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Manufacturing Non-Dissent: Is the Media in Kenya Really Free?

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Despite having a reputation of being the freest in Africa, the mainstream media in Kenya remains hostage to state and corporate interests that determine what can and what cannot be published.

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Manufacturing Non-Dissent: Is the Media in Kenya Really Free?
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Shortly after Daniel arap Moi’s death, when most newspaper columnists and editors in Kenya were extolling the virtues of the former president, and praising him for his “kindness” and “humility”, Father Gabriel Dolan, a columnist with the Sunday Standard, submitted an opinion article that talked of why so many Kenyans who had suffered under Moi’s regime could not forgive him. In his column, the Irish Catholic priest/human rights activist wrote:

Too often we say let bygones be bygones or forgive and forget. Those cheap clichés fail to appreciate how some have suffered . . . The first step in any national healing and reconciliation process is public acknowledgement of what happened. That has not taken place in Kenya. The TJRC [Truth, Justice and Reconciliation Commission] was an effort at uncovering the nation’s ugly past and putting it on record. But its report has been denied, ignored and demeaned by successive regimes . . . How can you forgive when your perpetrators deny their culpability?

The Sunday Standard, predictably, did not publish the article. In protest, Father Dolan submitted his resignation letter, in which he stated: “Mindful of the subject dealt with in the rejected submission, it is sad that not only did the Moi regime silence critics and free-thinking during his reign but even in death his family-owned media house will gag any columnist who questions its sordid treatment of dissenters, opponents and human rights activists. This is a sad requiem for freedom of the press in Kenya”.

Father Dolan and I were among eight columnists who resigned en masse from the Nation two years ago in protest against what we perceived as undue editorial interference and censorship. (The six other columnists were Maina Kiai, Kwamchetsi Makokha, George Kegoro, Nic Cheeseman, Gabrielle Lynch, and Muthoni Wanyeki.) In our statement, we noted that several editors and writers, and the cartoonist Godfrey Mwampembwa (aka Gado), had been dismissed by the newspaper for being critical of the Jubilee administration. Our exit, noted Kwamchesti Makokha, “belies the crisis in Kenyan media”.

Senior managers at the Nation Media Group (NMG) underplayed the significance of our joint resignation. In a front-page editorial published in the Nation a couple of days later, it insisted that it was non-partisan and “committed to telling the truth”.

Maina Kiai, George Kegoro and Gabriel Dolan were subsequently offered columns at the Sunday Standard. (I began writing an op-ed column for The Elephant, as did Wanyeki, Makokha, Cheeseman and Lynch.) When Kiai, Kegoro, and Dolan moved to the Nation’s biggest rival, I did wonder how they would fare there, given that Moi owned the newspaper in partnership with his former private secretary Joshua Kulei. (Despite claims of editorial independence, the Standard had rarely taken a stand that directly challenged Moi’s leadership, though at certain times in the country’s evolution as a multiparty state, the paper did take daring positions that might have offended its owners.)

Moi’s hold on the Standard became clear to me sometime at the end of 1992, almost exactly a year after the president had called for the repeal of Section 2A of the constitution that ushered in multipartyism. At that time, my weekly column at the Sunday Standard’s pull-out magazine section was abruptly discontinued. The column was titled “Straight from the Heart” and had gained a reputation for its frankness and focus on social (soft) issues. I was 29-years-old at the time, arguably one of the youngest columnists in the country, and an Asian woman to boot. I began writing the column at precisely the time when the Kenyan media was opening up and asking hard questions (thanks to multipartyism). Previously gagged columnists and cartoonists were lapping up their new-found freedom and doing what was previously unthinkable – caricaturing Moi and challenging his regime.

Perhaps it was my youthful naiveté that led to me to the office of Ali Hafidh, the then the editor-in-chief of the Standard newspaper. After waiting for a few minutes outside his office at the Standard’s main offices in Nairobi’s Industrial Area, I was ushered in. I had never met Hafidh before (the pull-out magazine I co-edited was managed by a subsidiary of the Standard and was located in the posh Lonrho building in the central business district, so my interaction with my colleagues in Industrial Area was limited). I expected to meet a rude, loud, and arrogant man (because that had been my experience with editors with big egos in Kenya’s media houses). Hafidh, who had worked as chief sub-editor with the Nation newspaper before taking up the position of editor-in-chief at the Standard, appeared to be a quiet, self-effacing and soft-spoken man. I politely asked him why he had decided to discontinue my column. His response? “Some people didn’t like it”.

