“Cities are the absence of physical space between people and companies. They are proximity, density, closeness. They enable us to work and play together, and their success depends on the demand for physical connection.” – Edward Glaeser, Triumph of the City (2011)
In February this year, just before the coronavirus pandemic forced the Kenyan government to impose a partial lockdown in the country, I moved to Kenya’s capital, Nairobi, a city with a population of 4.4 million, from Malindi, a small town along Kenya’s coast with a population of just 120,000. I had been intending to move back home for several years but 2020 seemed an opportune time to do it. I had spent ten long years in Malindi and was ready to get back to the thick of things where the action was.
Now I know, for most people who live in Nairobi, the city is not “home” – the “true north” of most Nairobians, as Alexander Ikawah pointed out in a recent article, is their rural home, the place they identify most with. Ikawah says that Nairobi is just a place where “city villagers” work; where they have “houses”, not “homes”.
But I am not among these people. I was born in Nairobi, and so was my father and my grandfather. Kenyan Asians don’t typically have a rural home (Asians in Kenya were not encouraged to settle in rural or agricultural land both before and after independence and so are concentrated mainly in urban areas). And even if they have an ancestral home in India or Pakistan, they don’t tend to refer to it as “home”, nor does this ancestral home loom large in their imagination. In fact, many Kenyan Asians have never visited their “motherland”.
I have lived in London in the UK and Boston in the USA, and have travelled to many, many, cities around the world – New York (my favourite city), Istanbul (a cultural delight where East meets West), Mogadishu (a wounded city with nice beaches), Kabul (wounded but with majestic snowy peak backdrops), Havana (a salsa-lover’s dream, arguably the world’s most egalitarian city), Paris (a romantic city with many bridges), Mumbai (a buzzing “maximum city” of people, people, and more people), Beijing (interesting but with high levels of air pollution), Cairo (history lives here), Florence (a beautiful outdoor museum), Johannesburg (a legacy of apartheid, not my favourite city), Dar es Salaam (a friendly coastal city with huge potential), to name a few – but for me, Nairobi is not only home, it is also the place where most of my memories reside.
I will not go into the details about my reasons for leaving Nairobi in the first place, but it had a lot to do with trying to regain some perspective on life after having led a busy treadmill-like work existence where career success depended so much on pleasing a boss and undermining colleagues to move up the career ladder. I was hoping that a break would allow me to do things I hadn’t had time for before, like writing and spending more time with my husband. I dreamed of looking out of the window and seeing palm trees swaying in the wind, and breathing in the salty Indian Ocean breeze. Oh what bliss (and it was)…until I discovered that meaningful social interaction was much more important to me than the sounds and smells of nature. Voluntary self-isolation, I discovered, is neither natural nor healthy. Human beings are wired to be social animals – that is how they survived as a species.
While living in a small sleepy town where nothing much happens gave me the freedom to pursue writing (I ended up writing three books during my self-imposed “exile”) and other interests, I had a gnawing sense that I was in danger of disconnecting and self-isolating myself from all that was meaningful in my life. I yearned for intellectual stimulation and missed cultural and literary events. I longed to go to the cinema and hang out with my family. My social interactions in Malindi were superficial; I was in danger of becoming like the many expatriate (mostly Italian and British) retirees in the town, whose lives revolve around bridge parties and afternoon siestas induced by copious amounts of wine.
The truth is, I was lonely. I had not found my “tribe” in Malindi.
Then COVID-19 happened. It is unfortunate that my return to Nairobi coincided with a dusk-to-dawn curfew and partial lockdown, so my intentions of absorbing myself into city life have once again have been put on hold. I am back to self-isolating again.
Cities are not the problem
The coronavirus pandemic has raised questions about whether cities will lose their allure, and whether people will look to leading simpler rural or small town lives. The fact that the virus emanated from the city of Wuhan in China and spread across the world through networks of cities and transport hubs is making people wonder whether we should be seeking more dispersed and less dense forms of settlement.
However, Tomasz Sudra, a former colleague who is now retired from the United Nations Human Settlements Programme (UN-Habitat), told me that it was unfair to blame cities for COVID-19 because the virus could have been contained early if the Chinese government had not decided to suppress “bad news”.
“The medical doctor who blew the whistle on the virus and died from it was forced to confess that he was spreading false news and was arrested,” he said. “The epidemic [in China] became a pandemic because the government suppressed the free flow of information.”
Cities have not only been associated with the rapid spread of diseases, but environmental degradation as well. The concentration of human and industrial activity in cities and the over-reliance on motorised forms of transport have been blamed for the air pollution that characterises so many of the world’s large cities. Images of smog-free cities as a result of lockdowns (especially in China, where air pollution levels are so excessive that city residents routinely wear face masks) have been circulating on social media. People are asking whether the climate crisis could be blamed on cities, and whether COVID-19 will force us to seek alternative lifestyles.
