transformative constitution (such as those of India, Colombia, South Africa, Ecuador, Venezuela, Bolivia, and Kenya) is the idea that the constitutional superstructure is embedded in a theory that it will be an instrument for the transformation of society rather than a historical, economic and socio-political pact to preserve the status quo as the earlier constitutions did. Constitutions and law have a class content. The superstructure does not merely conform to the economic base passively.

Issues of base and superstructure need creative and undogmatic re-analyses given the changing contexts and circumstance of the world. It should be argued that the dialectical relationship between the base and superstructure will need creativity, innovation, lack of dogma in the varying economic, political, social, ideological, cultural, and intellectual contexts without losing sight of the original revolutionary messages and expected revolutionary outcomes. This approach takes into account the limitations of transformative constitutions and constitutionalism as a basis for understanding revolutionary constitutions of the past, such as the Bolshevik, Chinese, Cuban, and Vietnamese ones. Meanwhile, transformative constitutions are about mitigating the status quo that societies find unsustainable and unacceptable.

While still on the issue of relations between base and superstructure, the constitution and law are part of the superstructure as is politics. The base determines the long movement of history. Most African states were governed by laws that did not recognise Africans as citizens. In my view, these vital aspects of the superstructure are significant forces in the short to immediate term. I would add, however, that they play either a progressive or a retrogressive role depending on the way they are used to fight the base (in our day and age, imperialism) or reinforce it. Whether these aspects play a progressive role, whether they have transformative potential depends on who uses them and how. And this depends mainly on the quality of political leadership and authentic opposition in all countries.

Judicial leadership is integrated in such leadership. I believe progressive forces in the Judiciary can use the constitution and law in moving society towards fundamental transformation. They will do that by developing progressive jurisprudence out of the constitution and the law, accepting that judicial officers do politics, and that their institution, the judiciary, is an institutional political actor. 

We, the people of Kenya

Modern transformative constitutions – under which the Kenyan one falls – address two fundamentally critical pillars that anchor societal development: the equitable distribution and use of political power and land and natural resources of the country. The two pillars are the basis of survival, promise of democracy, equity, and prosperity in a nation. They impact the struggles for freedom, emancipation, struggles against exploitation, domination and oppression. These struggles are internal as well as external. It is these struggles that capture, going forward, a new nation, and a new planet that is peaceful, non-militaristic, free, just, equitable, ecologically safe, prosperous, and in my books, socialist. It is only the people the world over who can make this vision a reality. The 2010 Constitution puts Kenyans in this trajectory of struggle. It seeks to mitigate the status quo that is unacceptable and unsustainable while becoming a basis for further struggles towards freedom and emancipation.

The constitution-making process that birthed the 2010 Constitution was people-driven. The consultations with the Kenyan people were robust. The debates on whether the people’s will was reflected in the many drafts that were considered was an extension of the struggle to ultimately guarantee that the Constitution was a people’s constitution. Once in place, the implementation of the Constitution triggered yet another struggle in the constitution-making process. The Constitution Implementing Constitution, Parliament, and courts became central in the struggle to breathe life into the new Constitution. That struggle still continues.

There can be no doubt in the provisions of the 2010 Constitution about the centrality of the Kenyan people in its implementation. In the Preamble it is We, the people of Kenya that ADOPT, ENACT and give this Constitution to ourselves and to our future generations. Chapter One of the Constitution is appropriately titled Sovereignty of the People and Supremacy of the Constitution. Article 1 (1) & (2), respectively, provide that “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution” and “The people may exercise their sovereign power either directly or through their democratically elected representatives.”

The constitution-making process that birthed the 2010 Constitution was people-driven. The consultations with the Kenyan people were robust.

Kenyans are further called upon under Article 3 (1) “to respect, uphold and defend this Constitution.” Although English and Kiswahili are the official languages of the Republic of Kenya under Article 7, the State is obligated to “promote the development and use of indigenous languages, Kenyan Sign language, Braille and other communication formats and technologies accessible to persons with disabilities.” Under Article 10, participation of the people is one of the national values and principles of governance. In reinforcing this value, other relevant values are patriotism, national unity, human dignity, democracy, equity, human rights, rule of law, non-discrimination, protection of the marginalised, integrity, transparency, accountability, and sustainable development. Under Article 11 the “Constitution recognises culture as the foundation of the nation and the cumulative civilization of the Kenyan people and nation.”

The Kenyan Bill of Rights, under Chapter 4, is perhaps the most progressive in the world. It gives Kenyans the promotion and protection of their whole gamut of political, civil, economic, social, and cultural rights. (However, it must be noted that the Bill of Rights has its limitations. It is not clear on the protection of gay rights. Land rights are still based on the protection of private property under Article 40. Although there is a category of community land, the fundamental land regime is one that protects land as a commodity, making the ownership and use of land the root cause of poverty and gross inequalities.) Article 22 (1) in the Bill of Rights states “Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or threatened.” Article 258 (1) provides that “Every person has the right to institute court proceedings claiming that this Constitution has been contravened or is threatened with contravention. Article 22 (2) and Article 258 (2) decree robust sovereignty of Kenyans as individuals and in the public interest.

