Some days are simply unforgettable. Thursday, 31st March, 2005, was one of them. I was a United Nations press officer back then, and terribly proud of being paid to help make the world a better place. Working at the UN headquarters in New York felt like entering Plato’s Ideal City, where realpolitik mixes with utopia. Despite its failures, I still had faith in the organisation’s willingness to make a difference in people’s lives. I used to think the UN’s imperfections were humane, and “out of the crooked timber of humanity no straight thing was ever made”, as Immanuel Kant put it.
On that Thursday, a colleague and I at the French desk of the Press Release Section were asked to cover a “historic” meeting. The UN Security Council was considering the referral of the horrific crimes committed by the regime of President Omar al-Bashir in Darfur to the International Criminal Court (ICC). The meeting kept being delayed all day long. We were told that behind the closed-door, tense deliberations were raging. In Darfur, the victims, yearning for justice, were holding their breath, as many feared China would block the resolution to protect its client-regime of Bashir.
Late that night, at around 22:30 hours, we had to rush off to the meeting. Finally, the vote was going to take place. As I was making my way to the Security Council room, I was rather surprised by the smell of alcohol and the overwhelming joy and delight manifested by a loud diplomatic crowd. I was shocked to learn that the much-awaited vote was delayed, not due to some “tense deliberations”, but because diplomats were indulging themselves at a dinner party with plenty of booze. The Brazilian mission had organised a party to celebrate its presidency of the Council on the last day of the month, as the UN tradition goes.
The diplomats took their seats around the horseshoe-shaped table and tried hard to wear a serious face on top of their alcohol-induced red one. One representative after the other took the floor, delivering speeches they sometimes struggled to read. But since the fun was still in the air, the permanent representative to the UN of the Philippines, Mr. Lauro Baja, cracked this joke about the third resolution on Sudan on that month, which he compared to the third child of the Security Council:
“There was a middle-aged couple who had two stunningly beautiful teenage daughters, but who decided to try one last time for the son they had always wanted. After months of trying, the wife became pregnant, and, sure enough, delivered a healthy baby boy nine months later. The happy father rushed to the nursery to see his new son. He took one look at him, but was horrified to find that he was the ugliest child he had ever seen. He went to his wife and said that there was no way that he could have fathered the child. ‘Look at the two beautiful daughters I fathered,’ he cried. Then he gave her a stern look, and asked, ‘Have you been fooling around?’ The wife smiled sweetly and said, ‘Not this time.’”
Before Mr. Baja wrapped up his joke, a ripple of laughter erupted in the room. Even the usually stern Kofi Annan flashed a smile. Regardless of the point Baja was trying to make about the legitimacy of the resolution, I felt that such humour was inappropriate. Unsurprisingly, the video of that session was never posted on the UN website. Some editors must have felt it lacked the minimum of decency to be shared with the public.
This incident made me question the seriousness of the Council. It also convinced me to leave the protocol-ridden and speech-oriented UN headquarters for the field. The following month, I embarked on an eight-year long journey in the field, across Iraq, Jordan, Sudan and Egypt. At the headquarters in New York, most of my work was limited to summing up delegates’ speeches. But, in the field, I had to generate stories and pitch them, speak to the media, organise media events and run public information teams. Whether serving at the UN Assistance Mission for Iraq (UNAMI), the UN-African Union peacekeeping mission in Darfur (UNAMID) or the UN Development Programme in Sudan (UNDP-Sudan), my work consisted of promoting what the UN does, and how and why it does it.
Before Mr. Baja wrapped up his joke, a ripple of laughter erupted in the room. Even the usually stern Kofi Annan flashed a smile. Regardless of the point Baja was trying to make about the legitimacy of the resolution, I felt that such humour was inappropriate.
I enjoyed working with people from around the world, from Fiji to Chile. Bringing people from different places to work together is the best thing the UN does. Perhaps each staff had her or his own reason for joining the organisation. Some enrolled for the generous paycheck, others for the organisation’s ideals, and still others, including myself, wanted it all: the paycheck and the good conscience. But my experience in Iraq and Sudan taught me I couldn’t have it both ways. It also taught me a great deal about the double face of the organisation, the bright and the ugly one.
