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This Anti-Black Racism Must End

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The World Bank has for too long perpetuated a racist stratification between developed and developing countries that privileges European countries and colonial settler-states.

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This Anti-Black Racism Must End
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The World Bank and its President, David Malpass, must not insult the global movement to end anti-Black racism which was sparked by the killing of George Floyd in the United States.

Until concrete action proves otherwise, the long #EndRacism banners hanging at the World Bank Headquarters in Washington DC merely represent an opportunistic appropriation of the global movement to end racial injustice and window dressing to defuse the growing demands for action within the World Bank and its sister institution, the International Monetary Fund (IMF).

While welcome, President Malpass’ promise to end racism within the World Bank, its programmes and the countries where it works, it must be preceded by an acknowledgment of the systemic racism that has bedeviled the institution for decades, and followed by concrete steps to uproot this scourge.

Legacies of colonialism and racism

The World Bank has for too long perpetuated a racist stratification between developed and developing countries that is the result of centuries of colonialism and has served as a gatekeeper of a global economic system that continues to privilege the developed world of European countries and colonial settler-states such as the US, Canada, Australia and New Zealand.

If the World Bank is earnest about putting an end to the scourge of anti-Black racism (or “Afriphobia” as some prefer to call it), it must work towards upending centuries of ruthless domination and exploitation—including systematic racial subjugation, colonisation, wars, genocides and enslavement—which have produced a global economy that continues to benefit developed countries to the social, economic and environmental detriment of developing countries, Black countries in particular.

The systemic anti-Black racism of the World Bank and its sister institution the IMF is holding African and Caribbean countries in debt bondage

As United Nations Secretary-General, António Guterres, put it in his Nelson Mandela Annual Lecture on 18 July 2020,

The legacy of colonialism still reverberates . . . We see this in the global trade system. Economies that were colonized are at greater risk of getting locked into the production of raw materials and low-tech goods – a new form of colonialism. And we see this in global power relations. Africa has been a double victim. First, as a target of the colonial project. Second, African countries are under-represented in the international institutions that were created after the Second World War, before most of them had won independence. The nations that came out on top more than seven decades ago have refused to contemplate the reforms needed to change power relations in international institutions.

This racism must end.

Lack of equity and democracy

The racially stratified world order that was established by centuries of colonialism is reflected in the governance structure of the World Bank.

Rather than being elected, the leaders of the World Bank (and the IMF) are appointed by the US and Europe, one result being that the leaders appointed to the World Bank are always American (while the leaders appointed to the IMF are always European).

Moreover, the entire voting system of the World Bank is skewed towards the domination of the US, Europe and other developed countries and the subordination of developing countries, African countries in particular. The largest vote holders are the G7 countries—the US, Canada, France, Germany, Italy, Japan and the United Kingdom—while middle- and low-income countries, which represent approximately 85 per cent of the world’s population, have approximately 40% of the vote.

Moreover, the systemic relegation of Black people in particular to the status of second-class global citizens is demonstrated in the gross underrepresentation of African and Caribbean nations on the board of the World Bank. Whereas the majority of World Bank programmes are in Africa and African countries account for more than 25 per cent of the member countries of the World Bank, they are allotted a paltry 5.5 per cent of the voting rights.

Nigeria alone has a population of 196 million people and a $1.1 trillion GDP (PPP), but merely 0.65 per cent of the voting rights in the World Bank. Qatar with a population of less than 2.8 million people and a US$346 billion GDP (PPP) wields more voting power than Nigeria. Ethiopia, one of the 23 founding members of the World Bank, with 109.2 million people and a US$253 billion GDP (PPP) is allotted 0.08% of the voting rights, which is significantly less than that of Luxemburg with a population of 613,894 and GDP of $44 billion.

Institutional racism is a widespread global phenomenon that has virtually excluded over 1.2 billion African and Caribbean people from global economic forums such as the Group of Twenty (G-20). Officially, the G-20 bills itself as “the premier forum for global economic and financial cooperation” and proclaims to be “inclusive” with a vision to “secure sustainable and balanced global growth and reform the architecture of global governance”.

Institutional racism is a widespread global phenomenon that has virtually excluded over 1.2 billion African and Caribbean people from global economic forums

Yet, Africa with a population of 1.2 billion and a GDP of $6.36 trillion is represented by only one country, South Africa. By comparison, South America, with a population of 423 million and a GDP of $6.6 trillion is represented by three countries.

This racism must end.

Perpetuating a racialised global economy 

The wealth amassed by the global economic order continues to be concentrated in businesses and peoples in the developed world. And the economies, production and consumption of developed countries continue to rely on cheap access to natural and human resources in developing countries.

This relationship undermines sustainable development, self-determination over natural resources, living wages and other labour rights, manufacturing output, access to higher education, social mobility, peace, security and political stability in developing countries.