All these provisions are the basis of Kenyan citizens and institutions developing robust jurisprudence of public interest litigation (PIL) in the protection of the Bill of Rights, in particular, and the Constitution in general. These provisions give Kenyans the responsibility to protect the Constitution from subversion by Parliament, state institutions, the executive, and/or external forces that could, through investment agreements or military pacts, subvert our Constitution. (We need to glorify the work of Katiba Institute and Okoiti Omtata for breathing life into these provisions. Katiba Institute works with individuals or social movements to take up cases in their interest. So does, Omtata. One hopes that going forward the Law Society of Kenya will take up serious and robust public interest litigation, as provided under the Law Society Act.)

The sovereign power of the Kenyan people is delegated or donated to Parliament (whose members the Constitution decrees be individuals of integrity). The Constitution also provides for how political parties are to mobilise people. Article 81 provides for “free and fair” elections that deliver electoral justice to Kenyans. So, the “legislative authority of the Republic is derived from the people” under Article 94. So are executive and judicial authorities “derived from the people” under Articles 129 and 159, respectively.

The sovereign power of the Kenyan people is delegated or donated to Parliament (whose members the Constitution decrees be individuals of integrity). The Constitution also provides for how political parties are to mobilise people.

All the structures under the national and county executive, such as finance and security, also derive their authority from the people of Kenya. Commissions created under Chapter 15 have one of their objects “to protect the sovereignty of the people” of Kenya. The peoples’ sovereignty reigns supreme in matters of amending the Constitution under Articles 255-257. Article 259 provides for a theory of interpreting the Constitution that is pro-people and cognisant of the people’s economic, social, cultural, spiritual, and political struggles that underpin the word and spirit of the Constitution.

Reality or lip service? 

I would like to comment on two case studies, namely, the Makueni County Experiment and the current political initiative called the Building Bridges Initiative (BBI). In my view, the former case study breathes life into the sovereignty of the people while in the latter case the political leadership subverts that same sovereignty.

Case Study 1: The Makueni County Experiment

There is no doubt that the Makueni County Experiment in the implementation of the 2010 Constitution has caught the imagination politicians, public intellectuals, civil society groups, and foreign interests represented by the diplomatic missions in Nairobi. There has been consistent bench-marking to Makueni by governors of other counties. The media could have participated robustly in these bench-marking trips, but that has not been the case.

Makueni is, indeed, a beacon of progress in the implementation of the Constitution. The robust public participation and civic education in matters of county governance are a reflection of the reality of the sovereignty of the people. Makueni County has a county agenda discussed right from the grassroots in a six-tier consultation process. In matters of governance, Makueni County has made a reality of the constitutional requirement of the people’s authority. The county has donated its executive political power to the grassroots in the County Agenda. The consensus reached in the Agenda cannot be varied by the County Assembly or the leadership of the County Government. Monitoring of budgets and the implementation of the Agenda is subjected to robust public participation.

The political leadership of Makueni County is known to be incorruptible. It accounts in a transparent manner the resources entrusted to it by people. Some key projects have become the talk of the country: universal healthcare; scholarships; factories; and other projects in compliance with the county agenda such as the mango and milk plants; and innovative research on education as a public good. Partnerships with foreign interests have been on the basis of the vision of the county, a good precedent in negotiation after the county clearly knows its interests.

It does not surprise me that the Makueni Experiment has not been glorified by the political leadership in this country. Recognising beacons of incorruptibility, progress, public participation, and transparent accountability of resources is the last project the political leadership wishes to see.

Makueni County’s narratives of incorruptibility, good governance, public participation, donating executive power of the county to the grassroots, implementing a county agenda borne out of people’s participation, and allowing monitoring and policing of county budgets and projects should have been the case study the BBI engaged with seriously.

Case Study 2: The Presidential Taskforce on Building Bridges to Unity Advisory (popularly known as BBI)

We must undertake a major consultation, in the form of an inclusive national conversation culminating in a major conference with the single aim of producing a vision of a unique Kenyan civilisation 100 years from today.”BBI report, page 100. 

“If BBI has failed to unite 6 Kenyans [ethnic barons], [namely] Raila, Ruto, Uhuru, Kalonzo, Mudavadi, and Wetangula, how can it unite 47 million Kenyans?” – Post on Twitter

On page 7 of its report, the BBI Taskforce states who it interviewed:

The Taskforce heard from more than 400 elected leaders past and present; prominent local voices from the community; and young people who added their voices to citizens in the Counties. This included more than 35 Governors and their Deputies as well as dozens of Senators, MPs, and MCAs in the Counties and in Nairobi. Submissions were given by 123 individuals representing major institutions, including constitutional bodies and major stakeholders in the public and private sectors; 261 individuals and organisations who sent memoranda via email; and 755 citizens who offered handwritten submissions during public forums in the Counties. Kenyans made their views heard as individual citizens, institutionally, and based on diverse interests and experiences. This report reflects their views and insights.” 

The BBI, given the sample of consultations above, has the audacity to shamelessly announce from the rooftops that the “Kenyan people have spoken!”