In Iraq, UNAMI staff worked hard with the Iraqi civil society to track and expose human rights violations, promote the freedom of the press, champion women’s, children’s and minorities’ rights and promote good governance, but their work kept being blocked by UNAMI itself. While working to expand people’s rights and freedoms in Iraq, UNAMI was also empowering the US-installed Shiite Prime Minister Nouri al-Maliki, the main perpetrator of human rights violations in the country and the prime obstacle to good governance. UNAMI, under the leadership of the German diplomat, Martin Kobler, helped the US and Iran’s man in Baghdad take the country from chaos to tyranny and terrorism.
Soon after he took office on October 2011, Kobler told a meeting I attended: “Al-Maliki said that the only thing he wanted UNAMI to do in Iraq is to help shut down Camp Ashraf. And this is what we are going to do.” Maliki’s plan was to force some 3,400 unarmed Iranian dissidents out of the camp, where Saddam Hussein (whose death warrant was signed by Al-Maliki in December 2006) had hosted them since 1986. He wanted them transferred to a location near Baghdad’s International Airport, and then out of the country. This was none of UNAMI’s official business, but it would soon become one.
While working to expand people’s rights and freedoms in Iraq, UNAMI was also empowering the US-installed Shiite Prime Minister Nouri al-Maliki, the main perpetrator of human rights violations in the country and the prime obstacle to good governance.
Kobler was acting under the instructions of Lynn Pasco, the American chief of the UN Political Department in New York. Pasco was implementing American foreign policy, using UNAMI and other political missions. Since Exon Mobile was thriving in Iraq, al-Maliki had to be pleased and appeased. This meant that the transfer of the Iranian dissidents had to take priority over the inclusiveness of the Iraqi political process and other urgent matters, the raison d’être of UNAMI’s presence in Iraq.
The only opposition Kobler faced was from us, the mission staff. Throughout my UN career, I had never seen so many colleagues intensely opposing their chief as in Iraq. “I am a lawyer and I am telling you: don’t sign the damn thing [memorandum of understanding],” a senior colleague shouted at Kobler’s face in a desperate effort to stop him from making us do al-Maliki’s dirty work. We wanted him to focus on helping Iraq, but our call fell on deaf ears. The fate of Iraqis was sealed in New York.
While UNAMI and the UN’s refugee agency, UNHCR, were busy transferring the Iranian mujahideen from Camp Ashraf to Camp Liberty, al-Maliki was firming his grip on the power he had grabbed, thanks to Iran’s maneuvering and the consent of the administration of President Barack Obama. Nothing could’ve been worse for the Iraqi people than the UN looking the other way when the US was offering al-Maliki a carte blanche to violate the Iraqi Constitution, wreak havoc on the newly formed institutions, and cleanse or disenfranchise Sunnis from Iraqi politics (which ultimately drove the most disenchanted ones into the arms of Al Qaeda and the so-called Islamic State).
All along, Kobler was acting as one al-Maliki’s top aides. As the deputy chief of the Public Information Office, I found myself disagreeing with him, but often failing to stop his propaganda. My frustration had reached unbearable levels when I was head-haunted for the post of the spokesperson for UNAMID in Darfur in western Sudan. I didn’t hesitate to accept the offer, as I couldn’t imagine the UN appeasement of criminal regimes could get worse.
Soon after I arrived in Darfur in August 2012, I finally got the Philippines representative’s joke. The Security Council was a laughing matter. The many resolutions on Darfur signed off by Russia, China, France, Britain and the United States – the five permanent veto-holding members of the UN Security Council, also known as the P-5 – had degenerated into a farce. For each of these big powers, President Omar al-Bashir was a good client-regime that had to stay. But faced with mounting international outrage, the P5 had to be seen taking many steps against Khartoum. In reality, each step was purposely flawed, allowing al-Bashir to remain in power and get away with mass murder.
The farce started in 2004, when the Council “demanded” that the Sudanese government disarm the Janjaweed militias who were raping and killing civilians in Darfur and bring their leaders to justice or face “further actions”. One year later, al-Bashir began integrating most of his Janjaweed death squads into the armed forces, handing them heavier weapons and a license to kill civilians. In reaction, the Council’s threat of “further actions” turned out to be a partial and flawed arms embargo that allowed Khartoum to buy weapons, and use them in the entire country, except the western region. Obviously, without any mechanism to enforce this ridiculous arms embargo, Chinese and Russian weapons continued to flow into Darfur, in violation of these two countries’ own resolution!
