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COVID-19 Vaccine Safety and Compensation: The Case of Sputnik V

7 min read.

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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David Ngira (@davidngira)is a Postdoctoral Researcher at Cardiff University School of Law and John Harrington (@harringtonj3) is a Professor of Health Law at Cardiff University School of Law.

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Miguna Miguna Must Return Home and Court Orders Must Be Obeyed

Statement by Dr Willy Mutunga, former Chief Justice and President of the Supreme Court of the Republic of Kenya.

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Miguna Miguna Must Return Home and Court Orders Must Be Obeyed
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My Decision

After careful reflection and following broad consultations with lawyers, human rights and justice defenders, progressive politicians, and Mr Miguna himself, I have decided to travel to Toronto, Canada, to accompany Mr Miguna on his flight back to his motherland on 16 November 2021. I am also seeking out Kenyan journalists who will accompany me on this historic journey.

I have taken this extraordinary step for two fundamental reasons. The first is because of the continued, flagrant and reprehensible defiance of the Government of Kenya, its agencies and senior officials, against the numerous valid court orders in favour of Mr Miguna, The second reason why I have decided to undertake this journey is to support and defend the independence of our judiciary, its authority, and the people’s confidence in it.

Roll call of gross injustices, impunity, and subversion of the constitution and the rule of law

As you may recall, Mr Miguna was illegally abducted from his house in Nairobi on 2 February 2018, detained incommunicado and tortured for six days.

Mr Miguna’s house was unlawfully destroyed with detonators. In defiance of habeas corpus orders issued by the Honourable Justice Wakiaga and the Honourable Justice Luka Kimaru directing that Mr Miguna be released immediately and taken to court, the Government of Kenya illegally seized his valid Kenyan passport and forced him into exile in Canada.

On 15 February 2018, Justice Kimaru ordered that Mr Miguna’s Kenyan passport be deposited with the High Court in the state in which it was seized. However, rather than comply, the Government of Kenya defaced and destroyed the passport before delivering it to the court. That was an egregious affront to the rule of law.

The Honourable Justice Chacha Mwita then issued an order on 26 February 2018 directing, among other things, that the Government of Kenya and its senior officials named in the Constitutional Petition Number 51 of 2018 facilitate Mr Miguna’s return to Kenya and grant him unconditional entry at the time of his choosing. The Court also suspended the declarations and decisions of Interior and National Coordination Cabinet Secretary Dr Fred Matiang’i, and Director of Immigration, Major (Rtd.) Gordon Kihalangwa, that had purported to invalidate Mr Miguna’s citizenship and justify his forced exile.

However, when Mr Miguna flew back to the country on 26 March 2018, not only did the Government of Kenya block his entry, but senior government officials also imposed unlawful conditions on him in contempt of Justice Mwita’s orders, physically assaulting him, detaining him for three days in a filthy toilet at the Jomo Kenyatta International Airport, before sedating him and illegally removing him from the jurisdiction of the Kenyan courts to Dubai in the United Arab Emirates (UAE), on 28 March, 2018. Once again, the Government of Kenya did this in open defiance of multiple court orders by the Honourable Justice Roselyne Aburili and the Honourable Justice George Odunga. In a further display of disregard for the rule of law, the illegal removal to the UAE took place on the same day that Justice Odunga issued the order that the Government of Kenya and all its departments and officials release Mr Miguna unconditionally desist from removing him from Kenya.

These illegal actions by the government prompted Justice Odunga to take the unprecedented step of convicting several senior government officials, among them Dr Matiang’i, Major Kihalangwa, Director General of Police, Joseph Boinett, Director of Criminal Investigations, George Kinoti, Officer-in-Charge of the Flying Squad, Said Kiprotich, Officer Commanding Police Station at the Jomo Kenyatta International Airport, and the Attorney General for contempt of court on 29 March. Each of the contemnors was fined KSh200,000, which was to be deducted directly from their April 2018 salaries. To date, none of the contemnors has purged their contempt. They, therefore, continue to undermine the rule of law and to violate the oath of office they took as state officers.