Now, in those days if an editor told you that “some people” didn’t like your column or story, you knew exactly who those people were. I walked away from his office without further questions.

At that time the Standard was associated with Mark Too—also known as President Moi’s “Mr Fix-It”—who sat on the board of Roland “Tiny” Rowland’s Lonrho Group, which owned the newspaper. (Lonrho PLC sold the newspaper to Moi in 1995.) It was obvious that someone in Moi’s government was not happy with what I had written. The last column I wrote before my dismissal had talked about why privatising Kenya Airways was not such a wise decision. Did Moi or his cronies feel threatened that such an opinion might derail talks on the sale of the national carrier? If so, I found it quite amusing, if not unbelievable, that a columnist of my rather small stature could offend a head of state. After all, in the world of mega-columnists like Philip Ochieng, Wahome Mutahi (aka Whispers), Kwendo Opanga and Tom Mshindi, I was a midget.

After that experience, I veered away from mainstream journalism and found a career in the United Nations, where I watched Kenya’s pro-democracy movement from a safe distance. Those were the days of Saba Saba rallies, and opposition politicians hiding out in Western embassies. Although the repeal of Section 2A of the constitution had opened up the media space in Kenya, leading to a proliferation of opinion writers and publications, some media houses were less free than others. And Moi’s invisible hand could be felt everywhere.

I only reclaimed my space in mainstream Kenyan journalism many years later, in 2006, when I was offered a weekly op-ed column in the Daily Nation.

How free is free?

Kenya is often lauded by the international community as having one of the freest media on the continent. This is true—but only partially so, as I will explain later. While journalists in countries such as Uganda, Rwanda, Ethiopia, Somalia and Sudan were (and are) routinely gagged, jailed or even killed, after 1992 it became increasingly rare to hear about journalists being arrested or tortured.

But then, as Noam Chomsky explains in his brilliant treatise Manufacturing Consent, there is no need to forcibly censor journalists or news organisations that willingly volunteer to censor themselves. Commercial interests and the interests of media owners often determine the content of newspapers. Editors happily give in to these interests because newspapers are for-profit organisations that depend on revenue to survive.

The reason why Kenya’s mainstream traditional media can never be truly independent is that they are part and parcel of what we might refer to as The Establishment. As Denis Galava points out in a chapter in the Oxford Handbook of Kenyan Politics (published in February this year and edited by Nic Cheeseman, Karuti Kanyinga and Gabrielle Lynch), “despite a level of independence and the relatively high quality of investigative journalism that has helped to uncover scandals and bring attention to certain injustices . . . the media in Kenya is part of both ideological state apparatuses and other hegemonic structures that help to ‘manufacture consent’”.

There is no need to forcibly censor journalists or news organisations that willingly volunteer to censor themselves

The Nation Media Group, for instance, has always deferred to the government in power because its biggest shareholder, H.H. The Aga Khan, has various commercial interests in Kenya. Even though it has at various times championed opposition politics, it has always been careful not to topple or irreversibly damage the relationship the Group enjoys with the state.

There is also what could be perceived as an unhealthy relationship between the NMG’s Board of Directors and corporate interests that are not particularly keen on independent journalism. As Herman Wasserman and Jacinta Mwende Maweu point out in their paper, “The freedom to be silent? Market pressures on journalistic normative ideals at the Nation Media Group” (Review of African Political Economy, 2014), quite often the NMG’s Board of Directors (most of whom represent or sit on the boards of other companies) make decisions purely on the basis of profit. They wrote:

It is evident that the top executives of the NMG are not trained journalists, but strategic corporate executives to oversee the business orientation of the Group . . . 16 members of the Board of Directors are handpicked by the main shareholder, the Aga Khan, and they are supposed to act as his ‘eyes and ears’ to ensure business prosperity of the group and subsidiary companies . . . This business orientation of the Group is slowly but surely narrowing the gap between journalists and advertisers, bankers, financiers and industrial business people. . .