After reading pages 7-17 and 100-126 of the BBI report, I have only come up with burning questions, all involving the implementation of the Constitution. It seems to me that this effort should have been restricted to the political leadership to account for the failures that the report narrates in the nine issues it focuses on. The political leadership could have been asked to give reasons for:

  • Their continued politics of division and disunity;
  • Their failure to implement national ethos in the 2010 Constitution;
  • Their failure to guarantee the independence of national institutions;
  • Their failure on the so-called war on corruption;
  • The continuing gross violations of human rights of the Kenyan people by state authorities;
  • Their failure to restructure the colonial provincial administration system, as decreed by the Constitution, and to reinforce county governance;
  • Divisive, corrupt, unfree, not peaceful, unacceptable elections;
  • The Executive seeking to claw back constitutional provisions that guarantee the decentralisation and democratisation of the imperial presidency through equitable distribution of political power, land and natural resources of the nation and the defence of devolution;
  • The utter failure of political parties to comply with the provisions of Article 91 of the Constitution on the basic requirements for political parties; and the failure of the government to give capacity to the Registrar of Political Parties to police, monitor, deregister and hold political parties accountable in their obedience of the Constitution;
  • The deliberate subversion of the national value and principle of inclusiveness through political alliances of the “Big Five” communities to the exclusion of all others;
  • The continued wastage and theft of national resources and the failure to implement the many reports of the Auditor-General and other Commissions set to investigate the issue of corruption;
  • Their failure to conduct forensic lifestyle audits that were to start with the President and his Deputy;
  • Not entrenching of Article 43 on economic and social rights in political platforms and national policy;
  • Their failure to reduce the mounting sovereign national debt and its disastrous economic, social, and political consequences;
  • Their failure to submit development funds to the counties and to audit the effectiveness of the 15% currently given to the counties;
  • Their failure to secure the lives and properties of the people of Kenya;
  • The impotency of the Summit of the 48 governments;
  • Their failure to make healthcare, housing, water, education, food and the environment public goods, as envisaged by Article 43 of the Constitution; and
  • Their failure to transparently account for the authority that the people of Kenya donated to the political leadership.

The Taskforce could have focused on good practices (apparently there were not many) in the implementation of the Constitution. The Taskforce paid lip service to public participation, as is clear from the report.

It does not surprise me that the Makueni Experiment has not been glorified by the political leadership in this country. Recognising beacons of incorruptibility, progress, public participation, and transparent accountability of resources is the last project the political leadership wishes to see.

BBI reminds me of the Saitoti Committee tasked with finding out if Kenyans wanted multiparty democracy. Although the response from the people was in the affirmative, the Committee chose to report to President Moi that the people did not want political pluralism. Here the BBI did not ask the political leadership the reasons for not implementing the Constitution, but goes on to give recommendations that beg that question. The BBI put the cart before the horse. The BBI is a monumental political distraction and an abdication of the national interest for the interests of the ruling Kenyan elite. The BBI provides a golden political opportunity for those who are agitating for an alternative political leadership in Kenya to birth, nurture and consolidate it.

Conclusion 

One county governor told me once that the 2010 Constitution gave birth to a beautiful healthy baby whose protection and security was entrusted to a ruling Kenyan elite that was a master in trafficking children’s body parts! A great metaphor that I believe is as pessimistic as it is true.

BBI reminds me of the Saitoti Committee tasked with finding out if Kenyans wanted multiparty democracy. Although the response from the people was in the affirmative, the Committee chose to report to President Moi that the people did not want political pluralism.

However, the metaphor underestimates the resistance of the Kenyan people in the protection of their baby. While the Kenyan elite continues to pay lip service to the implementation of the Constitution, the people of Kenya resist this elite and focus on making the 2010 Constitution a reality in its economic, social, cultural, political, and ideological vision. It mitigates the current status quo in Kenya that the people find unsustainable and unacceptable.

Implementing the 2010 Constitution can be the basis – if given the right political party or environment – of our imagination and thinking of a Kenyan society that is just, free, peaceful, non-militaristic, ecologically safe, equitable, prosperous, and socialist.

This lecture by the former Chief Justice, Dr. Willy Mutunga, was delivered on 10 February 2020 to post-graduate students at The East Africa Institute of the Aga Khan University (EAI) in partnership with IGLUS (iglus.org)

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

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Tackling Corona: The Need for a People-Driven Response

African governments need to adopt a “whole-of-society approach” to successfully face the threat posed by COVID-19. They need to recognise that involving non-governmental actors in the formulation, as well as in the implementation, of policies to address the pandemic, need not be perceived as a threat to their own legitimacy.

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Tackling Corona: The Need for a People-Driven Response
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The scenes of police viciously assaulting citizens while enforcing a nighttime curfew, as well the death by suicide of a South African woman after being forced into a deplorable government quarantine facility, have exposed the brutal face of Kenya’s coercive response to the coronavirus pandemic. While many have condemned the incidents, some have also felt that coercion is necessary given the extreme threat posed by the virus, the need for urgent action and the failure of the citizens to comply with the government’s directives. There is no time to debate the response, goes the argument. There is only time to act to save lives.