On 14 December 2018, Justice Mwita issued his judgment in favour of Mr Miguna and indicted the Government of Kenya and its senior officials for violating his constitutional and human rights. This was following a hearing of the Constitutional Petition number 51 of 2018. Significantly, Justice Mwita held that Mr Miguna is a Kenyan-born citizen who has never lost his Kenyan citizenship. The court nullified the cancellation of Mr Miguna’s citizenship and passport, and declared that his arrest, detention, torture and removal from Kenya were illegal, unconstitutional and a gross violation of his rights.

Justice Mwita awarded Mr Miguna KSh7 Million in damages and KSh270,000 for the destruction of his house. He also held that Dr Matiang’i, Major Kihalangwa, Mr Boinett, Mr Kinoti, the Officer Commanding Police Station at the Jomo Kenyatta International Airport, Said Kiprotich, and Githu Muigai were not fit to hold public office. Justice Mwita’s orders were against the Government of Kenya and each one of the named government officials.

The Court quashed all the decisions and actions the Government of Kenya had taken against Mr Miguna and directed that the state return Mr Miguna’s valid Kenyan passport and any other identification documents taken from him, and facilitate his unconditional return to Kenya.

Not only has the Government of Kenya and its senior officials defied Justice Mwita’s orders and refused to facilitate Mr Miguna’s return to Kenya, but when Mr Miguna attempted to return to his motherland on 6 January 2020 at his own expense, the Government of Kenya issued “red alerts” to all commercial airlines, effectively barring him from flying into Kenya.

The Government of Kenya’s “red alerts” against Mr Miguna were issued illegally and in violation of not just his rights but also of international humanitarian and aviation laws. The issuance of “red alerts” in order to frustrate valid court orders is not only a blatant disregard for the rule of law, but a descent into autocracy.

On 6 January 2020, the Honourable Justice Weldon Korir issued orders directing that Mr Miguna be free to enter and leave Kenya at any time of his choosing using either his national identity card or his Kenyan Passport in the state in which it was submitted to the High Court by the Government of Kenya.

Miguna Miguna’s Cry for Justice

It is now 1,355 days – 3 years, 8 months and 17 days – since Mr Miguna was illegally and brutally forced into exile by the Government of Kenya. None of the court orders referred to above have been obeyed or complied with by the state or its agents and officials.

I urge all Kenyans to demand that the government comply fully with the orders, including the prompt payment of all awards, costs and accruing interest. Justice demands no less.

The repugnant subversion of the rule of law by the Government of Kenya in this case is tantamount to the overthrow of the 2010 Constitution and an egregious act of impunity by a government that has a duty to uphold, comply with and enforce laws and court orders. To blatantly defy them, not once, not twice, but multiple times, sets a dangerous precedent that we all must stand up against.

Court orders are not suggestions. They are not requests. They cannot be disregarded without consequence.

As eminent jurists have noted elsewhere, democracy, the rule of law, and the foundational values of our constitution require that the dignity and authority of the courts be upheld by everyone at all times.

Court decisions and orders are binding for everyone, including the Government of Kenya, all organs of state and all officials. From the homeless, to the military generals to the President of the Republic, no one is above the law.

Writing for the majority in the Constitutional Court of South Africa’s decision of 29 June 2021 on the contempt of court case against former President Jacob Zuma, Acting Deputy Chief Justice Sisi Khampepe observes,

It is indeed the lofty and lonely work of the Judiciary, impervious to public commentary and political rhetoric, to uphold, protect and apply the Constitution and the law at any and all costs. The corollary duty borne by all members of South African society – lawyers, laypeople and politicians alike – is to respect and abide by the law, and court orders issued in terms of it, because unlike other arms of State, courts rely solely on the trust and confidence of the people to carry out their constitutionally-mandated function. The matter before us has arisen because these important duties have been called into question, and the strength of the Judiciary is being tested. . . . It is disappointing, to say the least, that this Court must expend limited time and resources on defending itself against iniquitous attacks. However, we owe our allegiance to the Constitution alone, and accordingly have no choice but to respond as firmly as circumstances warrant when we find our ability to uphold it besieged.