Wasserman and Maweu note that quite often the Board of Directors exerts pressure on the NMG’s top management, who in turn exert pressure on individual journalists to promote the owners’ interests.

However, “state capture” of the media still plays a dominant role in how commercial media houses in Kenya operate. In both Moi’s and Jomo Kenyatta’s time, it was quite normal for newspaper editors to receive calls from State House urging them not to publish or to underplay a certain story. For instance, when J.M. Kariuki was assassinated in 1975, the Nation newspaper, under the editorship of George Githii, (in) famously reported that the Nyandurua MP was in Zambia.

In another instance in 1989, when Gray Phombeah (full disclosure: Gray is my husband), the Special Projects Editor at the KANU-owned Kenya Times, unearthed an Italian mafia link in Malindi that had close ties to State House, he, along with Joseph Odindo, the acting editor-in-chief, were fired. (The editor-in-chief, Philip Ochieng, was out of the country at the time. Ochieng had “poached” both Gray and Odindo, among other journalists, from the Nation newspaper.) They only got their jobs back after they wrote a personal apology to Moi. (Odindo has since held various senior editorial management positions at the Nation and the Standard. Gray joined the BBC Africa Service in London, and then returned to the BBC’s Nairobi Office, which he eventually headed until his departure in 2008.)

But that was then, in the cloak-and-dagger Moi days, when all journalists were under intense scrutiny, and when no newspaper, let along the ruling party’s, could get away with being critical of the government. Newspapers had moles in every newsroom, and the dreaded Special Branch did not hesitate to pick up journalists for real or imagined negative reporting. But for this practice to continue in another form, this time with the complicity of editors, shows we have not really embraced the concept of independent journalism.

For instance, it is widely believed that under Tom Mshindi’s editorial leadership, the Jubilee government of Uhuru Kenyatta enjoyed special privileges at the NMG. The departure or dismissal of several columnists, writers, and editors at the Nation occurred during his tenure—which leads many to believe that he took instructions about who to retain and who to fire from State House.

As Galava notes in his chapter:

Most recently, Tom Mshindi, who was the Nation’s editor-in-chief between 2014 and 2018, was accused by editors and some columnists of engendering self-censorship, uncritical acquiescence to President Kenyatta’s capricious demands, and gatekeeping for the state. During his tenure, Mshindi fired journalists deemed to be too critical of the government, including this author. Also pushed aside was David Ndii, a public intellectual and an ardent critic of the Jubilee government, who wrote a popular fortnightly column in the Saturday Nation. Another low moment for Kenyan journalism was the unprecedented mass resignation of eight independent columnists . . . in March 2018 on the basis of claimed lack of editorial independence. The timing of the columnists’ resignations was critical because it coincided with the hardest clampdown in Kenya’s media history and the most desperate measures of self-preservation that media actors had embraced to survive and profit in the prevailing circumstances.

(Ironically, not long after we resigned from the NMG, Tom Mshindi was offered a retirement package, which included a weekly column in the Sunday Nation.)

It is odd that a newspaper that led a campaign against “brown envelope journalism”—the practice prevalent among many Kenyan journalists of writing stories that are favourable to whoever pays the price—could succumb to government pressure. In the 1980s and ‘90s, when journalists were among the lowest-paid professionals in the country, the bribing of reporters became common practice among politicians, and even among private sector companies. However, as professional standards in newspapers improved, and especially with the advent of commercial TV stations in the late 1990s and the early part of this century, bribery was increasingly not tolerated. (Some journalists even lost their jobs for having taken a bribe.) Top journalists in the country began commanding higher salaries because editors and editorial boards understood the importance of retaining good journalists, news anchors and reporters who could pull in the audiences required to keep profits soaring.