Yet there is a grave flaw at the heart of this argument. These very factors are what make it necessary that there is more, not less, public involvement. The threat being to the whole of society, the response needs to involve the whole of society. Trying to move fast without having a cooperative public in tow is a recipe for failure, as the Kenyan government is learning. And the way to get a cooperative public as well as mobilise society is to engage with the people, not just order them about.

“Epidemics are tests of social and political systems,” writes the Zimbabwean academic and Associate Professor of African Politics at the University of Oxford, Simukai Chigudu, in a fascinating article for the online platform, Africa Is A Country. Citing his book, The Political Life of an Epidemic: Cholera, Crisis and Citizenship in Zimbabwe, which looked into the roots of the 2008 cholera outbreak in his country, he notes that it is the “political, economic and social processes that…shape the trajectory of [an] epidemic”, not just the biological properties of the virus or bacterium involved.

This is not to say that the actions of governments are not important. The trajectory and the evolution of the pandemic so far have been largely dictated by the actions of states. The thousands of lives it has so far claimed are not evenly distributed globally, but rather concentrated in countries that for a variety of reasons either didn’t take the pandemic seriously or were slow to react to it. In a very real sense, it is not just the virus that is killing people; people are also dying from state inaction, incompetence and malfeasance.

The legacy of colonialism

Similarly, as the virus menaces Africa, it has been the actions of African governments – past and present – that have so far determined how the pandemic is unfolding on the continent. When fighting the disease, a crucial constraint for many African societies is the near universal failure to address the legacy of colonialism. In fact, as Prof Chigudu explains in relation to 21st century Zimbabwe, “the long-term factors that led to the cholera outbreak can be traced as far back as the late 19th century when Salisbury [today known as Harare] was founded as the administrative and political capital of Southern Rhodesia [the predecessor state of what is now Zimbabwe].”

In a very real sense, it is not just the virus that is killing people; people are also dying from state inaction, incompetence and malfeasance.

He goes on to write that rather than undoing the discriminatory nature of provision of public facilities, “colonial era by-laws, plans, and statutes largely remained in place, indicating the apparent tension between overturning the racial and socio-economic segregation of Rhodesian city planning and maintaining an inherited sense of modernity and orderliness in urban space”.

This experience will be familiar to many across the continent where, in the words of one of Kenya’s politicians speaking in Parliament in 1966, “Today we have a black man’s Government, and the black man’s Government administers exactly the same regulations, rigorously, as the colonial administration used to do”.

The persistence of colonial states and their twin logics of authoritarian exploitation and classist exclusion means that African governments begin with a deficit of public trust, as well as diminished capacity to implement policies. Just three years ago, Kenya was jailing doctors’ representatives for going on strike to demand a pay rise and improvements to services in public hospitals.

Corruption – another gift of colonialism – has focused attention on vanity projects that provide opportunities for looting, rather than on investments in basic health services. The result is high-end, expensive machines lying idle in hospitals that lack even basic amenities. The entire country, for example, only has around 400 isolation beds, and 155 intensive care unit beds for a population of over 48 million people.

The authoritarian and exclusionist streaks are also evident in the manner in which African governments are currently responding. In Kenya, rather than implementing a holistic approach that would mobilise all communities and civil society, the government has opted for a China-style top-down, dictatorial approach, one that decades of hollowing out of the state has been difficult to impose. Prominent activist Jerotich Seii has noted the “‘elite gaze’ that deploys a language of enforcement”. David Ndii, one of the country’s top economists and public intellectuals, has similarly decried the consequences of what he describes as a “boneheaded securocratic approach to a complex emergency”.

A holistic approach

Yet this need not be the case. Kenya has a long history of indigenous not‐for‐profit organisations, self-help societies and community-based organisations that it could leverage to win consent and mobilise society. In fact, in many communities, NGOs have become surrogates for the government, offering services that the state was either unable or unwilling to provide. They have even managed to penetrate into policy- and decision-making levels.

In Kenya, rather than implementing a holistic approach that would mobilise all communities and civil society, the government has opted for a China-style top-down, dictatorial approach…

As Prof Jennifer Brass noted in her PhD thesis a decade ago, “Contrary to both normative arguments that government should ‘steer’ the ship of state (make policy) while private actors ‘row’ (implement policy), and the belief that government is eroding or becoming irrelevant to the governance process, this dissertation shows that NGOs are now joining public actors and agencies at many levels in decision and policy making regarding service provision.”

Sadly, however, there is little evidence that the Kenyan government is doing much to incorporate the expertise and experience of NGOs and other civil society actors into its planning for COVID-19. When President Uhuru Kenyatta established the 21-member National Emergency Response Committee on Coronavirus at the end of February, there was no one from outside of government included in it. In this, the President went against his own National Contingency Plan which recommended the establishment of a National Public Health Emergency Steering Committee to “provide policy, strategic directions” which would include heads of “responding NGOs”.

Sadly, however, there is little evidence that the Kenyan government is doing much to incorporate the expertise and experience of NGOs and other civil society actors into its planning for COVID-19.