Continuing this charade, the Council referred the situation in Darfur to the ICC in 2005. Al-Bashir and other suspects were later indicted for genocide, crimes against humanity and war crimes. However, in the absence of a mechanism to secure their arrest, al-Bashir (who was toppled in April last year) and his aides are yet to face justice at the Hague, even though al-Bashir has been charged and sentenced for corruption in a Sudanese court.
For each of these big powers, President Omar al-Bashir was a good client-regime that had to stay. But faced with mounting international outrage, the P5 had to be seen taking many steps against Khartoum. In reality, each step was purposely flawed, allowing al-Bashir to remain in power and get away with mass murder.
The last step of this farce was the 2007 Council decision to send UNAMID, the largest-ever toothless peacekeeping force, to Darfur. Al-Bashir only accepted this decision after the P5 caved in to his main condition: that UNAMID had to be drawn principally from African nations. This meant that Khartoum could kill, injure and humiliate African peacekeepers with absolute impunity. The Council also accepted a shameful Status of Forces Agreement (SOFA) agreement that put the genocidal Sudanese government in charge of the protection of UNAMID personnel. This is how immoral and farcical the P5 could get.
The eight months I spent in Darfur were long enough to convince me to resign and expose the UN’s systematic cover-up of the deadly bombing, mass assault on civilians, rape and forced displacement (mainly committed by Sudanese government forces), along with the daily harassment, humiliation and deadly assault on UNAMID peacekeepers. By April 2013, I had had enough of the UN’s hypocrisy. On the one hand, it claims to protect the people, help democratise societies, ensure respect of human rights and many other noble causes I still believe in. But, on the other hand, the essence of the UN’s work is to serve the P5 and their allies in their respective “spheres of interest” – a new euphemism for the former colonial concept of “spheres of influence”. This often entails shielding criminal and corrupt Third World governments. With one face, the UN caters to the people of the world, and with the other it serves first and foremost the P-5 governments. It’s “We the peoples” utopia versus “We the governments” reality.
The conclusion I reached is that what I witnessed in Iraq and in Sudan cannot be blamed on a few bad apples, or the poor performance of UNAMI and UNAMID. The problem was much bigger and ran much deeper in the system. It was a policy issue that starts in New York, at the UN Security Council. The colluding P5 have been using the UN to salvage their client-regimes facing threats from internal democratic forces and/or armed rebellion. They are also using it to throw the regimes that don’t know how to accommodate them, as happened in Côte d’Ivoire. France had had enough of Laurent Gbagbo’s rebellion and planned to install its new protégé, Hassan Ouattara, through the 2011 election. When Gbagbo lost the election but refused to quit, France dragged UN forces and weaponry into a joint bombing of his palace. It blatantly used and abused the UN for a “humanitarian” regime change to save the interests of its multinational corporations in its former colony.
But the Big Five could not have done it without a network of diplomats, including Western “democrats” like Kobler, who cherish democracy and peace in their own countries, but sustain dictatorship regimes across the world. Kobler is an excellent example of the UN’s revolving door politics. Once he accomplished his American-Iranian mission in Iraq, he was rushed to DR Congo in 2013 to head a 26,000- strong force and wage a UN war against armed militias on behalf of the government of Joseph Kabila. Under the Kabila family, the P5 countries had full access to the country’s precious reserves of diamonds, gold, cobalt, uranium and, of course, oil and related business. They had to protect the regime that accommodated their economic interests in return.
The conclusion I reached is that what I witnessed in Iraq and in Sudan cannot be blamed on a few bad apples, or the poor performance of UNAMI and UNAMID. The problem was much bigger and ran much deeper in the system. It was a policy issue that starts in New York, at the UN Security Council.
Having defeated some rebel groups for Kabila, Kobler headed to Libya, another oil-rich country the P5, under NATO, had bombed, in another “humanitarian” regime change. Kobler’s new mission consisted of installing in the capital Tripoli an Islamist government made up of militia leaders that would capture state funds and institutions. By imposing this UN-supported rebel faction against the resistance of others, the UN became a party in the Libyan conflict.
It’s precisely in Libya where one could see how the P5 are nothing but the world’s most dangerous gang and top arms’ producers and traders. Following his resignation, the UN envoy in Libya, Ghassan Salame, revealed that most of the Security Council members gave the retired Lieutenant Haftar the green light to militarily attack the very Tripoli-based government they had installed and claimed to support. When an intergovernmental organisation reaches such levels of hypocrisy and immorality, it simply needs to be resisted, scrapped and dismantled, instead of being reformed. Since the Security Council cannot be reformed – unless one thinks it’s possible to convert Dracula or Jack the Ripper into a saint – it has to go. And We the People can build another one, a better one.