John Gray, writing in the 3 April 2020 issue of the New Statesman, says that the current crisis is a “turning point” in history. “The era of peak globalization is over. An economic system that relied on worldwide production and long supply chains is morphing into one that will be less interconnected. A way of life driven by unceasing mobility is shuddering to a stop. Our lives are going to be more physically constrained and more virtual than they were,” he predicts.
Is the city – itself a product of globalisation and the movement of goods and people from one shore or trading route to another – losing its attraction? Will there be a return to the nostalgic longing for rural life popularised by people like Mahatma Gandhi, who said that “true India” could only be found in the country’s villages? I don’t think so. The world, including India, is more urban than it was in Gandhi’s time. “True India” is no longer only in India’s villages, but in its teeming cities and towns, which currently host 34 per cent of the country’s population.
Just over a decade ago, there were more rural folk on this planet than city folk, but that changed around 2007 when the world’s urban population equaled the world’s rural population for the first time. Though some regions of the world, notably Europe, North America and Latin America, became predominantly urban much earlier (around the 1950s), the rapid urban growth rates in poorer parts of the world in the last fifty years have demonstrated that the pull of the city is stronger than ever. Cities must be offering something that villages don’t, or can’t.
I must confess that I have spent much of my professional life writing about what is wrong with cities and what can be done about it. At UN-Habitat, where I worked as an editor for more than a decade, the emphasis was on urban poverty and all its manifestations, including informal settlements (also known as slums). In 2006, UN-Habitat declared that one out of every three city dwellers lives in a slum, with sub-Saharan Africa having the largest proportion of its urban population living in slum conditions, with little or no access to water, sanitation, electricity and adequate housing. Asia hosted the largest number of slum dwellers, though some sub-regions in the continent were doing better than others. Slums, warned UN-Habitat, were threatening to become a “dominant and distinct type of settlement in cities of the developing world”.
This grim assessment was followed by another one in 2008, when UN-Habitat sounded the alarm on rising inequalities in cities, and warned that economic and social inequalities in urban areas had the potential to destabilise countries and make them economically unsustainable. Highly unequal cities – where the rich lead vastly different lives from the poor – are breeding grounds for social unrest, and social unrest disrupts economic activities, went the argument. UN-Habitat stated that pro-poor and inclusive urban development could significantly decrease these inequalities and make cities more sustainable. While the UN agency acknowledged that energy consumption in cities was impacting negatively on the environment, it made a case for mitigating the impact of carbon emissions through solutions such as environmentally-friendly public transport and the use of green energy.
Cities are not the problem; how we plan them is the central issue, said the experts.
The benefits of city life
Throughout history, cities have a played a central role in creating and sustaining civilizations. Cities are not just places where economic activities are concentrated, they are also crucibles of innovation and culture. The rise and fall of cities has often been associated with the rise and fall of civilizations. Cities such as Rome and Athens had their “golden ages”; some survived a loss of status; others became relics.
In 2006, I was asked to write a short chapter on the benefits of urban living for UN-Habitat’s 2006 State of the World’s Cities report, which focused almost entirely on the gloomy topic of slums. The thinking was that there was a danger that in highlighting the problems in cities and slums, we might inadvertently throw the baby out with the bath water and that as the UN’s “City Agency”, it would be counterproductive to focus only on the negative aspects of urban life. In other words, by presenting cities as places where nasty things happen, we might actually be sending an anti-urban message to the general public and to policymakers.
Because cities were – and still are – viewed as the engines of economic development, and economic growth is generally credited for reducing poverty levels (though this has not been the case in some countries), I had to make an argument that made economic sense to governments and the public at large. So I argued that because so much economic activity in a country is concentrated in its cities, “cities make countries rich”. I further pointed out that the concentration of populations and enterprises in urban areas greatly reduces the unit cost of piped water, sewerage systems, drains, roads, and other infrastructure. Therefore, the economies of scale that cities offer are not replicable in small, less dense human settlements. Building a hospital or a road in a town or village with a population of just 50,000 is far less efficient per capita than building a hospital or road in a large urban area that hosts a population of 5 million (regardless of the ethics of making such a choice).
The central argument was that rural people don’t just up and move to a city; the main driver of rural-to-urban migration is economic opportunities and the chance to lead a better quality of life. In almost all countries, rural poverty levels are higher than urban poverty levels. (For instance, the poverty rate in rural Kenya is about 40 per cent, compared to around 28 per cent in peri-urban and urban areas.) Indeed, the data showed that despite the pathetic and hazardous living conditions in slums, people who lived in slums often viewed them as a “first step” out of rural poverty. As Edward Glaeser, a Professor of Economics at Harvard University, says in his book, Triumph of the City: How Our Greatest Invention Makes Us Richer, Smarter, Greener, Healthier, and Happier, “Cities don’t make people poor; they attract poor people. The flow of less advantaged people into cities from Rio to Rotterdam demonstrates urban strength, not weakness.”
