A few years ago, I noticed an interesting phenomenon in the profile of applicants for language faculty positions. A number of degree holders had studied, especially in the UK, language teaching, rather than linguistics or education. This meant that the interviews revealed gaps in the candidates’ theoretical and technical grasp of either field.
An additional phenomenon, which was more worrying, was that when we asked some about their PhD aspirations, some of the applicants were not interested in pursuing their discipline. Some wanted to go into development and related fields, others into the more attractive degrees like communication. More disturbing among the literature aspirants was that some were not familiar with the latest fiction and other artistic output by Kenyans.
Because of Kenya’s anti-intellectual culture rooted in colonial rule and post-independence autocracy, most Kenyans reading this will collapse into the age-old narrative that Kenyan universities are at their usual game of producing graduates with “useless degrees”. However, I will argue in this article that these gaps are not just structural, but also neoliberal and global.
My interest in this issue has been ongoing. I am especially concerned that key professions in Kenya are being overwhelmed by administrative bloat, where the bulk of decisions are made by people who do not have the experience or training in the professional area they are making decisions about.
My concern got a boost recently during a conversation about the COVID-19 pandemic lockdown and the current debates about privatisation of healthcare. The thing that struck me about the conversation was the faith in policy to fix structural problems. This faith is not unique to health. However, I find it interesting that in several cases, many of these policies are foreign or “international” (to remove the overt Euro-American provenance), and Kenyans are taking the assumptions about the policies for granted. As such, people get surprised when I question the policy itself, or its ability to resolve the problems it claims to solve.
I therefore decided to sample the syllabi of postgraduate degrees in public health in universities in Kenya, the UK and the US. Of key interest to me were:
- Were these degrees for medical practitioners?
- Was there any unit that potentially tackles imperialism, capitalism and privatisation as a health financing model; non-Western forms of medicine; and the history of imperialism and medicine in the global South?
In answer to the first question, the degrees were open to graduates not just from medicine, but from a wide range of disciplines. I am not against this in principle, but I am concerned that in a country like Kenya where business graduates have colonised the professions, this degree baptises such graduates with healthcare qualifications they do not possess.
On the second question, none of the topics is explicitly addressed, but more interesting is that there is at least a unit or two on traditional economics and on management systems. With international pharmaceutical companies and financiers interested in commercialising health, the absence of units on racism, imperialism and neoliberalism raises a flag about the possibility that universities are creating a cohort of policy bureaucrats to infuse the neoliberal logic in public healthcare systems worldwide. This would explain the rise in such scholarships from Western government bodies to students in the global South.
I am especially concerned that key professions in Kenya are being overwhelmed by administrative bloat, where the bulk of decisions are made by people who do not have the experience or training in the professional area they are making decisions about.
And yet, if this pandemic has revealed anything, it is that health is a multi-faceted sector that requires the cooperation of people with specialisation in the humanities, social sciences, life sciences and physical sciences. In other words, every discipline has to be involved in the discussions, knowledge and politics of health.
So why do I question interdisciplinary degrees like public health? Am I against interdisciplinary studies in principle?
Interdisciplinary degrees are a luxury
In every conversation where we are reminded how pathetic we Kenyan academics are, there is a mention of the need for interdisciplinary research. African scholars abroad also emphasise the need for African universities to introduce more interdisciplinary programmes and do more interdisciplinary research.
The problem is that advocates for interdisciplinary research do not address the culture of the Kenyan university as it now stands. These days, each discipline and department is a competitor, not a collaborator. We are all competing for student numbers to avoid the risk of being shut down or losing our jobs. That means that people whose disciplines sound job-oriented, like media studies or conflict resolution, or even “public health”, attract more students than language, performing arts, history, political science or medicine. Departments would now rather create units in their departments that cover the necessary skills from traditional disciplines than allow their students to come study in the departments of traditional disciplines. Some faculty even go as far as telling their students that the units are not available in sister departments.
The problem is that advocates for interdisciplinary research do not address the culture of the Kenyan university as it now stands. These days, each discipline and department is a competitor, not a collaborator.
