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Food Crimes: Why WFP Doesn’t Deserve the Nobel Peace Prize

9 min read.

The UN’s food assistance agency has neither improved conditions for peace in conflict-affected countries nor prevented the use of hunger as a weapon of war. On the contrary, it is responsible for prolonging conflict in some countries and suppressing local food production in others.

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Food Crimes: Why WFP Doesn’t Deserve the Nobel Peace Prize
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Those who believe that food aid does more harm than good were probably flabbergasted by the decision by the Norwegian Nobel Committee to award this year’s Nobel Peace Prize to the World Food Programme (WFP) for “its efforts to combat hunger, for its contribution to bettering conditions for peace in conflict-affected areas and for acting as a driving force in efforts to prevent the use of hunger as a weapon of war and conflict”.

Fredrik S. Heffermehl, a Norwegian lawyer and long-time critic of the political and bureaucratic processes behind the awarding of the Nobel Peace Prize, for instance, stated: “We recognise the great value of the World Food Programme, but the 2020 prize is much less ambitious than [Alfred] Nobel’s idea of ‘conferring the greatest benefit to humankind’.”

Mukesh Kapila, a former United Nations representative to the Sudan who blew the whistle on atrocities committed by the Sudanese government in Darfur, and who is now a professor of global health and humanitarian affairs at the University of Manchester, was even more scathing. “It’s a bizarre choice, and it’s a complete waste of the prize, in my opinion,” he told Devex. “I don’t think the World Food Programme needs this money, and I really object to awarding prizes to people or organisations who are just doing their paid jobs.”

Apart from the fact that WFP’s raison d’être is to deliver food to vulnerable populations, and its staff are paid generously to deliver food aid, critics who know the food aid business have in the past pointed out that food aid is, in fact, detrimental in the long run because it suppresses local food production, making it harder for poor or conflict-ridden countries to feed themselves. In fact, studies have found that direct cash transfers are a much more efficient and effective method to alleviate hardship and improve the overall welfare of beneficiary communities.

A few years ago, none other than the European Union (EU)’s representative to Somalia, Georges-Marc André (now retired), admitted this to me when I was researching for my book War Crimes, which explores how foreign aid has negatively affected Somalia. He told me that United Nations agencies such as WFP might have actually “slowed down” Somalia’s recovery by focusing exclusively on food aid instead of supporting local farmers and markets. “The EU is against food aid that substitutes local food production,” he said.

His views are also shared by Michael Maren, a former food aid monitor for the United States Agency for International Development (USAID) in Somalia, whose book, The Road to Hell: The Ravaging Effects of Foreign Aid and International Charity, chronicles how aid became a political tool in Somalia that was manipulated by both the donors and the recipient country. Maren, who lived and worked in Somalia in the 1980s, believes that food aid to Somalia may have actually prolonged the civil war in the country. “I had learned to view development aid with skepticism, a skill I had hoped to put to good use to help ensure that aid projects, at worst, didn’t hurt people. But Somalia added a whole new dimension to my view of the aid business. My experience there made me see that aid could be worse than incompetent and inadvertently destructive. It could be positively evil,” he wrote.

In his book, Maren quotes a former civil servant working for Somalia’s National Refugee Commission during President Siad Barre’s regime who told him that traditionally, Somalis never relied on food aid, even during droughts. There was a credit system; pastoralists would come to urban areas where they would take out loans that they would repay when things returned to normal. Aid essentially destroyed a centuries-old system that built resilience and sustained communities during periods of hardship.

Food aid hurts local farmers

Food aid also suppresses local food production. Many Somali farmers have reported that NGOs working with WFP are notorious for bringing in food aid just before the harvest, which brings down the price of local food. They have also complained that the food aid is imported, rather than bought locally. At the height of the famine in Somalia in 2011 (which many believe was exaggerated by the UN), for example, WFP bought food worth £50 million from Glencore, a London-listed commodities trader, despite a pledge by the UN’s food agency that it would buy food from “very poor farmers who suffer because they are not connected to local markets”.

Let us be clear about one thing – food aid is big business and extremely beneficial to those donating it. (“Somebody always gets rich off a famine”, Maren told Might Magazine in 1997.) Under current United States law, for instance, almost all US food aid (worth billions of dollars) must be purchased in the US and at least half of it must be transported on US-flagged vessels.