Perhaps the Kenya government’s reluctance to engage with civil society organisations should not come as a surprise. After all, this is a government that for the best part of the last decade has made the demonization of civil society (which its mouthpieces on social media happily branded “evil society”) a cornerstone of its propaganda efforts. Still, it is clear that the state alone cannot address this crisis.

Non-governmental actors, including professional associations, churches and volunteer, community and civil society organisations, will need to be involved in the “whole-of-society approach” that the World Health Organisation (WHO) says is required to successfully face the threat posed by COVID-19. And not just as “rowers”. Across the continent, governments will need to urgently recognise that involving others in the formulation, as well as in the implementation, of policy need not be perceived as a threat to their own legitimacy. As Prof Brass writes, “Governance is not the removal of government, but the addition and acceptance of other actors, including NGOs, in the steering process.”

How effective are lockdowns?

The absence of non-governmental actors at the decision-making table may also be manifesting in the choices that African countries are making. For example, many have opted to go the way of China and other (though by no means all) European countries by imposing “lockdowns” – shuttering factories, businesses and markets; banning mass events from church services to political rallies; and forcing people to stay at home or imposing stringent restrictions on their movement – in an attempt to curtail the rate of spread of the disease and ensure their already fragile health systems are not overwhelmed. Beginning with Rwanda, the lockdowns have swept the continent, affecting economies large and small, from Nigeria to Uganda. In addition, by the end of March, nearly all countries had some form of travel restriction, with more than half imposing full border closures.

However, in an article for The Conversation, Prof Alex Broadbent and Prof Benjamin Smart argue that a one-size-fits-all approach may have lethal consequences for Africa. They note that the “the major components of the recommended public health measures – social distancing and hygiene – are extremely difficult to implement effectively in much of Africa” and that the net effect of lockdowns “may thus be to prevent people from working, without actually achieving the distancing that would slow the spread of the virus”. They also question the value of “flattening the curve” in a scenario where at the best of times public healthcare is inaccessible to a huge proportion of the population.

Similarly, in an interview with Africa Report, John Nkengasong, the director of the Africa Centre for Disease Control and Prevention, which is part of the African Union, also pointed out that lockdowns are not only difficult to sustain but would also “lead to other consequences, such as shortages of food, medicine and other basic supplies”. He also said that the shutdown of air travel and closing of borders across the continent was making it more difficult to coordinate the distribution of desperately needed medical supplies and equipment. Making much the same point on the Kenyan news programme Punchline, Dr Mary Stephens of WHO said that blanket travel bans and border closures would prevent African countries from accessing external medical experts needed to plug gaps in their health systems.

The resort to force by governments across the continent to counter the resistance of their populations to such measures speaks to the lack of a social consensus for the necessity of such measures. It is the poor, for the most part, who will bear the pain of the lockdowns, especially the many working in the informal sector who cannot afford to stay at home for a day, let alone for weeks. Yet they are almost completely excluded from the decision-making table.

Similarly, in an interview with Africa Report, John Nkengasong…pointed out that lockdowns are not only difficult to sustain but would also “lead to other consequences, such as shortages of food, medicine and other basic supplies”.

If they were allowed to have a say, perhaps they would point out that there are other options and examples that African countries could look to. In the Far East, for example, countries and cities like Japan, South Korea as well as Singapore, Hong Kong and Taiwan, while not yet out of the woods, have managed to tackle the pandemic within their borders while largely avoiding the crippling lockdowns.

Nobel laureate Amartya Sen famously declared that “no famine has ever taken place in the history of the world in a functioning democracy”. He noted that democratic governments, “facing elections and criticisms from opposition parties and independent newspapers”, would be compelled to take decisions to avert disaster.

Democracy may not be such a sure shield against epidemics, but it is clear that, at least on the African continent, its absence, and the prevalence of governments used to wielding clubs and guns against their citizens rather than listening to them, may be turning a looming disaster into a catastrophe.

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Slaying the Giant: An Epidemiologist’s Perspective on How Kenya Can Tackle COVID-19

There hasn’t been a pandemic control that has succeeded without social capital. How Kenya and Africa will deal with this pandemic will squarely depend on the strength, resilience and adaptability of our social capital to weather the storm.

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Slaying the Virus: An Epidemiologist’s Perspective on How Kenya Can Tackle COVID-19
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Epidemiologists measure how a disease spreads through populations using the basic reproduction number, otherwise known as R0 (pronounced “R naught”). Typical seasonal flu has a reproductive number of 1.2, while that of COVID-19 is reported to be approximately 2.5.

R = Reproductive number: How many people a given patient is likely to infect. If the reproductive number is greater than one (R>1), each case on average is transmitting it to at least one other person. The epidemic will therefore increase. Reproductive number is affected by factors including but not limited to population density, environment, age and immunity.

Typical seasonal flu has a reproductive number of 1.2; Spanish flu has a reproductive number of 2-3, while COVID-19 is reported to be approximately 2.5.