To compound matters, the managerial overload in Kenyan universities means that the spontaneous interdisciplinary conversations among academics have basically died. Large class sizes mean that we can afford little time to chat and think. When we meet, we are meeting to troubleshoot inefficient systems, or to discuss administration matters such as how to fulfill the government’s regulation requirements or which new programme would attract students.
This culture of self-consciousness and competition is carried into academic conferences. We don’t read or discuss each others’ work, partly because, as I noticed when I was researching on education, our research agendas are dominated by government policy and not by public conversation or challenges.
With universities divided like this into silos, students can graduate without ever hearing people from disciplines outside their degrees. The days when Anyang’ Nyong’o was a political science student publishing poetry, or when Kivutha Kibwana was a law student writing plays, have gone.
For those of us in the arts, the bulk of our students are now in our classes just to meet the bureaucratic requirements and to sign the attendance sheet. And when we try to tie our discipline to actual issues in society or to other disciplines, the students feel that we are deviating from the syllabus. We are asking them to think, but university education is not for their minds. University education is for employers.
This situation has been brought about by the failure of Kenyan academics to challenge the language of the market imposed by the government and the private sector, who often accuse universities of offering programmes that are “too theoretical” and which have no practical use in the market.
But a more serious problem is now gaining root. We have fewer workers in the fundamental areas because Kenyans are shunning arts and science-based courses and going for interdisciplinary degrees in the belief that they will pursue careers as policy makers in either government, business or the NGO sector.
This scenario has produced the frustration of professionals in the arts and sciences. As a literary scholar, for example, I was recently frustrated by journalism which collapsed melodrama into investigative reporting. Mordecai Ogada, an ecologist, writes of the strange situation of seeking an internship at Kenya Wildlife Service (KWS), and being told by no less than the research director that KWS did not need research scientists but wildlife managers (who are often trained in business schools).
This situation has been brought about by the failure of Kenyan academics to challenge the language of the market imposed by the government and the private sector, who often accuse universities of offering programmes that are “too theoretical” and which have no practical use in the market.
Some time back, a medical doctor expressed frustration with public health graduates, saying that their top applicant for a job “couldn’t differentiate between airborne diseases and waterborne diseases. Or give an example of a bacterial STI [sexually transmitted infection]”.
Interdisciplinary courses are failing our students because they are teaching students to integrate and apply knowledge which the students have not mastered in the first place. It is my opinion that we need a moratorium on these programmes in Kenya until such a time that we have enough health workers to treat, enough teachers to teach, and enough professionals to practise their skills in the field. Interdisciplinary fields are flooding the market with health professionals who can’t or have never treated, with education bureaucrats who make policy that does not work in the classroom, and, as Ogada said, with research officers who are basically revenue collection agents.
In his book, Disciplinary Decadence: Living Thought in Trying Times, philosopher Lewis Gordon addresses this silo mentality of university departments, noting that disciplines have collapsed on themselves and stopped talking to each other. Instead, he notes, everybody attacks the other for not being them. For instance, philosophers attack religion scholars for not being philosophical, literature scholars attack medics for not being literary, and medics attack artists for not being medical. The economists attack everybody else for not being entrepreneurial. What is lacking, Gordon argues, is the recognition that education is necessarily interdisciplinary, and requires conversations across disciplines.
These silos need to be replaced with the “teleological suspension” of our subject areas in our pursuit of knowledge. Teleological suspension, Gordon explains, “is when a discipline suspends its own centering because of a commitment to questions greater than the discipline itself.” We implement this suspension because it is more important to answer real life questions using knowledge from various disciplines than it is to be a stickler for rules and insist that a question can only be answered by one’s own discipline, and that people who are not trained in that area cannot participate in the conversation. Just like we suspend reality when we read fiction or watch a play, we professionals and academics should be able to suspend our professional titles and training as doctors, philosophers, literary scholars, scientists or anthropologists, and be able to talk to people in other disciplines over the common issues confronting all of us.
