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How COVID-19 Reveals the Paradoxes of Neoliberal Logic

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Pandemics force even neoliberal thinkers to admit that government action and collective solidarity are what is urgently needed.

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How COVID-19 Reveals the Paradoxes of Neoliberal Logic
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In the wake of COVID-19, a reading of current political discourse and events shows that global neoliberal capitalism is premised on a paradoxical logic. This realisation goes hand-in-hand with the high degree of responsibility placed on the state to take decisions in collective solidarity.

COVID-19, classified as a pandemic, has created a moment aptly described by William Shoki as one that “demands decisive state action”. Not only are states expected to act, but they are also called upon to act comprehensively, bearing responsibility as primary global actors. This runs against the grain of the current politico-economic system properly characterised as capitalist and neoliberal. Neoliberal ideology promotes individualism and includes the belief that unregulated free markets yield efficiency and prosperity. In line with this, the state is expected to act minimally—focused on securing the conditions necessary for the market to operate.

In understanding that a neoliberal logic advocates for the free market because of its (alleged) corrective capacities, the current need for decisive state action brings to light a difficulty for proponents of neoliberalism. Despite the popularity of neoliberal tenets, consistent neoliberal actions are criticised. Donald Trump’s appeal to businesses to resume activities sooner rather than later, as well as his call for automobile manufacturers to produce ventilators, for example, must be read as consistently neoliberal decisions. Here, Trump is making an attempt to force the market function. This is done under the assumption that the market can deal with the crisis at hand. He has also come under criticism for these and other decisions, being accused of failing to act. Trump’s approach should not be read as inaction, but rather as consistently neoliberal action—choosing not to do anything is a choice. The critique of this choice indicates that few want to watch the free market (alone) try to deal with the crisis that is COVID-19. The public health risks are simply too high. Here we see a turn towards a desire for strong state intervention.

What then is the role of private capital during this time? Discourse shows that private capital is seen as a victim of the pandemic—as subject to its detrimental effects and not responsible for corrective action. Furthermore, help from the private sector is seen as a charitable act worthy of applause. Apple’s donation of US$15 million announced under the heading, “Giving Back” is one such example, as well as Johann Rupert and Nicky Oppenheimer’s R2 billion (roughly US$ 125 million) donation to the South African Solidarity Fund. Even if we choose to see these donations as a way in which the market proactively deals with a crisis, it seems apparent that private capital (acting in a “free” market) lacks the capacity to use this money to mitigate disaster and enact emergency measures, such as travel bans and lockdowns. If COVID-19 is left to the private sector to correct, we will bear witness to higher infection and death rates than if left in the hands of a government acting in collective solidarity. Collective solidarity is described by Slavoj Zizek as a virtue that, in the context of the COVID-19 pandemic, implies that individuals ought to practice social distancing and self-isolation. When this concept is ratcheted up to the level of the state, it implies that states ought to enforce such strategies to limit local transmission.

In the absence of strong state action—that is, if left to the market mechanism alone—we allow for a significant thinning of the population. This outcome is difficult to defend from a moral standpoint (although some may try). Rather, we are compelled to favour a moral view that values human life and seeks to protect it—a value entailed by collective solidarity. For acting on this principle, we leave the management of pandemics such as COVID-19 to the state.

The view that the state ought to act seems to have general consensus, which is shown by the absence of questions like “should the state intervene in the wake of COVID-19?”, the question being rather, “how should the state intervene?” The silence of the former speaks volumes about the limits of neoliberalism in its capacity to promote well-being—a shortcoming that even neoliberals seem to accept.

The predicament of state action during this time arises from the principles of a neoliberal global system which, in its staunch individualism, is at odds with collective solidarity. That is, an economic system premised on individualism must, during times of crisis, sacrifice its own logic in order to protect its future beyond crisis—presenting us with a paradoxical situation.