My UN journey undoubtedly broke the blind trust I used to have in others. I learned to be more sceptical, without being cynical. This journey showed me my own limitations, flaws and mistakes too. I realised how big the gap is between who I am and the person I truly want to be.
I also learned to compromise on many things except two: Goodness and Truth. Truth “has been, is, and will be beautiful”, Tolstoy said.
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Kenneth Kaunda: The Founding President of Zambia
Independence leader who fought white rule and helped shape postcolonial southern Africa
This piece was originally published in the Financial Times and is republished in the Elephant with the express permission of the author.
Kenneth Kaunda, Zambia’s founding president who has died aged 97, was a towering figure of African nationalism and the anti-colonial independence movement that swept the continent in the 20th century. For his 25 years in office he fought apartheid, yet was more a victim of southern Africa’s white minority regimes than an instrument of their collapse.
After taking office at independence in 1964, Kaunda banned all political parties except his United National Independence party in 1972. In 1991 he reluctantly conceded multi-party elections, in which he was soundly defeated. Nonetheless, Kaunda ruled Zambia with a rare benevolence in an era of dictatorships and systematic abuse of human rights. His Christian faith, together with socialist values, was at the heart of his doctrine of “Zambian humanism”.
At home, his policies were little short of disastrous economically. Zambia’s all-important copper mines were nationalised shortly before a fall in the commodity’s price, while industries were taken over by an administration short of managers — the country had only a dozen university graduates at independence in 1964 — and newly created state-owned farms proved a failure.
Abroad, his influence never quite matched his rhetoric. He denounced white rule but was inhibited by landlocked Zambia’s dependence on trade through neighbouring Rhodesia and apartheid South Africa. Closure of the border with Rhodesia left his country dependent on a road to the Tanzanian port of Dar es Salaam for its fuel imports. A Chinese-built rail link opened in 1975, but the line never met its potential.
Born at Lubwa Mission on April 28 1924 in what was then Northern Rhodesia, Kenneth David Kaunda was the eighth child of teacher parents. After secondary school he too became a teacher, but in 1949 he gave up teaching to enter politics. By 1953 he was secretary-general of the country’s African National Congress party. Impatient and ambitious, he formed his own party in 1958, which was banned a year later.
In 1960 he took over the leadership of the United National Independence party. It swept to victory in the independence election of 1964, ending Zambia’s legal status as a British protectorate. Almost immediately, Kaunda was confronted by the white Rhodesian rebels’ unilateral declaration of independence on November 11 1965.
For the next 15 years his political life was dominated by the Rhodesian bush war, which spilled over into Zambia. He provided a base not only for Joshua Nkomo’s Zimbabwe African People’s Union but South Africa’s own African National Congress, Namibia’s South West Africa People’s Organisation, the FNLA of Angola and Frelimo from Mozambique.
His frequent tearful warnings of regional cataclysm, invariably delivered while holding a freshly ironed white handkerchief, were heartfelt but ineffectual.
Historical and geographical realities left him with a weak hand.
His decision to keep the border with Rhodesia closed hurt Zambia far more than it did his neighbour, and its eventual reopening in 1973 was a humiliating climbdown. A meeting with John Vorster, prime minister of apartheid South Africa in 1975, achieved little, while his secret talks with Ian Smith, Rhodesia’s white minority leader, served only to sour relations with Nkomo’s rival, Robert Mugabe, who was to win the elections for an independent Zimbabwe in 1980.
Pro-independence events had also left Kaunda at a serious disadvantage. The huge Kariba hydroelectric dam was built on the Zambezi river that formed the boundary with Rhodesia. Its generator was on the south bank, leaving the latter in control of power supplies to Zambia’s copper mines.
Perhaps his finest hour came when he hosted the 1979 Commonwealth conference that helped pave the way to Rhodesia’s transition to an independent Zimbabwe. The highlight was a beaming Kaunda leading Margaret Thatcher around the dance floor.
Trade union-led pressure for an end to the country’s one-party system eventually became irresistible, and in 1991 he conceded to demands for the multi-party poll that led to his ousting.
