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Fractures and Tensions in the Anti-Racism Movement

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Continental Africans have a lot to learn from their African American cousins in relation to race politics and white supremacy, not least because the phases of oppression developed by white supremacists simply keep mutating.

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Fractures and Tensions in the Anti-Racism Movement
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Sometimes tensions between continental Africans and their African American brethren mount over trivial things due to their ostensibly deep-rooted differences. But really these differences ought not be so significant as to weaken the quest to confront and defeat racism wherever it is found. The deaths of Trayvon Martin, George Floyd and Breonna Taylor are all testimonies as to why white supremacy is so toxic.

African Americans are undoubtedly best equipped to read, analyse and deconstruct white supremacy, having been on the battle lines for over four hundred and fifty years. From centuries of slavery to Jim Crow segregation, systematic lynching, civil rights activism and disillusionment and the present age of mass incarceration, African Americans have seen it all, and continue to suffer the devastating effects of living in the trenches of institutionalised racism.

Being minorities in a white-dominated United States, contained in bleak urban ghettoes that are now undergoing steady gentrification, they also have to endure the traumas of constant police brutality. They are a community under siege on multiple fronts as their neighbourhoods are being decimated by fractured and disappearing families, targeted gentrification, mass incarceration, drug abuse and despair.

During the COVID-19 pandemic, death rates among African Americans have been disproportionately higher than other racial groups and this had led to considerable public outcry. Again, their position within American society demonstrates their obvious vulnerability. They are especially vulnerable not only to disease but also have relatively few means of redress.

The #BlackLivesMatter movement has received mixed reactions within the community as many argue that it lacks grassroots support and is being sponsored by white liberal donors and sympathisers. Since the era of Martin Luther King Jr., Malcolm X, Medgar Evers, Kwame Toure (formerly Stokely Carmichael) and Huey Newton, amongst others, there has not emerged a cohort of black leaders with the vision, commitment, sincerity and energy to match those illustrious forebearers.

After the civil rights movement of the 1960s, the assassinations of Malcolm and Martin, the penetration of radical activist groups by the FBI, and the heroin epidemic that blighted black neighbourhoods, the political momentum has arguably not been sustained.

Following the gains of the civil rights movement, Ronald Reagan and Bill Clinton further inflicted harm on the black community through a series of repressive legislation that birthed the age of mass incarceration, chillingly covered by the author and academic Michelle Alexander in her bestselling book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness.

The scourge of crack cocaine must also be added to this already malevolent social equation. Families and neighbourhoods were denuded of health, social services, stability and financial viability. Knowledge, wisdom, and wholesome experience were substituted with fear, paranoia and degeneracy.

Hip hop as a cultural form was in its ascendency, having managed to crawl out of the neglected borough of the Bronx. Just like funk, R&B and other black music forms, this particular genre also aspired to be therapeutic, or at least soul-lifting. For a while, it represented the angst and perplexities of the “hood”, and subsequently, the righteous rage of the bona fide political rebel. But after experiencing phenomenal success, it fizzled out in an anti-climactic tsunami of bling, bombast, shallow consumerism and toxic misogyny.

For the first time in recent memory, blacks were able to produce a music utterly devoid of soul meant to soundtrack the last days of an era indelibly marked by Babylonian excess and decadence. In South Africa, droves of no-talent copycats, seduced by the grand spectacle flashed by mainstream American hip hop, discarded their indigenous traditions and sheepishly adopted American mannerisms.

Hip hop as a cultural form was in its ascendency, having managed to crawl out of the neglected borough of the Bronx. Just like funk, R&B and other black music forms, this particular genre also aspired to be therapeutic, or at least soul-lifting.

A source of tension between Africans and African Americans is the type of black people who are admitted to the United States to live and work. Radical black Americans claim that since the supposedly unfavourable experiences of white supremacists with radicals, such as the redoubtable black pioneer Marcus Garvey, who was originally from Jamaica, and activist Kwame Toure, who came from Trinidad and Tobago, white supremacists in the US have been careful with the type of people they admit from the Caribbean and Africa. An argument is made by black American radicals that only those who readily support and uphold the tenets and institutions of white supremacy are now being admitted.

Those same black American radicals point to the fact that the first black president of the United States, Barack Obama – who is not considered a foundational black American (FBA) by any stretch of imagination – whose father was of Kenyan origin, did nothing for black folk but went out of his way to benefit the LGBTGI community and immigrants, particularly from Mexico and other countries in the region. Obama, they claim, was not accountable to black America, and did not want to be accountable because he had not been made by black America.

Kamala Harris, the current vice presidential candidate of the Democratic Party, has a father originally from Jamaica and an Indian mother. According to radical black Americans, Harris is bound to create the sort of problems they encountered with Obama. They argue that the ever-calculating white media attempts to present her as a credible political representative of black America because she apparently looks like them. But all similarities end there. The white media is trying to foist Harris upon the black electorate with claims that she attended Howard University, a historically black college. But black radicals are not having any of it.

Instead, they (black radicals) dug into Harris’s past professional conduct and discovered that as an attorney working for the state of California, she notched an alarmingly high rate of prosecutions, convictions and incarceration of black people. Indeed these frightening rates could only please white supremacists and not black folk. So black radicals claim that if she is voted into power under a Joe Biden ticket as vice president, black folk are not to expect anything better from her. Before they give her their vote and support, they are asking her for tangible deliverables.