This is no less true for Africa. Most of the world’s least developed and poorest countries are in Africa. Fourteen of the 15 least educated countries are in Africa. Twenty-three of the 25 highest infant mortality rates are to be found in African countries. The 30 countries with the lowest life expectancy are all in Africa. And excluding countries in civil war, eight of the ten most corrupt countries in the world are in Africa.

Between 1980 and 2009, US$1.2 to 1.4 trillion was illicitly siphoned out of Africa. This is far more than the money the continent received in foreign aid and loans over the same period. Sixty per cent of the losses Africa suffered are due to aggressive tax avoidance by multinational corporations.

In many cases, African countries were performing better than Asian countries before the World Bank became a fixture on the continent. As World Bank data shows, in 1960 there were 10 sub-Saharan African countries with a GDP per capita (constant 2010 US$) higher than those of China and Korea. Looking at the regional average, in 1960, the GDP per capita for sub-Saharan Africa was more than 300 per cent of that of the average for South Asia. In 2019, the average for sub-Saharan Africa was 14 per cent less than South Asia’s.

In the 1970s, Africa accounted for over 3 per cent of global manufacturing output. In 2016, the figure was down to 1.5 per cent, according to The Economist Intelligence Unit. As World Bank data shows, in 1985 the world traded US$2.47 trillion worth of stocks. In 2017, the figure had shot up to US$77.57 trillion. Sub-Saharan Africa (barring South Africa) is the only region that did not even register a blip on the radar screen of the global capital (stock) markets.

African countries were performing better than Asian countries before the World Bank became a fixture on the continent

After 50 years of the World Bank’s intervention in African countries, the results are damning. Far from alleviating poverty, World Bank-financed projects have “devastating consequences for some of the poorest and most vulnerable people on the planet”, as documented by the International Consortium of Investigative Journalists.

The Bank’s virulent racism, which has segregated and marginalised Black people in its decision-making governance architecture, has left the fate of Africa to white supremacy.

In effect, World Bank loan conditions and programmes (including “structural adjustment”) have aided foreign investors, corporations and developed countries rather than African peoples; given priority to NGOs, consultants, skilled labourers and development experts from developed countries over those from African and Caribbean countries; increased access of developed economies to African natural resources, cheap labour, and markets, rather than aided the development of African countries; burdened African taxpayers, economies, and societies with ever growing unsustainable and insurmountable debts; and in the process failed to empower African countries to become economically as well as politically sovereign and self-determined.

The Bank’s virulent racism, which has segregated and marginalised Black people in its decision-making governance architecture, has left the fate of Africa to white supremacy

The Bank’s own economic and social data serves as its report card, showing the pillaging and devastation of Africa.

This racism must end.

Black debt bondage

The systemic anti-Black racism of the World Bank and its sister institution the IMF is holding African and Caribbean countries in debt bondage. As the Heritage Foundation has demonstrated with hard data, “most long-term recipients of World Bank money are no better off than they were when they received their first loan. Many are actually worse off”.

This is not least true of African countries that face the highest costs of borrowing in the world when compared to their fiscal and economic capacities.

The vicious cycle of African and Caribbean countries having to borrow to stay afloat rather than develop, while sinking further into debt without any hope of ever repaying it, has recently been demonstrated by the COVID-19 pandemic emergency loans that they have taken from the World Bank and the IMF. Although African countries seem to have among the lowest infection rates in the world, most COVID-19 emergency loans from the World Bank have gone to African countries. In addition, African countries have taken emergency loans from the IMF to the tune of US$7.5 billion.

The World Bank is perpetuating racism institutionally and globally and is a knee on the neck of Black people around the world.

This racism must end.

Racism in the World Bank as a workplace

Racism is also a problem in the World Bank as a workplace. Since 1979, 17 World Bank reports have documented that anti-Blackness (Afriphobia) in the institution is “systemic”. A 1998 World Bank report revealed that some managers with “cultural prejudice” against Black people “rated Africans as unsophisticated and inferior”. There is no reason to believe that such attitudes no longer prevail. The Bank’s former Senior Advisor for Racial Equality revealed in 2005 that his office “received and reviewed over 450 cases of racial discrimination in five years”. This is 90 complaints per year, amounting to nearly two complaints per week, excluding weekends and holidays. All cases were summarily dismissed.

Although African countries seem to have among the lowest infection rates in the world, most COVID-19 emergency loans from the World Bank have gone to African countries

Over a dozen studies, including those by the US government, the World Bank and the World Bank staff association, have pointed out that claimants of racial discrimination are denied due process. A 2015 29-page report by nine American Civil Rights Organizations documented with detailed evidence that the World Bank has “different judicial standards for Blacks and non-blacks”.

Another 2015 World Bank report, A Strategic Review of Current Diversity, Inclusion, and Racial Relations Issues Related to the World Bank Group Workforce, found that the Bank’s race relations is one to two degrees removed from apartheid.