One of his last public appearances was at the funeral of Nelson Mandela, where he attempted to get the crowd of mourners to join him in a rendition of “Tiyende Pamodzi” (let us pull together), a rousing Unip anthem sung at Unip rallies.
The response was an uncomprehending silence. Kaunda had become disconnected from the Africa that he, Mandela and others had worked to shape.
This piece was originally published in the Financial Times and is republished in the Elephant with the express permission of the author.
Cherry-Picking of Judges Is a Great Affront to Judicial Independence
Uhuru Kenyatta’s refusal to fulfil his constitutional duty to appoint and gazette JSC-nominated judges is a tyranny against the judiciary.
The 2010 constitution placed an onerous responsibility on the judiciary. That responsibility is to check that the exercise of public power is done in a manner that is compliant with the constitution. The constitution brought everyone, including the president – in both his capacities as the head of state and head of national executive – under the law. Hence, the judiciary has the final word when called upon to determine whether anything done or said to be done by anyone in the exercise of public power is constitutional.
To ensure that judges and magistrates can perform this task, the 2010 constitution created a strong architecture to secure judicial independence. In a nutshell, judicial independence simply means creating the necessary guardrails to ensure that judges and magistrates are and feel fully protected to make the right decision without fear of reprisal and that the judiciary has the facilities it needs to create an enabling environment to facilitate judges and magistrates’ abilities to undertake that core mandate. Ordinarily, the critical aspects of judicial independence include decisional, operational/administrative as well as financial independence.
Operational independence safeguards the ability of the judiciary to run its affairs without interference from other arms of government or from anyone else. Financial independence on the other hand ensures that the judiciary is well funded and fully in control of its funds so that its core duty (decision-making) is not frustrated by either lack of funds or the possibility of a carrot–and-stick approach where the executive dangles funding to extract the decisions it wants. In this regard, the constitution creates a judiciary fund and places it under the administration of the judiciary. Unfortunately, the national government and the treasury have continued to frustrate the full operationalisation of the judiciary fund.
Centrality of an individual judge’s independence
Importantly, the foundational rationale for judicial independence and its different facets is securing the decision maker’s (judge and magistrate) individual independence. This is commonly referred to as decisional independence. In the end, the judiciary exists for only one reason: to adjudicate disputes. In this regard, the person who is charged with decision making is the one who is the primary beneficiary of judicial independence. Of course, ultimately, everyone benefits from an independent judiciary.
Still, the constitution has specific and high expectation of the decision-maker, including that he or she makes decisions based only on an objective analysis of the law and the facts. The decision maker must not be mesmerised or cowed by power. He or she should never be beholden to power – in the present or the future. Simply put, under the constitution, a decision maker should never have to think about personal consequences that he or she may suffer for making a decision one way or another as long as that decision is based on an honest analysis of the law and the facts. Put a bit differently, the decision maker should never have to make (or even think of calibrating) his or her decision to please those in or with power – either within the judiciary or outside it – with the expectation that it will help him or her to obtain professional favours, promotion or to avoid reprisals.
And this is why Uhuru Kenyatta’s cherry-picking of who should or should not be appointed judge is the greatest threat to judicial independence in Kenya.
But first a quick word on what the constitution says about the process of selecting, appointing and disciplining judges.
Selection and disciplining of judges
Before 2010, the president played a controlling role in the selection of judges. This meant that the surest way to become and remain a judge was by being in the good books of the president and his handlers. The result was that the judiciary was largely an appendage of the executive – and could hardly restrain the abuse of public power by the president or other ruling elites. The 2010 constitutional provisions on the judiciary were deliberately designed to eliminate or highly diminish this vice.
The power to select judges was given to the Judicial Service Commission (JSC), a body representative of many interest groups, the president key among them. Constitutionally, the president directly appoints three of the 11 JSC members: the attorney general and two members representing the public. But with his usual ingenuity at subverting the constitution, Uhuru Kenyatta has added to this list a fourth – by telling the Public Service Commission (PSC) who should be its appointee. Regardless, while there are always endless wars to control the JSC especially by the executive, the many interests represented complicate a full takeover of the JSC by the executive or any other interests. And that is partly what the constitution intended to achieve. The law – which the court has clarified numerous times – is that once the JSC has nominated persons to be judges, the president’s role is purely ceremonial, and one that he performs in his capacity as head of state. He must formally appoint and gazette the appointment of the judges. No ifs, no buts.