What is lacking in Kenya is not graduates; it is real education in its true interdisciplinary character. Kenyans are unable to talk with each other across the disciplines because they have been compartmentalised by the market logic imposed by the private sector, enforced by the government and popularised by the media.
We need to return to true education because education is the space in which society suspends disciplinary boundaries and discusses real life issues. Instead of bureaucratising interdisciplinary-ness through degrees, we should reconstruct the university to become a community where the public – not just academics and students – come together from across the disciplines to discuss issues facing all of us. Education needs to return to being the public space through which, as Gordon says, “the unpredictable can leap forth and the creative can shine”.
Achieving such an education system requires the following:
- Constant debunking of the market logic that is imposed on education. Academics need to stop bowing to the private sector’s demands for employees who subsidise company profits by paying for their own specialised training. In its demands for work-ready graduates, the private sector behaves as if the entire society must revolve around it. We need to resist this abuse.
- A university environment that creates the opportunity for conversation and human interaction because the supremacy wars between departments and disciplines will have ended together with the market logic. With more academic faculty and a lower teaching load, departments can invite people outside their discipline to give lectures and debates on real-life issues which can be attended by students and the general public. The discussions and questions from the audience will nurture interdisciplinary thinking without universities needing to invent interdisciplinary degrees for the students. And students will get to build inter-professional relationships with their classmates, relationships which they can use once they are working in the larger society.
- Revive theoretical studies in universities. The popular idea of “theory” as irrelevant has scared academics away from theoretical engagement and towards interdisciplinary degrees to display their “relevance”. However, theory is, simplistically put, a story, no matter which discipline the story is told from. Different disciplines unite when they discuss theory. For instance, the work by Frantz Fanon is relevant to his professional training in medicine, and to education, literature, politics, psychology, environmental studies and so many other disciplines. And yet Fanon is little spoken about in Kenyan academic spaces.
The war against theory, Gordon says, is in reality a war against truth and reality. In fact, one striking feature of the public health programmes I surveyed is that there is no unit dedicated to theory. How are the students able to talk across diversity of disciplinary backgrounds with no theory?
Life and reality, in and of themselves, are already interdisciplinary. There is therefore a need to heal Kenyan higher education so that it reflects life itself. Universities need to be communities
Kenyans are unable to talk with each other across the disciplines because they have been compartmentalised by the market logic imposed by the private sector, enforced by the government and popularised by the media.
COVID-19 raises questions about interdisciplinary degrees where skills are taught in the classrooms for professionals to practise in society, but interdisciplinary thinking is practised through collaboration facilitated by the institutional culture. With only 2% of the Kenyan population having attended university, and with the number of health workers way, way below minimum per population, we cannot afford to pour resources into interdisciplinary degrees, especially not for health.
Let us emulate the Cubans and train and employ more health workers who actually treat Kenyans, and who can resist being outnumbered and overpowered by bureaucrats implementing the neoliberal and bureaucratic logic that is destroying our healthcare. The health workers can then team up with the “useless” graduates in the arts and social sciences to come up with an experience-based, technically robust and human response to health challenges such as pandemics. That way, we would not rely on bureaucratic and “policy” responses that are proving to be more neoliberal than anything else.
Support The Elephant.
The Elephant is helping to build a truly public platform, while producing consistent, quality investigations, opinions and analysis. The Elephant cannot survive and grow without your participation. Now, more than ever, it is vital for The Elephant to reach as many people as possible.
Your support helps protect The Elephant's independence and it means we can continue keeping the democratic space free, open and robust. Every contribution, however big or small, is so valuable for our collective future.
Cherry-Picking of Judges Is a Great Affront to Judicial Independence
Uhuru Kenyatta’s refusal to fulfil his constitutional duty to appoint and gazette JSC-nominated judges is a tyranny against the judiciary.