From a policy planning perspective, it offers a very clear objective: Reduce the reproductive number to less than one (R<1)

D= Duration: How long someone is infectious. If someone is infectious twice as long, then that’s twice as long as they can spread the infection. For COVID-19, people are infectious for up to 21 days. This can usually be reduced by treatment but there is currently no approved treatment for COVID-19.

O= Opportunity: The number of contacts of the infected person during the duration of the infection. If people are isolated (no contacts), then community spread does not occur or is minimised. This is achieved through social distancing.

T= Transmission Probability: The chance an infection is spread to a contact, hence the need to eliminate physical contact and hand washing.

S= Susceptibility: The chance a contact will develop the infection and become infectious themselves. We are all susceptible to COVID-19. Susceptibility is usually taken care of by vaccines, which we do not have for COVID-19.

Another important number for understanding diseases is the Case Fatality Rate (CFR): What percentage of people who have a disease die from it? On one extreme, we have rabies, which has a 99 percent fatality rate if untreated. On the other hand, is the common cold, which has a relatively high reproductive number but is almost never fatal. At the time of writing this, the crude case fatality rate for COVID-19 was 5.3 percent. I am calling it crude because thus far, testing has been selective. If testing protocols were to be expanded, this value will probably drop to 1 percent or less. But we will, however, work with the worst-case scenario for now.

In the case of the COVID-19, exponential growth will occur in the disease rate in humans as long as there is at least one infected person in the population pool, regular contact between infected and uninfected members of the population occurs, and there are large numbers of uninfected potential hosts among the population.

Which brings us to the term ‘doubling time’, which just means in this situation that cases/deaths will double in a given amount of time. Doubling rate in the United States of America has been reported to be three days, while China has managed to spread it out. And if the numbers from China are to be believed, they are now at six days. The longer the doubling time, the better.

One last terminology I will touch on is Herd Immunity, which simply means when a significant part of a population has become immune to a disease agent, its spread stops naturally because they are not enough susceptible people for efficient transmission. For COVID-19, immunity would come through getting the disease, assuming that it confers life-long immunity.

So what strategies do we have?

Do nothing

Based on the data we have from other countries, the reproductive number of COVID-19 is 2.5. That means, the population of people that will be infected to achieve herd Immunity is: 1-1/R0, equal to 60 percent. This translates to more than 28 million Kenyans getting it. Moreover, 80 percent (approximately 22 million people) of the population will have a mild disease or be asymptomatic. Another 14 percent (approximately 4 million people) will be in severe condition and may need hospitalisation, while 6 percent (approximately 1.7 million people) of Kenya’s population will be critical and may need intensive care facilities.

Going by case fatality rate of 5 percent, it means approximately 1.4 million Kenyans will die if we do nothing. I chose to stick with the global case fatality rate of 5 percent because even though we have a youthful population, we grapple significantly with both communicable – AIDS, Tuberculosis, malaria, pneumonia etc., and non-communicable illnesses. Furthermore, a majority of the population lives in squalid conditions and is prone to other competing illnesses. And to add salt to injury, as a country, we are still battling malnutrition and anaemia.

Doubling of new infections in the United States of America is happening every three days. This means the numbers will double ten times in a month. Though we have yet to reach the exponential phase, a quick back-of-the-envelope analysis places Kenya, with its current infection rate at 122, indicates the number of people with COVID-19 will double ten-times one month from today. The numbers will be compounded the longer we do nothing and the effects will be fatal to say the least.

Do something

Since there are no antiviral medications for COVID 19 and no vaccine, we must rely on non-pharmaceutical interventions like social distancing and eliminating physical contact.

The impact of early and widespread social distancing is flattening the curve. The flattening minimises overwhelming the healthcare facilities and their resources, which is good in the short run, but lengthens the duration of the epidemic in the long run. If the health system becomes overwhelmed, the majority of the extra deaths may not be due to coronavirus but to other common diseases and conditions such as heart attacks, strokes, trauma, bleeding, and other such diseases that are not adequately treated.

Too, if large numbers of Kenyans were to get very sick and start flooding into hospitals and health care facilities, our system will undergo a severe stress test. Our health system could be overrun in a very short period of time. Thus, figuring out how to plan for a massive influx of patients is one of the hardest parts of preparing for health emergencies, and it has yet to be adequately dealt with in Kenya.

If large numbers of Kenyans were to get very sick and start flooding into hospitals and health care facilities, our system will undergo a severe stress test. Our health system could be overrun in a very short period of time.

“Surge capacity” management is one of our biggest weaknesses, particularly at a time when we have shortages of health workers, and a weak supply chain management system. The national and county governments have spent very little on health care, choosing to focus on capital expenditure where there is something for them to ‘’eat’. Even in the course of this pandemic, health care workers are being appreciated by word of mouth but are not being protected, risking spreading this to patients, other workers, families as well as the public. The risk of COVID-19 being another nosocomial infection is very high. Indeed, the 3,000 unemployed doctors have yet to be absorbed into the healthcare system to mitigate this crisis, but I digress.