Justice Khampepe goes on to affirm the principles enunciated in section 165 of the Constitution of South Africa as expounded by Nkabinde J in Pheko II, namely,

[t]he rule of law, a foundational value of the Constitution, requires that the dignity and authority of the courts be upheld. This is crucial, as the capacity of the courts to carry out their functions depends upon it. As the Constitution commands, orders and decisions issued by a court bind all persons to whom and organs of State to which they apply, and no person or organ of State may interfere, in any manner, with the functioning of the courts. It follows from this that disobedience towards court orders or decisions risks rendering our courts impotent and judicial authority a mere mockery.

As the South African Constitutional Court did in the case of Jacob Zuma’s contempt of court orders, it is imperative that we all stand up and fearlessly defend the constitution, the rule of law, and the authority of the judiciary. If we do not demand, and ensure, everyone’s compliance with court orders, regardless of their station in life, their power or their wealth, we shall allow the institutionalization of chaos and lawlessness.

I call upon all judges, advocates, human rights and social justice defenders, and, indeed, all citizens of Kenya, to join us as we take a stand against the culture of impunity, lawlessness and barbarism that is slowly creeping upon us.

As I prepare to embark on this journey, I demand that the Government of Kenya:

  • Immediately and unconditionally withdraws the red alerts that it has issued against Miguna Miguna and allows all airlines to fly Miguna Miguna to Kenya;
  •  Publicly apologizes to Miguna Miguna and to all Kenyans for the violations of the constitution and for the contempt of court, and complies fully with all court orders including, but not limited to, those regarding reparations and costs;
  • Ensures that Miguna Miguna is not removed from the plane before or after it lands at the Jomo Kenyatta International Airport;
  • Ensures that no security and immigration officers block Miguna Miguna’s entry at Jomo Kenyatta International Airport, or at any other port of entry;
  • Complies with the notice that will be given to the Inspector General of Police not to interfere with, disrupt or threaten Kenyans who travel to Jomo Kenyatta International Airport to receive Miguna Miguna, and ensures that everyone is accorded their full rights of assembly under Article 37 of the Constitution;
  • Ensures that Miguna Miguna’s rights are safeguarded, including his right to be issued with a valid Kenyan Passport, his right to free speech, association, assembly and travel, and to be safe from arbitrary arrest, detention, harassment, threats, intimidation and abuse; and
  • Ensures that the rights of all Kenyans who receive Miguna Miguna at the gates of the Supreme Court Building, where he will present a petition to the Chief Justice and President of the Supreme Court upon arrival in Kenya, are respected.

The immediate purging of contempt of court orders and full compliance with all the foregoing decisions will enable Kenya and its government to be readmitted into the community of civilized nations.

Finally, I appeal to all Kenyans of goodwill and to our friends in other countries to support this cause because it is just. I will communicate the day of my departure and my itinerary in order to enable those who cannot accompany us physically to do so virtually.

I thank you.

Willy Mutunga
Chief Justice & President of the Supreme Court, 2011-2016

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The Lies They Tell Us About Education, Work, and the Arts

Society pays a heavy price when the arts are not about human beings but about institutions. We become an autocratic society, and a society without soul.

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The Lies They Tell Us About Education, Work, and the Arts
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In my open letter to Kenyans, I talked about how the arts are a divine calling. The arts make us human, because the arts provide a space for us to be social and individual at the same time. With the arts, we accept what we can’t change and change what we can, while producing something creative and sometimes new.

Let me give an example of what I mean. The rituals we perform when someone we love dies help us accept death as something we all must face. However, we cannot raise our hands and say death is inevitable, because if we do, we would not have reason to live our lives to the fullest. So the arts is where we deal with that contradiction. When Amos and Josh sing “Tutaonana baadaye”, they are singing, “We accept your going is inevitable, but until we join you, we must still live our best lives, love with all our hearts.” And from this deep truth, Amos and Josh and King Kaka produced a beautiful song.

​That’s what the arts are – beauty that carries deep truth.