This is why Uhuru Kenyatta’s cherry-picking of who should or should not be appointed judge is the greatest threat to judicial independence in Kenya.
In fact, the law further clarifies that not even the JSC can reconsider its recommendation once it has selected its nominees. There is a good reason for this unbendable procedure – it helps to insulate the process from manipulation especially once the JSC has publicly disclosed its judge-nominees. Still, the constitution preserves for the president, the JSC and citizens the option of pursuing a rogue nominee by providing the realistic possibility for the initiation of a disciplinary and removal process of a judge even after appointment if there are legitimate grounds for such action.
In this regard, the JSC also has the responsibility to discipline judges by considering every complaint made against a judge to determine whether there are grounds to start proceedings for removal. It is to be noted that the president has more substantive powers in relation to the removal of judges. This is because if the JSC determines that there are grounds for the removal of a judge, the president’s hand is mostly unrestrained with regards to whom he appoints to sit on the tribunal to consider whether a judge should be removed. Unfortunately, there is an emerging trend that indicates that Uhuru undertakes this task in a biased manner by subjectively selecting tribunal members who will “save” the judges he likes.
The injustice of cherry-picking
Now, back to the injustices of Uhuru’s cherry-picking of judges for appointment.
The injustice is horrific for both the appointed judges and those who are not appointed, especially those of the Court of Appeal. Under the 2010 constitution, you do not become a superior court judge by chance.. For High Court judges nominated to the Court of Appeal, this is earned through hard work, countless sleepless nights spent writing ground-breaking judgments and backbreaking days sitting in court (likely on poor quality furniture) graciously listening to litigants complain about their disputes all day, and then doing administrative work to help the judiciary keep going. All this while maintaining personal conduct that keeps one away from trouble – mostly of the moral kind. Magistrates or other judicial staff who move up the ranks to be nominated judges endure the same.
The injustice is horrific for both the appointed judges and those who are not appointed, especially those of the Court of Appeal
If ever there was a list of thankless jobs, those of judges and magistrate would rank high on the list. It is therefore completely unacceptable that a faceless presidential advisor – probably sitting in a poorly lit room with depressing décor and a constantly failing wifi connection, and who likely has never met a judge – can just tell the president, “Let’s add so and so to the list of judges without ’integrity’. And by the way, from the last list, let’s remove judge A and add judge Z”. Utterly unfeeling and reckless. Worse, the judge is left to explain to the world what his/her integrity issues are when he or she knows nothing about them.
Cherry-picking also creates a fundamental perception problem. Kenya’s Supreme Court has confirmed that perception independence is a critical element of independence. For litigants appearing before the judges who were appointed in cases involving the president or the executive, it will be hard to shake-off the stubborn but obviously unfair thought that the judge earned the appointment in order to be the executive’s gatekeeper. That is what minds do; they conjure up possibilities of endless, and at times, conspiracy-inspired thoughts. Similarly, those who appear before a judge who was left out will likely believe that the judge – who decides a case impartially but against the executive – is driven by the animus of non-appointment. And you can trust the president’s people to publicly say as much and even create a hashtag for it. Yet such perceptions (of a judge who is thought to favour or be anti-executive) are relevant because justice is both about substance and perception.
And that is the psychological tyranny of Uhuru’s unconstitutional action – for both the judges that have been appointed and to those who have not. It is, indeed, a tyranny against the judiciary and, in a smaller way, against all of us. Perhaps just as Uhuru intended it to be.
COVID-19 Vaccine Safety and Compensation: The Case of Sputnik V
All vaccines come with medical risks and Kenyans are taking these risks for their protection and that of the wider community. They deserve compensation should they suffer for doing so.
How effective is Kenya’s system for regulating new medicines and compensating citizens who suffer side-effects from taking them? Since March 2021, Kenya has been using the AstraZeneca vaccine supplied through COVAX to inoculate its frontline workers and the older population. This is available to the public free of charge, according to a priority list drafted by the Ministry of Health (MOH). The Pharmacy and Poisons Board (PPB) also approved the importation of the Sputnik V vaccine from Russia, which was initially available through private health facilities only at a cost of KSh8,000 per jab, before the MOH banned it altogether. However, there were reports in the media that the vaccine continued to be administered secretary even after the ban.