The 2010 constitution placed an onerous responsibility on the judiciary. That responsibility is to check that the exercise of public power is done in a manner that is compliant with the constitution. The constitution brought everyone, including the president – in both his capacities as the head of state and head of national executive – under the law. Hence, the judiciary has the final word when called upon to determine whether anything done or said to be done by anyone in the exercise of public power is constitutional.
To ensure that judges and magistrates can perform this task, the 2010 constitution created a strong architecture to secure judicial independence. In a nutshell, judicial independence simply means creating the necessary guardrails to ensure that judges and magistrates are and feel fully protected to make the right decision without fear of reprisal and that the judiciary has the facilities it needs to create an enabling environment to facilitate judges and magistrates’ abilities to undertake that core mandate. Ordinarily, the critical aspects of judicial independence include decisional, operational/administrative as well as financial independence.
Operational independence safeguards the ability of the judiciary to run its affairs without interference from other arms of government or from anyone else. Financial independence on the other hand ensures that the judiciary is well funded and fully in control of its funds so that its core duty (decision-making) is not frustrated by either lack of funds or the possibility of a carrot–and-stick approach where the executive dangles funding to extract the decisions it wants. In this regard, the constitution creates a judiciary fund and places it under the administration of the judiciary. Unfortunately, the national government and the treasury have continued to frustrate the full operationalisation of the judiciary fund.
Centrality of an individual judge’s independence
Importantly, the foundational rationale for judicial independence and its different facets is securing the decision maker’s (judge and magistrate) individual independence. This is commonly referred to as decisional independence. In the end, the judiciary exists for only one reason: to adjudicate disputes. In this regard, the person who is charged with decision making is the one who is the primary beneficiary of judicial independence. Of course, ultimately, everyone benefits from an independent judiciary.
Still, the constitution has specific and high expectation of the decision-maker, including that he or she makes decisions based only on an objective analysis of the law and the facts. The decision maker must not be mesmerised or cowed by power. He or she should never be beholden to power – in the present or the future. Simply put, under the constitution, a decision maker should never have to think about personal consequences that he or she may suffer for making a decision one way or another as long as that decision is based on an honest analysis of the law and the facts. Put a bit differently, the decision maker should never have to make (or even think of calibrating) his or her decision to please those in or with power – either within the judiciary or outside it – with the expectation that it will help him or her to obtain professional favours, promotion or to avoid reprisals.
And this is why Uhuru Kenyatta’s cherry-picking of who should or should not be appointed judge is the greatest threat to judicial independence in Kenya.
But first a quick word on what the constitution says about the process of selecting, appointing and disciplining judges.
Selection and disciplining of judges
Before 2010, the president played a controlling role in the selection of judges. This meant that the surest way to become and remain a judge was by being in the good books of the president and his handlers. The result was that the judiciary was largely an appendage of the executive – and could hardly restrain the abuse of public power by the president or other ruling elites. The 2010 constitutional provisions on the judiciary were deliberately designed to eliminate or highly diminish this vice.
The power to select judges was given to the Judicial Service Commission (JSC), a body representative of many interest groups, the president key among them. Constitutionally, the president directly appoints three of the 11 JSC members: the attorney general and two members representing the public. But with his usual ingenuity at subverting the constitution, Uhuru Kenyatta has added to this list a fourth – by telling the Public Service Commission (PSC) who should be its appointee. Regardless, while there are always endless wars to control the JSC especially by the executive, the many interests represented complicate a full takeover of the JSC by the executive or any other interests. And that is partly what the constitution intended to achieve. The law – which the court has clarified numerous times – is that once the JSC has nominated persons to be judges, the president’s role is purely ceremonial, and one that he performs in his capacity as head of state. He must formally appoint and gazette the appointment of the judges. No ifs, no buts.
This is why Uhuru Kenyatta’s cherry-picking of who should or should not be appointed judge is the greatest threat to judicial independence in Kenya.
In fact, the law further clarifies that not even the JSC can reconsider its recommendation once it has selected its nominees. There is a good reason for this unbendable procedure – it helps to insulate the process from manipulation especially once the JSC has publicly disclosed its judge-nominees. Still, the constitution preserves for the president, the JSC and citizens the option of pursuing a rogue nominee by providing the realistic possibility for the initiation of a disciplinary and removal process of a judge even after appointment if there are legitimate grounds for such action.