As of this point, Harris isn’t talking. Black radicals claim the days of black political representatives receiving their vote merely because of the colour of their skin are long gone. They now preach the mantra of “tangibles” to any prospective black political representative.

On the question of political and cultural representation in the present culture of hoods created by blacks, there does not appear to be a music genre that can inspire and transform lives as in the days of yore. Policies and strategies of integration pursued by US governments (which were meant to fool everyone) in the wake of the civil rights movement deceive no one. The partiality, inequality, division and bigotry are there for everyone to see.

However, the lives and accomplishments of Nat Turner, Harriet Tubman, Ida B. Wells, Marcus Garvey and a host of other pioneers are not always accorded their rightful place in the American public mind. And only “woke” folk know the true meaning of Pan-Africanism.

Black radicals claim the days of black political representatives receiving their vote merely because of the colour of their skin are long gone. They now preach the mantra of “tangibles” to any prospective black political representative.

On the African continent, befuddled by disemboweled US hip hop culture and the hype of #BlackLivesMatter, we attempt to take hesitant steps towards the blinding glare, unsure of how to act or how we would be received. The derelict hoods of the US seem to mirror our own mismanaged and misgoverned countries, which have variously been described as failed states.

African Americans, on the other hand, are filing into Africa at encouraging rates, tracing their genetic ancestry back to the motherland, often settling permanently along the coast of West Africa, longing to ingest melanin-rich air indefinitely. Away from relatively melanin-deprived political and cultural environments, they genuflect before myriad departed ancestors in rituals of ineffable spiritual communion: “We have come home, receive us steadily into the ceaseless warmth of your unfathomable bosom.”

Lost African youth, on the other hand, see these rejuvenated American returnees and hear the conflicted sounds of Lil Wayne, Kid Cudi, Fetty Wap, ASAP Rocky and Lil Nas X and sense Eldorado, a tortuous and deadly path of escape from the Western media-created images of their insufferable hell holes.

On both sides, namely black America and Africa, mass confusion often abounds, creating expectations that remain largely unfulfilled and hungers that are unlikely to be satiated.

First, in the recent past, the Western media manufactured false narratives about the Dark Continent. Now, children of both black America and Africa often neglect to discover the real truth about their heritage, leaving them both to re-live the unimaginable horrors of their past anew, only that this time around, they are locked in mental prisons entirely of their own making.

Undoubtedly, continental Africans have a lot to learn from their African American cousins in relation to race politics and white supremacy. In this regard, a great deal of humility and restraint is required. As things stand, African Americans have too much on their plate already. The chameleonic properties of racism are remarkably protean. American society was built on the prolonged enslavement of blacks, hence the rise of American Descendants of Slaves (ADOS) activism. Then there was Jim Crow oppression and the destructive infiltration of the civil rights movement and other strategies of containment and suppression specifically targeting blacks.

Under the auspices of ADOS and its growing drive for social transformation and reparations for black Americans due to the multiple forms of suffering caused by slavery, the term African American is becoming obsolete. Black American, once fashionable and then passé, is returning as the appropriate term to call peoples of African descent in the United States. This group makes it abundantly clear that they are quite distinct from Africans and people from the Caribbean based in the US – a distinction that justifies their quest to secure the fruits of reparations. While initially it might prove to be a compact strategy for obtaining reparations, it blurs the Pan-Africanist vision and makes it arguably less potent. In this regard, ADOS, or foundational black Americans (FBA), as they now prefer to call themselves, may be viewed as somewhat shortsighted and unduly materialistic, which throws out of the window the accomplishments of the likes of W.E.B. Dubois, Marcus Garvey and John Henrik Clarke.

On the African continent, befuddled by disemboweled US hip hop culture and the hype of #BlackLivesMatter, we attempt to take hesitant steps towards the blinding glare, unsure of how to act or how we would be received. The derelict hoods of the US seem to mirror our own mismanaged and misgoverned countries, which have variously been described as failed states.

The phases of oppression developed by white supremacists simply keep mutating, refining tactile mechanisms of suppression even before their intended victims are able to anticipate them. These strategies have had centuries of experimentation to improve themselves. And then they possess false ideologies to camouflage themselves. Black resistance, on the other hand, is often reactive, kept on its hind legs, forever on the defensive due to the fact that oppressive mechanisms are constantly shifting. This is black America’s greatest challenge – to move successfully from a defensive posture to a proactive one while at the same time keeping in mind the many lessons learnt from centuries of struggle.

The Haitian Revolution, which birthed the first independent black country in the Western hemisphere, continues to be a shining example. In order to accomplish its success, it had to purge itself of its internal doubters and dissenters.

Currently, as mentioned earlier, black America has very few, if any, leaders within its ranks that possess undeniable mass appeal and grassroots support. It is also fractured by numerous ideological factions and tendencies that make it difficult to identify and pursue a cohesive agenda. Furthermore, the various institutions of racism have become more diverse and entrenched.

Nonetheless, all is not lost; true revolution has always been the art of the impossible and black America generally has proven itself, time and again, to be uncommonly resourceful and courageous.

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Sanya Osha is a philosopher, novelist and poet living in Pretoria, South Africa. His most recent publications include the novels, An Underground Colony of Summer Bees (2012), and On a Sad Weather-Beaten Couch, the volume of poetry, A Troubadour’s Thread (2013), and the work of scholarship, Dani Dabudere’s Afrikology (2018).

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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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