This beauty that carries deep truth is not liked by the people who want power. For them to be powerful, they must block us from the truth, and so they block us from the arts. The people in power combine the force of education, religion, business and media to make sure that either they block us from the arts, or they distort the arts so much that the arts don’t lead us to the truth but to a false impression of the truth.

So I’m going to talk about how education boosts this system.

The thing to remember is that the school system hates the arts for the same reason that the government hates them. Schools have structures of power, like principals, who in turn have their deputies and middle-level managers. The power they exercise is no different from that of the state, and in fact, in many instances their appointments are made by the state.

So the education system hates the arts for the same reason as politicians, the clergy and business people: arts will make teachers and students start asking questions about the education system, including questions about content and whether we must use violence to educate. For this reason alone, schools do not want arts education because it would make teachers and students less easy to control.

And how does the education system fight against the arts? By capturing and telling lies about three things: education, work, the arts.

Lies about education

The biggest lie that has been told to us is that schooling = education. I’m sure you know this, because I hear artists saying it, except that it doesn’t mean what they think it means.

Let’s start by defining education. Education is the formal way in which people expand their knowledge and refine their skills. In other words, education is done deliberately. This means two other truths that Kenyans, including artists, seem not to fully understand.

One, that people can expand their knowledge and refine their skills unconsciously, through life, habit and experience.  In this letter, I will call that process “culture”. In other words, you may learn to dance not because you deliberately decided to learn, but because dancing was happening around you and you also learned to dance. The fact that you did not learn your knowledge or skill consciously with the purpose of becoming a dancer does not mean that your knowledge and skill are less important than what others learn in the formal school. Culture was just another way of learning for you.

Two, formal learning is not restricted to going to school alone. Formal learning includes apprenticeship and mentorship. When we are mentored by or apprenticed to someone else, we are going to school, even though we are not sitting in a classroom to be taught by someone called a teacher, and then getting a certificate for it. One of the reasons why I used to invite artists to meet my students is because I wanted my students to hear that even other artists put time into learning their craft from others. So we heard from Juliani that he learned his craft from Ukoo Flani, or from Suzanna Owiyo that she learned to play the nyatiti from her grandfather.

So it is extremely important, and I cannot emphasize this enough, that artists must learn from others. When our artists are not being mentored artistically by anybody, we have reason to worry.

I have heard some artists say on TV that they didn’t learn their craft from anyone. I find that upsetting, because even if they didn’t go out deliberately to learn from elders the way Juliani and Suzanna Owiyo did, they were learning from what was being played in the house or what they heard or did as children. By saying they did not go to school, they are basically dissing their cultures and backgrounds. Or they don’t know them at all.

When we are mentored by or apprenticed to someone else, we are going to school, even though we are not sitting in a classroom to be taught by someone called a teacher.

But the second reason why that statement is upsetting is because it means that such artists see no value in creating arts traditions or archives. It means that if you didn’t learn from anyone, no one needs to learn from you. That means that we will always start our arts from scratch, over and over again. It means that with the arts, we are always reinventing the wheel. And the people in power like that, because the larger society never builds an archive of knowledge.

And without an archive of knowledge about the arts, society has no obligation to respect the arts as work that people spend their time doing, or that it is a skill they learn. And I’m sure you can know the rest of the story. But I’m going to go over it.

Lies about work

The second lie that the education system tells us is that going to school is for employment, and employment is for national development. And we artists know the second part of that lie: to develop, we don’t need the arts; we need STEM (Science, Technology, Engineering and Mathematics).

And to support these lies, the educators and the media tell us junk like 80 per cent of students are in arts subjects. It’s not true. Let me just give the worst example of arts education in Kenya: out of 70 universities in Kenya, only six universities teach music. Only one university teaches fine arts. There is no Master of Fine Arts degree in Kenya.