In this regard, the JSC also has the responsibility to discipline judges by considering every complaint made against a judge to determine whether there are grounds to start proceedings for removal. It is to be noted that the president has more substantive powers in relation to the removal of judges. This is because if the JSC determines that there are grounds for the removal of a judge, the president’s hand is mostly unrestrained with regards to whom he appoints to sit on the tribunal to consider whether a judge should be removed. Unfortunately, there is an emerging trend that indicates that Uhuru undertakes this task in a biased manner by subjectively selecting tribunal members who will “save” the judges he likes.
The injustice of cherry-picking
Now, back to the injustices of Uhuru’s cherry-picking of judges for appointment.
The injustice is horrific for both the appointed judges and those who are not appointed, especially those of the Court of Appeal. Under the 2010 constitution, you do not become a superior court judge by chance.. For High Court judges nominated to the Court of Appeal, this is earned through hard work, countless sleepless nights spent writing ground-breaking judgments and backbreaking days sitting in court (likely on poor quality furniture) graciously listening to litigants complain about their disputes all day, and then doing administrative work to help the judiciary keep going. All this while maintaining personal conduct that keeps one away from trouble – mostly of the moral kind. Magistrates or other judicial staff who move up the ranks to be nominated judges endure the same.
The injustice is horrific for both the appointed judges and those who are not appointed, especially those of the Court of Appeal
If ever there was a list of thankless jobs, those of judges and magistrate would rank high on the list. It is therefore completely unacceptable that a faceless presidential advisor – probably sitting in a poorly lit room with depressing décor and a constantly failing wifi connection, and who likely has never met a judge – can just tell the president, “Let’s add so and so to the list of judges without ’integrity’. And by the way, from the last list, let’s remove judge A and add judge Z”. Utterly unfeeling and reckless. Worse, the judge is left to explain to the world what his/her integrity issues are when he or she knows nothing about them.
Cherry-picking also creates a fundamental perception problem. Kenya’s Supreme Court has confirmed that perception independence is a critical element of independence. For litigants appearing before the judges who were appointed in cases involving the president or the executive, it will be hard to shake-off the stubborn but obviously unfair thought that the judge earned the appointment in order to be the executive’s gatekeeper. That is what minds do; they conjure up possibilities of endless, and at times, conspiracy-inspired thoughts. Similarly, those who appear before a judge who was left out will likely believe that the judge – who decides a case impartially but against the executive – is driven by the animus of non-appointment. And you can trust the president’s people to publicly say as much and even create a hashtag for it. Yet such perceptions (of a judge who is thought to favour or be anti-executive) are relevant because justice is both about substance and perception.
And that is the psychological tyranny of Uhuru’s unconstitutional action – for both the judges that have been appointed and to those who have not. It is, indeed, a tyranny against the judiciary and, in a smaller way, against all of us. Perhaps just as Uhuru intended it to be.
COVID-19 Vaccine Safety and Compensation: The Case of Sputnik V
All vaccines come with medical risks and Kenyans are taking these risks for their protection and that of the wider community. They deserve compensation should they suffer for doing so.
How effective is Kenya’s system for regulating new medicines and compensating citizens who suffer side-effects from taking them? Since March 2021, Kenya has been using the AstraZeneca vaccine supplied through COVAX to inoculate its frontline workers and the older population. This is available to the public free of charge, according to a priority list drafted by the Ministry of Health (MOH). The Pharmacy and Poisons Board (PPB) also approved the importation of the Sputnik V vaccine from Russia, which was initially available through private health facilities only at a cost of KSh8,000 per jab, before the MOH banned it altogether. However, there were reports in the media that the vaccine continued to be administered secretary even after the ban.