Mitigation

Here the focus is to slow the growth of the epidemic. Instead of having it double every three days, you put interventions in place to slow it down to double every seven days. This will ease the demand for health care services and give you breathing room. Interventions here include hospital isolation of confirmed cases, home isolation of suspect cases, home quarantine of those living in the same household as suspect /confirmed cases, and social distancing of the elderly and others at most risk of severe disease.

This has the potential to reduce infections and deaths by as much as 60 percent, and prevent the economy from collapsing completely the numbers will drop from 28 million infections with no mitigation, to approximately 11.2 million, and 560,000 deaths if we infer to the case fatality rate of 5 percent.

Suppression

With suppression, you want to reduce the reproductive number to below 1, hence stopping transmission. This is what we are doing now. Travel restrictions, social distancing, school closures, curfews, stopping mass gatherings. The only strategy that we haven’t adopted so far is sheltering in place, what people like to refer to as lockdown. The problem with this strategy is that it has enormous economic and social impacts. And as long as we live in a global village, there is a great risk of recrudescence especially when you open the borders. This means you have to maintain the strategies until a vaccine is discovered and you have vaccinated at least 60 percent of the population, or at least until a cure is found. We are probably 6-12 months away from a solution considering how clinical trials are being fast-tracked. There is the option of relaxing the strategies occasionally when the reproductive number is low, but this means you must have a meticulous method of disease surveillance to pick up recrudesce early.

How do we balance public health vs. economic consequences?

The bubonic plague of medieval Europe, the Spanish flu of 1918, SARS, H1N1 Swine flu and other infectious diseases have shaped the political economy of the world and so far, all evidence indicates that COVID-19 will do the same.

We must, now, grapple with philosophical issues such as how much economic value we are willing to lose to save a human life.

As a public health practitioner, I decree that saving life is more important than social and economic effects. I think there must also be a delicate political balance to be considered and policymakers should reflect whether they are doing more harm than good.

When making decisions, policymakers often use what’s called the Value of a Statistical Life (VSL) to set an upper bound on how much you can impose on people in order to save lives. But if policymakers assigned an infinite economic value to each life, they would spare no expense and be fearless in imposing any inconvenience.

Information

At a time when everyone needs better information, from disease modelers and governments, we lack reliable evidence on how many people have been infected with COVID-19. Better information is needed to guide decisions and actions of monumental significance to monitor their impact.

The data collected so far is unreliable. Given the limited testing to date, some deaths and probably the vast majority of infections due to COVID-19 are being missed. We can’t access if we are failing to capture infections by a factor of three or 300.

As a public health practitioner, I decree that saving life is more important than social and economic effects. I think there must also be a delicate political balance to be considered and policymakers should reflect whether they are doing more harm than good.

Too, we don’t know what factors are being modeled. Kenya, for instance, is a diverse country with densely populated counties like Nairobi, and less densely populated like Turkana. A one-size-fits-all model won’t work. The modeling models developed need to be county-specific, and interventions need to be more nuanced and contextual. Of course, the chain of command should remain at the ministry of health but with an aggressive inter-governmental coordination prescribing strategies for each county.

This is the time to fully implement the spirit of the 2010 constitution and bring in the devolved units, as health is a function of counties. It is here that strategies such as how will “sheltering in place” work for pastoralism communities be enforced? What strategies need to be considered for the rural areas where the majority of their populations are the elderly?

The overarching idea is to tailor-make a range of policy mixes suitable for the Kenyan context.

Is Kenya getting right?

Based on the numbers I have shared above; I would say it’s a mixed bag. Social distancing is yielding fruit, however, we need a scientifically determined threshold on when these can be relaxed or re-introduced. Indeed, there must be a robust health surveillance system in place, which has to be county-specific. The success of the ongoing strategies to mitigate community transmission will depend on how Kenyans collectively respond to the plea of physical distancing and hygiene.

Still, we have to do more. First, we are not testing enough. I posit that we should partner with certified private laboratories to scale-up testing. We must acquire testing kits that can be used on Genexpert platforms that were provided by PEPFAR and are available in all counties.

I can’t emphasise enough about testing.

You test, isolate and trace to minimise community spread. Without this, we are swimming blind. Secondly, we are not protecting our health care workers. They are the first-line workers and are at the greatest risk of acquiring COVID-19, transmitting it to other patients, as well as to the community.

Finally, there hasn’t been a pandemic control that has succeeded without social capital. How Kenya and Africa will deal with this pandemic will squarely depend on the strength, resilience and adaptability of our social capital to weather the storm.

Disclaimer: The opinions expressed here belong to the author, and do not purport to reflect the opinions or views of the MOH or other bodies involved in COVID-19 response.

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Controlling COVID-19: Lessons from East Asia

As authorities the world over restrict the movements of their populations, and governments benchmark their responses on the worst affected regions, there are lessons to be learnt from South Korea which has eschewed lockdowns in favour of early detection through mass testing, contact tracing and treatment.

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Controlling COVID-19: Lessons from East Asia
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By the third week of March 2020, the number of COVID-19 deaths in Italy had overtaken the number of deaths in China. Authorities all over the world are restricting the movements of their populations as part of efforts to control the spread of COVID-19.