Although side effects are rare, we know that all vaccines come with certain medical risks. Kenyans taking vaccines run these risks not just for their own protection, but also for that of the wider community. The state has a responsibility to protect citizens by carefully controlling the distribution of vaccines and by ensuring that adequate and accessible compensation is available where risks materialise. These duties are enshrined in the constitution which guarantees the right to health (Article 43) and the rights of consumers (Article 46).
A system of quality control before the deployment and use of medicines is set out in the Pharmacy and Poisons Act the Standards Act, the Food, Drugs and Chemical Substances Act and the Consumer Protection Act. However, the controversy over Sputnik V in Kenya has cast doubt on the coherence and effectiveness of this patchwork system. Moreover, none of these Acts provides for comprehensive compensation after deployment and use of vaccines.
Vaccine approval and quality control
Subject to medical trials and in line with its mandate to protect global health, WHO has recommended specific COVID-19 vaccines to states. Generally, WHO recommendations are used as a form of quality control by domestic regulators who view them as a guarantee of safety and effectiveness. However, some countries rely exclusively on their domestic regulators, ignoring WHO recommendations. For instance, the UK approved and administered the Pfizer vaccine before it had received WHO approval.
The COVAX allocation system fails to take into account the fact that access to vaccines within countries depends on cost and income.
By contrast, many African states have relied wholly on the WHO Global Advisory Committee on Vaccine Safety given their weak national drug regulators and the limited capacity of the Africa Centre for Disease Control (CDC). The Africa CDC itself deems vaccines safe for use by member states on the basis of WHO recommendations. Kenya has a three-tier approval system: PPB, Kenya Bureau of Standards and WHO. The PPB relies on the guidelines for emergency and compassionate use authorisation of health products and technologies. The guidelines are modelled on the WHO guidelines on regulatory preparedness for provision of marketing authorization of human pandemic Influenza vaccines in non-vaccine producing countries. However, prior to approval by PPB, pharmaceuticals must also comply with Kenya Bureau of Standards’ Pre-Export Verification of Conformity standards .
Vaccine indemnities and compensation
To minimise liability and incentivise research and development, companies require states to indemnify them for harm caused by vaccines as a condition of supply. In other words, it is the government, and not manufacturers, who must compensate them or their families where required. Failure to put such schemes in place has undermined COVID-19 vaccine procurement negotiations in some countries such as Argentina. Indemnities can be either “no-fault” or “fault”-based’.
No-fault compensation means that victims are not required to prove negligence in the manufacture or distribution of vaccines. This saves on the often huge legal costs associated with tort litigation. Such schemes have had a contested history and are more likely to be available in the Global North. By contrast citizens of countries in the Global South must rely on the general law, covering areas such as product liability, contract liability and consumer protection. These are usually fault-based, and require claimants to show that the vaccine maker or distributor fell below widely accepted best practice. Acquiring the evidence to prove this and finding experts in the sector willing to testify against the manufacturer can be very difficult.
By default, Kenya operates a fault-based system, with some exceptions. Admittedly, citizens have sometimes been successful in their claims, as in 2017 when the Busia County Government was ordered by the High Court to compensate victims of malaria vaccines. The High Court held that county medics were guilty of professional negligence, first by not assessing the children before administering the vaccines, and second by allowing unqualified medics to carry out the vaccination.
The problem is that the manufacturer has not published sufficient trial data on the vaccine’s efficacy.
In recognition of these difficulties, and in order to ensure rapid vaccine development during a global pandemic, WHO and COVAX have committed to a one-year no-fault indemnity for AstraZeneca vaccines distributed in Kenya. This will allow victims to be compensated without litigation up to a maximum of US $40,000 (approx. KSh4 million). To secure compensation, the claimant has to fill an application form and submit it to the scheme’s administrator together with the relevant evidentiary documentation. According to COVAX, the scheme will end once the allocated resources have been exhausted. The scheme also runs toll-free telephone lines to provide assistance to applicants, although the ministries of health in the eligible countries are also mandated to help claimants file applications.
Beneficiaries of the no-fault COVAX compensation scheme are barred from pursuing compensation claims in court. However, it is anticipated that some victims of the COVAX vaccines may be unwilling to pursue the COVAX scheme. At the same time, since the KSh4 million award under COVAX is lower than some reliefs awarded by courts in Kenya, some claimants may avoid the restrictive COVAX compensation scheme and opt to go to court. Because such claimants may instead sue the manufacturer, COVAX requires countries to indemnify manufacturers against such lawsuits before receiving its vaccines.
