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American Spring: How Trump ‘Africanised’ the United States and Sparked an Anti-Racism Movement

8 min read.

For Africans watching the unfolding uprising in America, the scenes seem eerily familiar, but disconcerting. Suddenly the tables have turned: America is being described in the same way that many African countries are depicted by the Western media; the US is beginning to resemble a failed African state.

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American Spring: How Trump ‘Africanised’ the United States and Sparked an Anti-Racism Movement
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The huge human cost of the coronavirus pandemic, the economic shock brought about by high levels of unemployment and business closures, and the suffocating to death of a black man by a white police officer in Minneapolis have created a perfect storm in America: like the death of Mohamed Bouazizi, the Tunisian hawker who set himself on fire in an act of protest against police corruption and ill-treatment (an incident that ignited what is referred to as the Arab Spring in the Middle East and North Africa), the death of George Floyd has sparked an “American Spring” of sorts, with protesters demanding racial justice and equality in a country that has been divided along colour lines for four centuries, since the first slave ship arrived on America’s shores.

A week after Floyd’s murder, the streets of American cities were flooded with paramilitary security forces known as the National Guard, which shot at protestors. Many stunned Africans could not believe the kinds of scenes being played out in the United States – riots on streets, burning of shops and cars, and a leader under siege by citizens who, in the middle of a pandemic, have thrown caution to the wind and taken to the streets in anger, defying social distancing directives.

US President Donald Trump, who has all the traits of a narcissistic African Big Man, threatened to call in the military to quell the violence. (If this had happened in an African country, the international media would have had no hesitation in labelling him a dictator.) America is beginning to look like a failed African state.

Protests across the United States, some of which have turned ugly and resulted in a number of deaths and thousands of arrests, have turned American cities into battlegrounds. The video of a white police officer kneeling on the neck of an unarmed black man who died as a result of suffocation has mobilised an entire country to take to the streets in protest against systemic racism. (In Kenya, on the other hand, where at least fifteen people have died as a result of police brutality since a night curfew was imposed on 27 March, nobody has taken to the streets to protest the brutality or to demand justice for the victims. Extrajudicial killings by the police are quite common here, even during normal times.)

For Africans watching the unfolding uprising from afar, the scenes shown on television screens and on social media sites seem eerily familiar, but disconcerting. Suddenly the tables have turned: America is being described in the same way that many African countries (and other countries that elicit a combination of shock, horror and pity) ) are depicted. The façade of democracy that America has been showing to the world appears to be crumbling. As the Ugandan journalist Charles Onyango-Obbo half-jokingly suggested in a tweet, the Western media usually interviews Western experts every time there is a disaster or political turmoil in an African country; maybe now it is time for African experts to be interviewed by the same Western media on the consequences of state failure, democratic fragility and regime illegitimacy in the United States.

The impact of the coronavirus on the United States was also hard to digest, given that America is one of the wealthiest countries in the world, with among the most sophisticated and well-equipped hospitals. People on the African continent, who are used to receiving food aid (when it is not stolen or diverted), watched in horror as millions of unemployed and homeless Americans queued for food and other supplies donated by charities. Those who have suffered epidemics like Ebola cannot believe their eyes when they see unclaimed American bodies ravaged by COVID-19 being buried in mass graves. (Mass graves in Africa are usually associated with genocide, ethnic cleansing or other atrocities, not disease.)

The late Binyavanga Wainaina, author of the satirical essay, “How to Write About Africa”, would no doubt have felt vindicated had he been around to see how American journalists are now having to apply the adjectives that they reserve for African basket-case banana republics to describe their own country. With the highest death toll from the coronavirus, and nationwide anti-racism protests, including in the capital Washington DC, the United States is beginning to look like Egypt during its tumultuous Arab Spring uprising (which, unfortunately, did not bring about the expected radical change) and Sudan during its recent revolution.

It is an important moment for Africans who view America as the land of equal opportunity. That rosy image has forever changed since Trump assumed office, and since the pandemic, which neither the president nor his trusted aides seem to be able to contain. Africans eager to study or live in the United States are now having second thoughts. A Kenya-born academic I recently had a conversation with wondered whether moving to the US was the right choice after all. Despite her US passport, she now feels trapped in a country where black lives are under constant threat. Will Africans living in the US move back to their home countries where at least they do not suffer racial discrimination?

Racism: The problem that never went away

Or perhaps America has always had the potential for a revolution like this one and Trump has only helped Americans and the world to see the fault lines that lie hidden beneath the country’s democratic ideals and shining skyscrapers. Now we all know that America is a deeply divided society both racially and in terms of income. It carries the scars of slavery and inequality to this day. The transatlantic slave trade, America’s “original sin”, it seems, has not only damaged African Americans, but their white tormentors as well. America has not learned what history tells us: You cannot move forward as a society until you have addressed and healed from the wounds of the past.

In 1967, Martin Luther King Jr, whose assassination in 1968 sparked similar protests, talked of America as a society that had been “poisoned to its soul by racism”. The Nobel laureate Toni Morrison described racism as “a social construct” and an “insult”. She believed that the main function of racism was distraction – to keep black people so busy explaining themselves to white people that they would not have time for anything else.