Although side effects are rare, we know that all vaccines come with certain medical risks. Kenyans taking vaccines run these risks not just for their own protection, but also for that of the wider community. The state has a responsibility to protect citizens by carefully controlling the distribution of vaccines and by ensuring that adequate and accessible compensation is available where risks materialise. These duties are enshrined in the constitution which guarantees the right to health (Article 43) and the rights of consumers (Article 46).
A system of quality control before the deployment and use of medicines is set out in the Pharmacy and Poisons Act the Standards Act, the Food, Drugs and Chemical Substances Act and the Consumer Protection Act. However, the controversy over Sputnik V in Kenya has cast doubt on the coherence and effectiveness of this patchwork system. Moreover, none of these Acts provides for comprehensive compensation after deployment and use of vaccines.
Vaccine approval and quality control
Subject to medical trials and in line with its mandate to protect global health, WHO has recommended specific COVID-19 vaccines to states. Generally, WHO recommendations are used as a form of quality control by domestic regulators who view them as a guarantee of safety and effectiveness. However, some countries rely exclusively on their domestic regulators, ignoring WHO recommendations. For instance, the UK approved and administered the Pfizer vaccine before it had received WHO approval.
The COVAX allocation system fails to take into account the fact that access to vaccines within countries depends on cost and income.
By contrast, many African states have relied wholly on the WHO Global Advisory Committee on Vaccine Safety given their weak national drug regulators and the limited capacity of the Africa Centre for Disease Control (CDC). The Africa CDC itself deems vaccines safe for use by member states on the basis of WHO recommendations. Kenya has a three-tier approval system: PPB, Kenya Bureau of Standards and WHO. The PPB relies on the guidelines for emergency and compassionate use authorisation of health products and technologies. The guidelines are modelled on the WHO guidelines on regulatory preparedness for provision of marketing authorization of human pandemic Influenza vaccines in non-vaccine producing countries. However, prior to approval by PPB, pharmaceuticals must also comply with Kenya Bureau of Standards’ Pre-Export Verification of Conformity standards .
Vaccine indemnities and compensation
To minimise liability and incentivise research and development, companies require states to indemnify them for harm caused by vaccines as a condition of supply. In other words, it is the government, and not manufacturers, who must compensate them or their families where required. Failure to put such schemes in place has undermined COVID-19 vaccine procurement negotiations in some countries such as Argentina. Indemnities can be either “no-fault” or “fault”-based’.
No-fault compensation means that victims are not required to prove negligence in the manufacture or distribution of vaccines. This saves on the often huge legal costs associated with tort litigation. Such schemes have had a contested history and are more likely to be available in the Global North. By contrast citizens of countries in the Global South must rely on the general law, covering areas such as product liability, contract liability and consumer protection. These are usually fault-based, and require claimants to show that the vaccine maker or distributor fell below widely accepted best practice. Acquiring the evidence to prove this and finding experts in the sector willing to testify against the manufacturer can be very difficult.
By default, Kenya operates a fault-based system, with some exceptions. Admittedly, citizens have sometimes been successful in their claims, as in 2017 when the Busia County Government was ordered by the High Court to compensate victims of malaria vaccines. The High Court held that county medics were guilty of professional negligence, first by not assessing the children before administering the vaccines, and second by allowing unqualified medics to carry out the vaccination.
The problem is that the manufacturer has not published sufficient trial data on the vaccine’s efficacy.
In recognition of these difficulties, and in order to ensure rapid vaccine development during a global pandemic, WHO and COVAX have committed to a one-year no-fault indemnity for AstraZeneca vaccines distributed in Kenya. This will allow victims to be compensated without litigation up to a maximum of US $40,000 (approx. KSh4 million). To secure compensation, the claimant has to fill an application form and submit it to the scheme’s administrator together with the relevant evidentiary documentation. According to COVAX, the scheme will end once the allocated resources have been exhausted. The scheme also runs toll-free telephone lines to provide assistance to applicants, although the ministries of health in the eligible countries are also mandated to help claimants file applications.