It would be amiss to read the situation at hand as asking to choose between neoliberalism now and later or just strong state now, neoliberalism later. They are both worse! says Zizek, arguing that some choices function to “obfuscate a true choice”. As discussed by Alex Broadbent and Benjamin Smart, many African states face the tough decision of acting strongly to prevent the spread of COVID-19 while acknowledging that “we are putting in place malnutrition and starvation for millions of people, and for these horrors, children and especially infants are the most at risk. And very many of those infants are born, and will die, in Africa”. This trade-off is an indication that the current neoliberal system is incapable of providing capacity for a meaningful act of collective solidarity, a situation in which secured nutrition and public health are seen as two dimensions of well-being. Instead, these African states regard these, as choices that have to be made, thereby clearly not presented with valuable options. That developing nations must choose between taking serious measures to prevent the spread of a virus and protecting the economic well-being of their citizens presents a problematic situation of non-choice. Yet they must act. Shoki suggests that the real choice here is between “socialism or barbarism.” Furthermore, this choice cannot be seen as one that applies to the current situation and will disappear later; it must be asked of a neoliberal logic beyond the conditions of crisis.

This raises the question: can a neoliberal logic ever be consistently defended if, during trying times, it must be and is readily abandoned? A state that functions with a meaningful form of collective solidarity in the context of a global pandemic must do away with a staunch commitment to individualism and the free market if it is to optimise both individual and collective well-being. Moreover, it must resist falling back into the arms of such commitments once the crisis is over, because it will only face the same reality when the next crisis rolls around.

This post is from a new partnership between the African website Africa Is a Country. We will be publishing a series of posts from their site every week.

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Kiasha Naidoo is a philosophy student at the University of the Western Cape and a fellow at the Centre for Humanities Research.

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

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

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

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

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

Centrality of an individual judge’s independence

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

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

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

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

Selection and disciplining of judges

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

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

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

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

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

The injustice of cherry-picking

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

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

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

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

Psychological tyranny

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

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

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

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

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

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

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

Vaccine approval and quality control

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

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

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

Vaccine indemnities and compensation 

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

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

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

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

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

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

Sputnik V 

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

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

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

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

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

What the government needs to do

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

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

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

As we mourn President Kaunda, my prayer is that the death of this great African son and leader will remind us of the sacrifices that he and his contemporaries who fought for Africa’s independence made.

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Gone Is the Last Of the Mohicans: Tribute to Kenneth Kaunda
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17 June 2021

Tonight, I was welcomed in Addis Ababa, Ethiopia, by the sad news of the death of the first President of the Republic of Zambia and a founding father of the nation, His Excellency Dr. Kenneth Kaunda.

In this moment of great loss to Zambians and indeed all Africans, I wish to express my heartfelt condolences to the Kaunda family, President Edgar Lungu, and the government and people of the Republic of Zambia.

The demise of President Kaunda at the grand old age of 97 years brings to end the pioneers and forefathers who led the struggles for decolonisation of the African continent and received the instrument of Independence from the colonial masters in Africa.

Let all Africans and friends of Africa take solace in the knowledge that President Kaunda has gone home to a well-deserved rest and to proudly take his place beside his brothers such as Jomo Kenyatta of Kenya, Kwame Nkrumah of Ghana, Julius Nyerere of Tanzania, Habib Bourguiba of Tunisia, Léopold Sédar Senghor of Senegal, Nnamdi Azikiwe of Nigeria, Ahmed Sékou Touré of Guinea, Félix Houphouët-Boigny of Côte d’Ivoire, Patrice Lumumba of Congo, Nelson Mandela of South Africa to name but a few.

All of them, without exception, were nationalists who made sacrifices in diverse ways. Some, like Patrice Lumumba, untimely lost their lives soon after independence. We are consoled that God granted President Kaunda long life to witness the progression of Africa through five decades of proud and not-so proud moments.

In December 2015, I visited President Kaunda at his home in Lusaka in what was to be our last meeting. As we discussed about everything from family to politics in our two countries and indeed in Africa generally, I asked him if the Africa that we have today is the Africa for which he and his contemporaries struggled and fought. President Kaunda was visibly pained in his response and at some point he broke down and wept. It was obvious to me how disappointed he was about some of the challenges that have plagued our continent for decades since independence.

As we mourn President Kaunda, my prayer is that the death of this great African son and leader will remind us of the sacrifices that he and his contemporaries who fought for Africa’s independence made. Let it remind us of the vision that they had for Africa; their hopes and aspirations; their dream for a free, strong, united and prosperous Africa. Let us, African leaders and people, never let the labour of these heroes past be in vain.

Rest well, KK. Africa is free and will be great.

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