On a graduating scale of 1 to 6—where 1 represents an apartheid-like system and 6 signifies racial equality—the official report found the World Bank “hovering between 2 and 3”. The report further revealed that Black staff members consider the World Bank “apartheid-like” where Blacks are kept at the bottom of the pile.

An outstanding racial discrimination case involving an Ethiopian economist and former World Bank staff member, Dr Yonas Biru, has become a symbol of the Bank’s institutional racism. Even two current members of President Trump’s Cabinet, Housing and Urban Development Secretary Dr Ben Carson and former Attorney General of Virginia,Ken Cuccinelli, have condemned the injustice against Dr Biru respectively as evidence of a “lack of humanity” and the “systematic destruction of the dignity of a human being”. As documented in numerous newspaper articles and independent reports, Dr Biru’s professional accomplishments were “retroactively downgraded” after the World Bank deemed them “too good to be true for a black man”. To this day, his case has not been resolved, even after the World Bank’s own 2015 official report found it to be a “blatant and virulent case of racism”.

The World Bank is perpetuating racism institutionally and globally and is a knee on the neck of Black people around the world

Despite its very well documented and pervasive institutional anti-Black racism (Afriphobia), the World Bank seems bent on maintaining the status quo while hand-waving and window-dressing for the public. In a recent letter to President Malpass dated July 31 2020, leaders of the World Bank and the International Monetary Fund Staff Association complained about the Task Force that the President has organised to address the internal demands for reform triggered by the George Floyd protests. They stated that the under-representation of African Americans in the Task Force is a “tacit dismissal of our voices and a missed opportunity to include the experiential knowledge African Americans would bring to the important process of laying out a framework that could begin ending racism at the World Bank Group”.

This racism must end.

Four steps towards ending racism at the World Bank

First, the World Bank should, in collaboration with African, Caribbean and other developing countries, civil society across the world and the UN, resolutely seek to dismantle its legacies of colonialism and racism by establishing an independent review mechanism with the purpose of periodically reviewing and advising on the structures and activities of the World Bank with a view of halting and repairing these legacies and ensuring that the World Bank supports an equitable, democratic and sustainable international order. This is in line with the Sustainable development Goals and the many resolutions that have been passed by overwhelming majority votes in recent years by the UN General Assembly and Human Rights Council towards a new international economic order and an equitable and democratic international order. It is also in the spirit of the ongoing UN International Decade for People of African Descent 2015-2024. Such an independent review mechanism could be discussed and deliberated at the forthcoming 15th UN Conference on Trade and Development (UNCTAD15), which will be held in Barbados in April 2021.

Despite its very well documented and pervasive institutional anti-Black racism (Afriphobia), the World Bank seems bent on maintaining the status quo

Second, future leaders of the World Bank should be democratically elected based on democratic and equitable selections of candidates. The Bank’s voting right allocation should be restructured taking into consideration two factors: equal voice between developed and developing nations and equitable distribution by regions. President Malpass, the UN and the world community should be mindful that such reform is among the Sustainable Development Goals. The Declaration for the 2030 Agenda for Sustainable Development affirms that,

We acknowledge the importance for international financial institutions to support, in line with their mandates, the policy space of each country, in particular developing countries. We recommit to broadening and strengthening the voice and participation of developing countries—including African countries, least developed countries, landlocked developing countries, small island developing States and middle-income countries—in international economic decision-making, norm-setting and global economic governance.

Further, Sustainable Development Goal 10.6 calls for “enhanced representation and voice for developing countries in decision-making in global international economic and financial institutions in order to deliver more effective, credible, accountable and legitimate institutions”, whereas 16.8 sets out to, “Broaden and strengthen the participation of developing countries in the institutions of global governance”.

Third, debt forgiveness must be effected for African and Caribbean countries. This is also in line with the Sustainable Development Goals. It is also part of the 10-point plan for reparatory justice of the Caribbean Community (CARICOM) 15 Member States. Centuries of domination, economic exploitation, colonialism, enslavement and systemic racism have left African and Caribbean states in debt, economic and social dire straits without redress.

Finally, an independent mechanism for access to justice must be established at the World Bank. The World Bank must grant whistleblowers and racial discrimination litigants access to external arbitration outside of the World Bank’s internal justice system. Recognising the fact that, since 1998, over a dozen US government, World Bank, World Bank Staff Association and external reports have found that victims of racial injustice and whistleblowing retaliation are denied due process by the internal justice system, the World Bank must meet this demand without delay.

The World Bank must overhaul itself and its relationship to Black people. It must put an end to its systemic anti-Blackness (Afriphobia) and take steps towards halting and reversing centuries of domination, exploitation and oppression of Black people.

Without such resolute actions, its public call for justice for George Floyd, along with a false claim that “racial discrimination and social injustice have no place” in the World Bank, is disingenuous.


This article is an abdriged version of an open letter penned by Civil society organisations to the President of the world bank, David Malpass. You can read the original here

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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
Photo: Flickr/GovernmentZA
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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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