Beneficiaries of the no-fault COVAX compensation scheme are barred from pursuing compensation claims in court. However, it is anticipated that some victims of the COVAX vaccines may be unwilling to pursue the COVAX scheme. At the same time, since the KSh4 million award under COVAX is lower than some reliefs awarded by courts in Kenya, some claimants may avoid the restrictive COVAX compensation scheme and opt to go to court. Because such claimants may instead sue the manufacturer, COVAX requires countries to indemnify manufacturers against such lawsuits before receiving its vaccines.
Sputnik V is different. Neither the WHO-based regulatory controls before use, nor the COVAX vaccine compensation scheme after use applies. Sputnik has not been approved by WHO or the Africa CDC. The PPB approved its importation in spite of the negative recommendation of Africa CDC, and in the face of opposition from the Kenya Medical Association. The rejection of Sputnik in countries like Kenya is partly due to the reluctance of Russia’s Gamaleya Institute to apply for WHO approval, partly because the manufacturer has not published sufficient trial data on the vaccine’s efficacy, and partly due to broader mistrust of the intentions of the Russian state. This may be changing as Africa CDC Regulatory Taskforce and European Medicines Agency are now reviewing the vaccine for approval while 50 countries across the globe have either approved its use- or are using it already. In Africa, Ghana Djibouti, Congo and Angola have approved the use of Sputnik V with Russia promising to donate 300 million doses to the African Union. Such approvals have been hailed for providing an alternative supply chain and reducing overreliance on the West.
As regards compensation, Russia has indicated that it will provide a partial indemnity for all doses supplied. However, no clear framework has been set out on how this system will work. There has therefore been no further detail on the size of awards, and whether they will be no-fault or fault-based. This lack of legal specifics has added to the reluctance of countries around the world to adopt the vaccine.
As matters stand, therefore, the Kenyan government would not be able to indemnify private clinics importing and administering Sputnik V. The absence of a statutory framework on vaccine compensation by the state makes this possibility even less likely. Nor would compensation be available from the Gamaleya Institute. The only route then would be through affected citizens taking cases based on consumer protection legislation and tort law in the Kenyan courts. As we have noted, this is complex and costly. Claims might be possible in Russia, but these problems would be exacerbated by language barriers and differences between the legal systems, as well as the ambiguity of the Russian compensation promises.
The private sector can complement state vaccination efforts, but this must be done in a way that guarantees accessibility and safety of citizens.
Although the importers obtained a KSh200 million insurance deal with AAR as a precondition for PPB authorisation, the amount per claimant was restricted to KSh1 million, which is well below the WHO rates and the average tort rates ordered by Kenyan courts. As an alternative to claiming against the manufacturers and distributors, injured patients might sue the Kenyan government. Such a claim would allege state negligence and dereliction of statutory and constitutional duties for allowing the use of a vaccine that has not been approved by global regulators such as WHO, thus exposing its citizens to foreseeable risks. This would be particularly attractive to litigants given the difficulties in recovering from the Russian authorities and the risk that Kenyan commercial importers would not be able to meet all possible compensation claims. Ironically, the use of the Sputnik V vaccine in private facilities still exposes the government to lawsuits even if it didn’t facilitate the vaccine’s importation and distribution.
What the government needs to do
The acquisition of vaccines has been undermined by the self-interested “nationalism” of states in the Global North. Only after buying up the greater part of available vaccines have they been willing to offer donations to the rest of the world. These highly publicised commitments fall far short of what is required in the Global South. Kenya’s first task must be to intensify its diplomatic efforts to increase supply through bilateral engagement with vaccine manufacturing states and in multilateral fora like the World Trade Organization, acting in alliance with other African states. Such steps are only likely to bear fruit in the medium term, however. In the short term, it is certainly sensible to involve private companies in vaccine procurement and distribution in order to supplement the supplies available through COVAX. This is recognised in Kenyan and international law as an acceptable strategy for securing the right to health. But it must be done in a way that guarantees accessibility and the safety of citizens. Accordingly, Kenya should encourage Russia (and all vaccine manufacturers) to publish full trial data showing effectiveness and risks, and to seek WHO approval on this basis. It should require them to establish and publicise detailed indemnity frameworks to allow for comprehensive and accessible compensation. It should acknowledge that citizens accepting vaccines are not only protecting themselves, but also the wider national and global community. With adequate regulation before use, the risk of doing so can be minimised and made clearer. But some risk remains, and those who run it deserve to be compensated for doing so. It is therefore imperative for Kenya to establish its own no-fault indemnity scheme for all state-approved vaccines, including those imported by the private sector.