James Baldwin, the celebrated black American author, described black people as “the scapegoat” of America’s ills. He wrote that bigotry in the United States was “enough to make prophets and angels weep” and that black people in America lived under “martial law” where the police operate with “arrogant autonomy”. The way America deals with its “Negro problem”, he said, was either by killing black people or incarcerating them. He also said, “To be a Negro in this country and to be relatively conscious is to be in a rage almost all the time”.

Ta-Nehisi Coates, the contemporary African American writer who has been described as “the new James Baldwin”, explains how racism “disembodies” black people. The question Coates seeks to answer is: How does a black man live freely in his body when that body is under constant threat of being exterminated?

Through personal anecdotes of his youth in a rough neighbourhood in West Baltimore, to his days at Howard University, the first all-black university in America, Coates shows how fear is an ever-present feeling among African Americans, and why this fear transcends generations. He poignantly explains in his book, Between the World and Me, why, after more than a century since slavery ended, black people in the United States are still under the threat of being humiliated, locked up, beaten or killed.

He describes white America as a syndicate arranged to protect white power and privilege, which are used to dominate and control black bodies. “Sometimes this power is direct (lynching) and sometimes it is insidious (redlining)”.

Donald Trump’s presidency seems to have entrenched white power and privilege to heights that have not been witnessed in the United States in recent decades. His nonchalant attitude towards white supremacists and his belittling of women (including television journalists) and minorities have apparently not diminished his allure among his base. Trump represents an alt-right that is uncivilised and unapologetic. The anti-racism fury engulfing his presidency now is a reaction to his unadulterated bigotry.

However, we must also accept that no US president, not even Barack Obama, successfully handled the scourge of racism in America. Obama, the great hope of black Americans, failed to deliver racial justice and equality, even though he had a large number of people of colour in his administration. The Black Lives Matter movement emerged during his tenure at the White House. Obama, like most of his predecessors, did not overtly seek to address the race question in America. It’s possible that the fact of him being black (or rather, mixed race) prevented him from adopting an explicitly anti-racism agenda for fear of appearing too “radical”. Unfortunately, because the race question remained unresolved, white supremacists found a firm foothold in the Trump camp.

“Perhaps the deepest frustration of thinking about 1968 and 2020 is the time elapsed, the opportunities squandered, the lip service paid,” wrote David Remnick in the 31 May 2020 edition of The New Yorker. “In the realm of criminal justice, the prison population began to skyrocket under Ronald Reagan and kept on accelerating for decades, until midway through the Obama Administration. Black Lives Matter began, in 2013, at least in part because even the Obama Presidency, for all its promise, proved unable to exert anything like a decisive influence on issues of racism and police abuse”.

Many analysts believe that the current outburst of rage is a natural outcome of the financial crisis of 2008, when big corporations and banks were bailed out while thousands of working and middle class people lost their homes in what is known as the subprime mortgage crisis. This gave birth to the Occupy Wall Street movement, and perhaps sowed the seeds of a Trump presidency, which capitalised on people’s mistrust of government.

However, although Trump appears to appeal to white working class people, his rhetoric belies a man who has deep contempt for those who are outside mainstream corporate America, of which he is a prominent member. He lashes out at minorities, be they Mexicans, Muslims or women. He racialises everything, including the coronavirus, which he refers to as “the Chinese virus”. He names and shames his adversaries on Twitter, and even announces his policies via this social media platforms – which is unprecedented in the history of the United States.

Trump is not just a conservative with a loud mouth and bad manners, he is an ultra-conservative of the alt-right variety. Steve Bannon, Trump’s former chief strategist and a man with a vision of a dystopian world where might is always right, was Vice President of Cambridge Analytica, the disgraced data mining company that is associated with the Brexit referendum and Trump’s election (as well as with Uhuru Kenyatta’s 2013 election campaign).

White men on their necks

In a radio interview in Chicago in 1961, James Baldwin said: “The only thing that unites all black men everywhere is, as far as I can tell, the fact that white men are on their necks. What I’m curious about is what will happen when this is no longer true. For the first time in the memory of anybody living, black men have their destinies in their own hands. What will come out then, is a very great, a very loaded question”. (African leaders who fought against European colonialism, but who, after gaining independence for their countries, ended up domesticating the European colonial model in these countries – a model that did not deliver dignity, wealth or emancipation to the majority of their people – might want to pay attention to Baldwin’s prophetic words.)

Now, nearly sixty years after that interview, a black man with a white man literally on his neck has galvanised America. Will his death bring about the change that America needs? It is hard to tell, but one thing is certain: the United States of America will never be the same again.

And lest we forget, here are the final words of George Floyd before his untimely death.

“It’s my face man
I didn’t do nothing serious man
please
please
please I can’t breathe
please man
please somebody
please man
I can’t breathe
I can’t breathe
please
(inaudible)
man can’t breathe, my face
just get up
I can’t breathe
please, a knee on my neck
I can’t breathe
shit
I will
I can’t move
mama
mama
I can’t
my knee
my neck
I’m through
I’m through
I’m claustrophobic
my stomach hurt
my neck hurts
everything hurts
some water or something
please
please
I can’t breathe officer
don’t kill me
they’re gonna kill me, man
come on man
I cannot breathe
I cannot breathe
they’re gonna kill me
they’re gonna kill me
I can’t breathe
I can’t breathe
please sir
please
please
please I can’t breathe”

George Floyd was pronounced dead shortly thereafter.

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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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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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