If you can’t buy them, strangle them financially

Under Jubilee, however, the fate of media houses has become increasingly precarious. With the introduction of MyGov, a government pull-out that advertises government jobs and tenders and is essentially a government mouthpiece, revenues in media houses have been plummeting as they no longer benefit from government advertising—a major source of their income. Media houses are cutting back on staff as a result, and some even face imminent closure in the face of declining readership (thanks in part to poor management decisions, such as those made by Mshindi on behalf of the government, which reduced the level of trust that audiences/readers have in the mainstream media—media that not too long ago were rated as among the “most trusted” institutions in the country.) Disgruntled or frustrated journalists are finding livelihoods elsewhere, in PR or in the NGO or private sector.

In the 1980s and ‘90s, when journalists were among the lowest-paid professionals in the country, the bribing of reporters became common practice

The quality of journalism has also declined. The previous practice of “buying” journalists and editors or denying media houses advertising in order to “punish” them has resurfaced. Investigative stories implicating senior officials close to the powers that be are being suppressed. Talk shows that should ideally be asking the hard questions and making leaders accountable have turned into circuses where hosts think their main job is to entertain, not to inform or debate. Censorship is also in full swing. Clear evidence of this was the government-orchestrated blackout of three TV channels in January 2018 to prevent them from airing the “swearing-in” of Raila Odinga as the “People’s President” at a rally in Uhuru Park. We are now back in the bad old Moi days.

The only difference between the Moi days and today is that we have far more journalists willingly toeing the government line than we did in the 1990s. Even die-hard anti-Uhuru columnists, like Makau Mutua, have softened their position. The sanitising of Moi during his funeral, the insanely tedious focus on the rivalry between deputy president William Ruto and Uhuru’s new ally, Raila Odinga, and the celebrity-focused mind-numbing stories that pass off as news obscure the life-and-death issues that ordinary Kenyans have to grapple with on a daily basis.

There is also insufficient interrogation of government edicts, including the Building Bridges Initiative (BBI); those opposing BBI are often portrayed as unpatriotic spoilers. Kenyan stories that make international headlines are also ignored or underplayed. For instance, I believe I am the only Kenyan journalist who questioned the role the now-disgraced Cambridge Analytica played in the 2013 and 2017 Kenyan elections.

Talk shows that should ideally be asking the hard questions and making leaders accountable have turned into circuses

Interestingly, social media, or more specifically Kenyans on Twitter (dubbed KOT), have stepped in to fill the vacuum. It should be noted that it was only when a Kenya Airways employee posted a video on social media of a plane from China landing at Jomo Kenyatta International Airport—despite the government’s stated ban on such flights due to the high number of coronavirus cases in China, where the infection originated—that the Kenyan mainstream media began taking the coronavirus pandemic seriously. And when the Kenya Airways employee was suspended by the airline, it was KOT that defended him, not the media houses. (Kenya Airways, in a press statement, claimed he had breached security at the airport and that they had suspended him so they could carry out investigations. A court later ordered that he be reinstated.)

Similarly, the locust invasion that is devouring parts of this country was first highlighted on social media. The government’s response to this livelihood-threatening disaster has since been poor at best, if not contemptuous.

How the mainstream traditional media tackles such issues in a post-opposition Kenya where the citizenry has been homogenised and neutered by the famous handshake between Raila and Uhuru will be interesting to watch as we approach a tumultuous and unpredictable election in 2022. What will also be interesting to see is what alternative sources of news and information Kenyans will rely on as they head to the polls.

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Rasna Warah is a Kenyan writer and journalist. In a previous incarnation, she was an editor at the United Nations Human Settlements Programme (UN-Habitat). She has published two books on Somalia – War Crimes (2014) and Mogadishu Then and Now (2012) – and is the author UNsilenced (2016), and Triple Heritage (1998).

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Kenneth Kaunda: The Founding President of Zambia

Independence leader who fought white rule and helped shape postcolonial southern Africa

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

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

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

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

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

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

Centrality of an individual judge’s independence

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

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

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

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

Selection and disciplining of judges

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

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

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

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

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

The injustice of cherry-picking

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

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

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

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

Psychological tyranny

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

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

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

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

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

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

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

Vaccine approval and quality control

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

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

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

Vaccine indemnities and compensation 

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

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

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

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

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

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

Sputnik V 

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

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

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

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

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

What the government needs to do

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

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

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