Aid essentially destroyed a centuries-old system that built resilience and sustained communities during periods of hardship.

Most of this food aid is actually surplus food that Americans can’t consume domestically. Under the US government’s Food for Peace programme (formerly known as Public Law 480), the US government is allowed to sell or donate US food surpluses in order to alleviate hunger in other countries. Famines in other countries are, therefore, very profitable to the US government and to highly subsidised American farmers, who benefit from federal government commodity price guarantees. (Interestingly, since 1992, all WFP Executive Directors have been US citizens. This could be because the US is the largest contributor to WFP, but it could also be that the Executive Director of the UN’s food agency is expected to promote US policies regarding food aid.)

In a 1988 paper titled “How American Food Aid Keeps the Third World Hungry”, Juliana Geran described Food for Peace as “the most harmful programs of aid to Third World countries”, and urged the US government to discontinue it. She noted that US food aid often distorts local markets and disrupts agricultural activity in recipient countries.

For example, massive dumping of wheat in India in the 1950s and ‘60s disrupted India’s agriculture. In 1982, Peru “begged” the US Department of Agriculture not to send any more rice to the country as it was feared that the rice would glut the local market and drive down food prices for farmers who were already struggling. “But the US rice lobby turned up the heat on Washington and the Peruvian government was told that it could either take the rice or receive no food at all,” wrote Geran.

But what happened in Guatemala was truly catastrophic, as Geran narrates: “In 1976, an earthquake hit Guatemala, killing 23,000 people and leaving over a million homeless. Just prior to the disaster, the country had harvested one of the largest wheat crops on record, and food was plentiful. As earthquake relief, the US rushed 27,000 metric tons of wheat to Guatemala. The US gift knocked the bottom out of the local grain markets and depressed food prices so much that it was harder for villagers to recover. The Guatemalan government ultimately barred the import of more basic grains.”

Stealing food to aid militias

One of the most evident distortions caused by food aid (apart from the fact that farmers have no incentive to grow food when the market is flooded with free food) is the temptation to steal it. There have been reports of blatant theft of food aid under the not-so-watchful eyes of WFP. UN monitors have routinely reported the theft of food aid to Somalia, for example, but to no avail. In its 2010 report, for instance, the UN Monitoring Group on Somalia and Eritrea reported that local NGOs (known in development circles as “implementing partners”), WFP personnel and armed groups that controlled areas where food aid was being distributed were diverting up to half of the food. WFP vehemently denied these allegations, even though an Associated Press report the following year showed American, Japanese and Kuwaiti food aid being openly sold in Mogadishu’s markets.

It is also important to remember that WFP’s international staff usually do not distribute food directly in conflict or disaster zones; instead they hire local NGOs to do the work. Many of these NGOs are not vetted; in fact, in Somalia, some of them have even been linked to militias who act as “gatekeepers”, deciding who gets the aid and who doesn’t.

When Maren was in charge of monitoring food aid donated by the US government to refugees fleeing the Ogaden war of 1977-78, he found that about two-thirds of the food went missing. Trucks would arrive at the Mogadishu port, collect the food and disappear, never to be found again. Even when food arrived at the refugee camps, much of it would be stolen.

Aid thus became a profitable source of income for criminal elements within Somalia. And Siad Barre learned to exploit this well. In fact, Maren believes that international aid not only sustained the dictator’s regime but also facilitated the unravelling of Somali society.

The looting of aid continued even after Barre was ousted in 1991. Battles between warlords were won or lost depending on how much aid each warlord had access to. However, it was not just the warlords who profited from food aid; corrupt NGO cartels also benefitted. Because many parts of Somalia were considered a no-go-zone by international humanitarian agencies, and therefore rendered inaccessible, enterprising Somalis formed NGOs that liaised with these agencies to provide humanitarian assistance and services on the ground. These businesses-cum-NGOs signed lucrative contracts with aid agencies; some controlled entire sectors of the aid industry, from transport to distribution. Others were run by warlords, who often diverted food aid, which was then sold openly in markets to fund their militias.

“By engaging with the warlords to ensure the delivery of aid, the United Nations and other actors only encouraged the spread of the conflict and the establishment of a thriving aid-based and black market economy,” wrote political scientist Kate Seaman in Globalizing Somalia: Multilateral, International and Transactional Repercussions of Conflicts. “In essence they became a party to the conflict, losing their neutrality and only serving to perpetuate the conflict by providing resources which were then manipulated by the multitude of armed groups operating within Somalia.”