For the time being, more and more governments are benchmarking their responses on the very worst outbreaks in Wuhan and northern Italy. But lockdowns inevitably have adverse economic impacts, especially for businesses, particularly small ones heavily reliant on continuous turnover. Are there other ways to bring the virus under control without lockdowns?

South Korean lessons?

The Republic of Korea, or South Korea, is one of a handful of mainly East Asian economies that have dramatically reduced the number of COVID-19 cases as well as related deaths. On 29 February 2020, the country saw 909 newly confirmed cases.

By 25 March, the number of newly confirmed cases fell to 100. It has gone from having the second-highest rate of infection globally to eighth place, behind China, Italy, United States, Spain, Germany, Iran and France, all with varying rates of testing.

For now, South Korea has checked the spread of infections. It has managed to slow the spread of COVID-19 without imposing lockdowns, even in its most infected city, Daegu. How have they responded differently to the crisis?

Korean-style pandemic management

The key to South Korea’s response has been mass testing. South Korea has done the most COVID-19 tests by country, with over 300,000 tests as of 20 March 2020, or over 6,000 per million inhabitants. Germany, in second place, had done 167,000 by 15 March 2020, or 2,000 per million.

The infected who show no symptoms (i.e., the asymptomatic) or only have mild symptoms are more likely to transmit the virus to others. As such, undetected cases are more likely to spread infection, mass testing has checked the spread of the virus by identifying and breaking its chains of transmission.

The median incubation period, between infection and symptoms first appearing, is about five days, during which time asymptomatic individuals may unknowingly infect others. Mass testing detects infections early, so that individuals can self-isolate and get treatment instead of infecting others.

South Korea had built up its testing capabilities following the Middle East Respiratory Syndrome (MERS) outbreak in 2015. It was thus prepared with test kits and facilities for rapid development, approval and deployment in case of future outbreaks.

After South Korea confirmed its first case of Covid-19 on 20 January 2020, hundreds of testing facilities, ranging from drive-through kiosks to hospitals and local clinics, quickly became available across the country.

Trace, test, treat

The tests are mainly free for those whom medical professionals suspect need to be tested, e.g., if they recently returned from China. The tests are also free of charge for “secondary contacts” of a person known to be infected or to belong to an at-risk group.

Others who do not belong to these categories, but wish to be tested, are charged 160,000 Korean won (about US$130), but the amount is reimbursed if the result is positive, with any treatment needed paid for by the government.

Mass testing detects infections early, so that individuals can self-isolate and get treatment instead of infecting others

Another legacy of the MERS outbreak is that the government has the legal authority to collect mobile phone, credit card and other data from those who test positive for contact tracing efforts. China, too, has made use of artificial intelligence and big data to improve contact tracing and manage priority populations.

Although this has sparked debates over privacy concerns, South Korea’s proactive testing and contact tracing methods have also been praised by the World Health Organization (WHO), which is encouraging other countries to apply lessons learned in South Korea, China and elsewhere in East Asia.

Path not taken

Although South Koreans are banned from entry into more than 80 countries around the world, its authorities have only restricted incoming travellers from China’s Hubei province, whose capital city is Wuhan, and Japan, due to bilateral political tensions.

Special procedures require visitors from China and Iran to use smartphone applications to monitor for symptoms such as fever. As Europe has become the new epicentre of the pandemic, all visitors from Europe are now being tested for Covid-19, with those staying long-term quarantined first.

The Korean Centers for Disease Control and Prevention (KCDC) continue to urge people to practice social distancing and personal hygiene. Mass gatherings are discouraged, and employers encouraged to allow employees to work remotely. But no lockdown has been imposed, and South Korea has not imposed nationwide restrictions on movements of people within its borders.

Learning the right lessons

Besides South Korea, the WHO has also praised China for its Covid-19 response, which has rapidly reduced new cases, besides helping other countries with their efforts. More and more countries are restricting freedom of movement through lockdowns, citing China’s response in Wuhan.

However, Bruce Aylward, who led the WHO fact-finding mission to China, notes,

“The majority of the response in China, in 30 provinces, was about case finding, contact tracing, and suspension of public gatherings—all common measures used anywhere in the world to manage [infectious] diseases. The lockdowns people are referring to… [were] concentrated in Wuhan and two or three other cities . . . that got out of control in the beginning . . . [T]he key learning from China is . . . all about the speed. The faster you can find the cases, isolate the cases, and track their close contacts, the more successful you’re going to be”.

China and South Korea are now primed to detect and respond rapidly, which may make all the difference in preventing a new wave of infections. This is not to say that lockdowns are ineffective; we will soon know whether such measures in countries like Italy will succeed.

The faster you can find the cases, isolate the cases, and track their close contacts, the more successful you’re going to be

The South Korean and Chinese experiences suggest that resources should be concentrated on rapid and early detection, isolation and contact tracing, protecting the most vulnerable, and treating the infected, regardless of means, instead of mainly relying on strict lockdown measures.

This article was first published by inter press service news agency. The authors are both associated with Khazanah Research Institute but do not implicate KRI with the views expressed here.

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