However, villages are not stagnant places either; some, like Mumbai, which was once a fishing village, grow to become megacities (defined as cities with populations of more than 10 million). Some cities, like Nairobi, were not even villages originally; Nairobi literally grew out of nothing except a railway depot built at the beginning of the 20th century. The world’s great cities did not only grow because they were centres of trade and commerce; they also grew because they were religious, political, administrative or cultural centres, and this is what drew – and continues to draw – people to them.
Many rural people move to cities because they believe that they and their families will have better access to health and education. Cities also offer women more opportunities for social and economic mobility. Unrestrained by discriminatory customs and traditions, urban women are more likely than their rural counterparts to have access to property and other assets. Child and maternal mortality rates are also lower in cities, including in slums, compared to rural areas.
The downside is that city life exposes people to hazards such as indoor and outdoor air pollution, congestion, and crime, which significantly impacts the health and lives of urban dwellers. Cities can be incubators of disease, crime and other vices; but these disadvantages have never stopped cities from growing, even when plagues and other health hazards infest cities and kill populations. The 1665 Great Plague of London, for example, killed thousands, but did not diminish London’s stature. COVID-19 has decimated populations in the city of New York – the city with the highest COVID-19-related death rate in the United States – but even images of mass graves of the disease’s victims are unlikely to deter people from moving there.
Safety nets are also weaker in cities, which is one reason why so many people in the developing world (where there are few government-funded welfare systems) identify with their rural homes, where, as Ikawah points out, social capital obtained through filial ties is much stronger (though associational life in slums, through cooperatives and self-help groups, have helped reduce some of this deficit).
Cities have also been derided for promoting mindless consumerism. They have been accused of driving a type of capitalism that encourages people to go on endless shopping expeditions to buy things they might never use or need. Large shopping malls – a distinct feature of modern cities – are filled with products that keep the wheels of capitalism moving. Alain Kamal Martial Henry predicts that the coronavirus will overthrow this “Western bourgeois model” imposed by capitalism. And this may lead to the eventual demise of cities and urban living.
The problem that has no name
I asked Daniel Biau, a former colleague who served as the Deputy Executive Director of UN-Habitat from 1998 to 2005, whether we could from henceforth witness a decline in urban growth levels, and whether people will now seek to move out of large cities to places that are less dense and concentrated.
Biau was not convinced that the coronavirus pandemic will change the way people view cities. “As usual, a few journalists will write about risky cities but their alarming views will be completely ignored by ordinary people who know very well that cities are, above all, places of job opportunities, social interactions, education and cultural development,” he said.
He predicts that in the digital age, it is likely that small and medium-sized cities will grow faster than big metropolises because teleworking will become the norm. “Already in France 40 per cent of the working population is currently teleworking,” he said.
“History has shown that some cities could shrink due to economic or environmental reasons. But cities have never disappeared due to health reasons. This is why the UN should provide guidelines for the promotion of safer and healthier cities as part of the wider sustainable cities development paradigm,” added Biau in an email exchange.
Cities will exist – and continue to grow – because of human beings’ need for social interaction, physical contact and collaboration. As Glaeser points out in his book, “The strength that comes from human collaboration is the central truth behind civilization’s success and the primary reason why cities exist. We should eschew the simplistic view that better long-distance communication will reduce our desire and need to be near one another. Above all, we must free ourselves from the tendency to see cities as their buildings, and remember that the real city is made of flesh, not concrete.”
However, despite their density and diversity, cities can also be lonely places. The “little town blues” that I talked about earlier are also experienced in large cities. People living in high-rise apartment blocks in big cities or in suburbs on the periphery of cities often report not knowing their neighbours and lacking a sense of “community”.
Some believe that rapid suburbanisation since the 1950s, especially in the United States, led to increasing disillusionment among married women, whose isolated lives in well-planned (but boring) suburbs led them to question patriarchial norms and the virtues of being stay-at-home wives and mothers. This angst (described by Betty Friedan as “the problem that has no name” in her book, The Feminine Mystique) sowed the seeds of the American women’s movement in the 1960s and ‘70s, and led many women to seek careers outside the home.
Some cities are better at fostering human interaction than others through carefully planned urban designs, and more people-friendly infrastructure, such as parks and other public spaces, including pedestrian-only streets. Recently, after a wave of rape cases in India, urban planners have also been thinking about how cities can be made more woman-friendly, with more street lighting and more gender-sensitive public transport. The designers of these cities understand one basic fact: cities are not about buildings and infrastructure; they are about people and communities.
The COVID-19 lockdowns have demonstrated how abnormal and disturbing self-isolation and social distancing can be. The pandemic has underscored the fact that human beings have an inherent need to interact with other human beings, even if it is at a cursory level. This physical connection with a diverse range of people from different backgrounds is what makes cities attractive, and is the reason why the city – in all its beauty and ugliness – is one of humanity’s greatest achievements.
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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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