Battles between warlords were won or lost depending on how much aid each warlord had access to. However, it was not just the warlords who profited from food aid; corrupt NGO cartels also benefitted.

When an international humanitarian agency comes in to provide food to starving people, bad governments are let off the hook, and are allowed to continue with their bad policies that can lead to more famines in the future. Internationalising the responsibility of food security to UN institutions, international NGOs and foreign governments makes practically everyone across the globe a stakeholder in famine relief. “The process of internationalisation is the key to the appropriation of power by international institutions and the retreat from domestic accountability in famine-vulnerable countries,” wrote Alex de Waal in his book Famine Crimes: Politics and the Disaster Relief Industry in Africa.

Bad management practices at WFP

If the Norwegian Nobel Committee had bothered to find out how WFP staff view the organisation they work for, it might not have been so quick to award WFP the prestigious Nobel Peace Prize. Like at many UN agencies, senior staff at WFP have been accused of abusing their authority, an allegation that has tarnished this Rome-based agency’s reputation. A confidential internal WFP survey of staff attitudes (whose findings were first leaked to the Italian Insider, and then to other news organisations, such as Foreign Policy in October last year) found that 35 per cent of the more than 8,000 WFP employees surveyed reported experiencing or witnessing some form of abuse of authority, the most typical being the granting of “preferential treatment” for recruitment to close associates.

“The senior leadership of the World Food Program – once one of the most highly regarded United Nations agencies – have abused their authority, committed or enabled harassment, discriminated against women and ethnic minorities, and retaliated against those who spoke up in protest,” wrote Colum Lynch in Foreign Policy on 8 October 2019.

What was evident in the survey was that WFP, like the rest of the UN, is extremely hierarchical and authoritarian. Respondents admitted that senior managers “aimed to further their own self-interest rather than the mission of WFP, and abuse their power to further themselves and their favorites”.

Moreover, 29 per cent of those surveyed said they had witnessed some form of harassment, while 23 per cent said they had encountered discrimination. Some 12 per cent of staff said they had experienced some form of retaliation for speaking up about abusive practices (which is fairly common in the UN, where protection for whistleblowers is virtually non-existent, as I have illustrated here). An even more alarming finding was that 28 of the WFP employees interviewed had experienced “rape, attempted rape or other sexual assault” while working at the agency.

What was evident in the survey was that WFP, like the rest of the UN, is extremely hierarchical and authoritarian. Respondents admitted that senior managers “aimed to further their own self-interest rather than the mission of WFP, and abuse their power to further themselves and their favorites”.

The results of the WFP survey (which was conducted by an independent management consultancy) are consistent with other UN surveys on staff attitudes and experiences. Results from a UN Staff Union survey conducted in 2018 in response to the #MeToo movement showed that sexual harassment made up about 16 per cent of all forms of harassment at the UN; 44 per cent of those surveyed said that they had experienced abuse of authority and 20 per cent felt that they had experienced retaliation after reporting misconduct. The survey also found that a large number of staff members’ complaints were never investigated.

It is, therefore, difficult to understand why the Norwegian Nobel Committee found it fit to award WFP the Nobel Peace Prize, given that the UN’s food agency has failed to adhere to almost all best practices in human resources management, and has not done enough to protect those who report internal abuse or wrongdoing. Nor has WFP improved conditions for peace in conflict-affected countries or prevented the use of hunger as a weapon of war, as I have illustrated above.

What then could have motivated the Committee to award WFP the prestigious Nobel Peace Prize – apart from some misguided notion that what the world needs most right now is food hand-outs? In a world that is being ravaged by the coronavirus pandemic, increasing xenophobia, racism and sexism, a global recession and climate change (all of which threaten peace and security), couldn’t the Committee have picked a more worthy candidate?

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Rasna Warah is a Kenyan writer and journalist. In a previous incarnation, she was an editor at the United Nations Human Settlements Programme (UN-Habitat). She has published two books on Somalia – War Crimes (2014) and Mogadishu Then and Now (2012) – and is the author UNsilenced (2016), and Triple Heritage (1998).

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Kenneth Kaunda: The Founding President of Zambia

Independence leader who fought white rule and helped shape postcolonial southern Africa

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

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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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