This article draws from COVID-19 in Kenya: Global Health, Human Rights and the State in a time of Pandemic, a collaborative project involving Cardiff Law and Global Justice, the African Population and Health Research Centre, and the Katiba Institute, funded by the Arts and Humanities Research Council (UK).
Gone Is the Last Of the Mohicans: Tribute to Kenneth Kaunda
As we mourn President Kaunda, my prayer is that the death of this great African son and leader will remind us of the sacrifices that he and his contemporaries who fought for Africa’s independence made.
17 June 2021
Tonight, I was welcomed in Addis Ababa, Ethiopia, by the sad news of the death of the first President of the Republic of Zambia and a founding father of the nation, His Excellency Dr. Kenneth Kaunda.
In this moment of great loss to Zambians and indeed all Africans, I wish to express my heartfelt condolences to the Kaunda family, President Edgar Lungu, and the government and people of the Republic of Zambia.
The demise of President Kaunda at the grand old age of 97 years brings to end the pioneers and forefathers who led the struggles for decolonisation of the African continent and received the instrument of Independence from the colonial masters in Africa.
Let all Africans and friends of Africa take solace in the knowledge that President Kaunda has gone home to a well-deserved rest and to proudly take his place beside his brothers such as Jomo Kenyatta of Kenya, Kwame Nkrumah of Ghana, Julius Nyerere of Tanzania, Habib Bourguiba of Tunisia, Léopold Sédar Senghor of Senegal, Nnamdi Azikiwe of Nigeria, Ahmed Sékou Touré of Guinea, Félix Houphouët-Boigny of Côte d’Ivoire, Patrice Lumumba of Congo, Nelson Mandela of South Africa to name but a few.
All of them, without exception, were nationalists who made sacrifices in diverse ways. Some, like Patrice Lumumba, untimely lost their lives soon after independence. We are consoled that God granted President Kaunda long life to witness the progression of Africa through five decades of proud and not-so proud moments.
In December 2015, I visited President Kaunda at his home in Lusaka in what was to be our last meeting. As we discussed about everything from family to politics in our two countries and indeed in Africa generally, I asked him if the Africa that we have today is the Africa for which he and his contemporaries struggled and fought. President Kaunda was visibly pained in his response and at some point he broke down and wept. It was obvious to me how disappointed he was about some of the challenges that have plagued our continent for decades since independence.
As we mourn President Kaunda, my prayer is that the death of this great African son and leader will remind us of the sacrifices that he and his contemporaries who fought for Africa’s independence made. Let it remind us of the vision that they had for Africa; their hopes and aspirations; their dream for a free, strong, united and prosperous Africa. Let us, African leaders and people, never let the labour of these heroes past be in vain.
Rest well, KK. Africa is free and will be great.
Politics1 week ago
From Shifta to Terrorist: A Shifting Narrative Of Northern Kenya
Long Reads2 weeks ago
Tanzania: The Dialectics of Maguphilia and Maguphobia
Politics2 weeks ago
The End of Abiy-Mania
Op-Eds2 weeks ago
BBI and Kenya’s Finest Jurists
Reflections2 weeks ago
Benjamin Ayimba: The Making of a Rugby Great
Op-Eds2 weeks ago
India’s COVID-19 Surge Is a Warning for Africa
Culture2 weeks ago
Forgotten Histories: Eugenics, Racism and Colonial Mental Doctors in Kenya
Long Reads5 days ago
The West and Its African Monsters Syndrome