Sputnik V is different. Neither the WHO-based regulatory controls before use, nor the COVAX vaccine compensation scheme after use applies. Sputnik has not been approved by WHO or the Africa CDC. The PPB approved its importation in spite of the negative recommendation of Africa CDC, and in the face of opposition from the Kenya Medical Association. The rejection of Sputnik in countries like Kenya is partly due to the reluctance of Russia’s Gamaleya Institute to apply for WHO approval, partly because the manufacturer has not published sufficient trial data on the vaccine’s efficacy, and partly due to broader mistrust of the intentions of the Russian state. This may be changing as Africa CDC Regulatory Taskforce and European Medicines Agency are now reviewing the vaccine for approval while 50 countries across the globe have either approved its use- or are using it already. In Africa, Ghana Djibouti, Congo and Angola have approved the use of Sputnik V with Russia promising to donate 300 million doses to the African Union. Such approvals have been hailed for providing an alternative supply chain and reducing overreliance on the West.
As regards compensation, Russia has indicated that it will provide a partial indemnity for all doses supplied. However, no clear framework has been set out on how this system will work. There has therefore been no further detail on the size of awards, and whether they will be no-fault or fault-based. This lack of legal specifics has added to the reluctance of countries around the world to adopt the vaccine.
As matters stand, therefore, the Kenyan government would not be able to indemnify private clinics importing and administering Sputnik V. The absence of a statutory framework on vaccine compensation by the state makes this possibility even less likely. Nor would compensation be available from the Gamaleya Institute. The only route then would be through affected citizens taking cases based on consumer protection legislation and tort law in the Kenyan courts. As we have noted, this is complex and costly. Claims might be possible in Russia, but these problems would be exacerbated by language barriers and differences between the legal systems, as well as the ambiguity of the Russian compensation promises.
The private sector can complement state vaccination efforts, but this must be done in a way that guarantees accessibility and safety of citizens.
Although the importers obtained a KSh200 million insurance deal with AAR as a precondition for PPB authorisation, the amount per claimant was restricted to KSh1 million, which is well below the WHO rates and the average tort rates ordered by Kenyan courts. As an alternative to claiming against the manufacturers and distributors, injured patients might sue the Kenyan government. Such a claim would allege state negligence and dereliction of statutory and constitutional duties for allowing the use of a vaccine that has not been approved by global regulators such as WHO, thus exposing its citizens to foreseeable risks. This would be particularly attractive to litigants given the difficulties in recovering from the Russian authorities and the risk that Kenyan commercial importers would not be able to meet all possible compensation claims. Ironically, the use of the Sputnik V vaccine in private facilities still exposes the government to lawsuits even if it didn’t facilitate the vaccine’s importation and distribution.
What the government needs to do
The acquisition of vaccines has been undermined by the self-interested “nationalism” of states in the Global North. Only after buying up the greater part of available vaccines have they been willing to offer donations to the rest of the world. These highly publicised commitments fall far short of what is required in the Global South. Kenya’s first task must be to intensify its diplomatic efforts to increase supply through bilateral engagement with vaccine manufacturing states and in multilateral fora like the World Trade Organization, acting in alliance with other African states. Such steps are only likely to bear fruit in the medium term, however. In the short term, it is certainly sensible to involve private companies in vaccine procurement and distribution in order to supplement the supplies available through COVAX. This is recognised in Kenyan and international law as an acceptable strategy for securing the right to health. But it must be done in a way that guarantees accessibility and the safety of citizens. Accordingly, Kenya should encourage Russia (and all vaccine manufacturers) to publish full trial data showing effectiveness and risks, and to seek WHO approval on this basis. It should require them to establish and publicise detailed indemnity frameworks to allow for comprehensive and accessible compensation. It should acknowledge that citizens accepting vaccines are not only protecting themselves, but also the wider national and global community. With adequate regulation before use, the risk of doing so can be minimised and made clearer. But some risk remains, and those who run it deserve to be compensated for doing so. It is therefore imperative for Kenya to establish its own no-fault indemnity scheme for all state-approved vaccines, including those imported by the private sector.
This article draws from COVID-19 in Kenya: Global Health, Human Rights and the State in a time of Pandemic, a collaborative project involving Cardiff Law and Global Justice, the African Population and Health Research Centre, and the Katiba Institute, funded by the Arts and Humanities Research Council (UK).
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