But the other problem with the lie about employment is that without arts education, we are not able to teach generations of Kenyans to appreciate the importance of arts in society, whether they become artists or not. We need to teach arts education to create a society that will support artists. In other words, if we want the Kenyans to buy your albums, your books and your paintings, to go to the cinema to watch your films and to the theatres to watch your plays, they need to have grown up learning the importance of the arts for their own lives and for society as a whole. They need to understand the importance of protecting public parks and social halls where musicians can perform. They also need to understand the work that goes into art, so that they stop negotiating with you to pay almost nothing, if they pay you at all.

When you go on TV and talk badly about schools and not needing to go to school to be an artist, you are encouraging schools not to provide arts education, so that the next generation of farmers, engineers, lawyers, doctors, teachers will not spend their resources paying for your work. In other words, you are encouraging people not to see your work as work that needs to be paid for. So please think again before talking badly about schools.

When you go on TV and talk badly about schools and not needing to go to school to be an artist, you are encouraging schools not to provide arts education.

Also, when the school system says that the only work worth respect is the work you went to school for, we are encouraging schooling-based discrimination. There is a lot, a lot of work done in Kenya, not only by artists, but also by people who did not get certificates in order to do it. The rich still profit from that work, but they pay even less for it because the workers did not learn it in school. That is why the government is actively discouraging people from pursuing university education. They want Kenyans to learn university level work but not pay them for the value of their work. This problem is no longer about artists alone. It’s affecting all young people.

So the lesson here is 1) value your education, even if you did not get it in the school system, and 2) do not diss the school system as irrelevant to the arts.

Lies about the arts

This third lie about the arts is repeated by artists so much, it’s embarrassing. The lie that the arts are about “talent”. The problem with “talent” is that it suggests that arts is not work that takes skill and time. In fact, businesspeople exploit artists precisely because of the attitude that “Why do you want me to pay for just shaking your body around or splashing colour on a canvas? Si it’s just talent? Even I can do the same work if I wanted to.” For them, performance has no rehearsals, painting has no sketches, and writing has no drafts. You’re just talented. Your art required no work or skill.

This lie was picked up by the Kenya Institute for Curriculum Development, so that you believed the government when it said that Competency-Based Curriculum is different because it will have a pathway for the “talented” students who do not do well in the sciences. How on earth could you accept such madharau as “arts education”? And yet, as I explained on Citizen TV, the “talent” pathway is where they are going to throw the kids who are poor or needed extra help from teachers. In other words, the arts are the place to dump the students let down by the education system.

With that kind of attitude expressed about the arts, we should not be surprised that professionals coming out of the school system don’t see the arts as worth paying for.

But there is another insidious thing happening within the education system that should make us very worried. We are producing periphery professionals without the core artistic skills. Universities, for example, are producing film-makers who don’t learn to tell stories, journalists who don’t learn language or how to write, conflict experts who have no knowledge of history, politics and anthropology, or musicians who cannot play instruments. How is this acceptable?

It is acceptable because the universities have bought the lie that the arts are not “marketable” and are not investing in teaching these subjects. So universities are cheating students that they will produce good films and produce good music without learning story-telling and composition work.

And as a country, we pay the price for this mess with our inability to produce art that we Kenyans can be proud of and that can put us on the international map. For instance, Hollywood makes its biggest and most award-winning films from stories of real people, or from their own novels and plays. Lupita Nyong’o won her Oscar for a film based on a real-life story.

But year after year, Kenyan film-makers guilt-trip us into watching local films but are yet to produce the story of Wangari Maathai or Syokimau or Elijah Masinde on screen. We have few of our oral stories in cartoons, and instead we watch Lion King. By now the column “Surgeon’s Diary” should be an ER-type series, “Mwalimu Andrew” should be a sitcom. But why can’t Kenyan filmmakers think like this? Because they don’t study stories. They study cameras and scripting and Western film festivals. Remember what I said about “reinventing the wheel?” That is what we do.

The last concern I have about education is the most serious of all. This one pains me.

Arts in Kenyan education is taught like science. Literature, the most prominent example, is taught so badly, that students leave school hating it. They are not taught to enjoy stories for what they are.

There are three main ways in which literature is taught. One is to cut up literature scientifically into themes, characters, style and other details and make students repeat those analyses without ever enjoying or understanding the story. The other is to insist on morals, a development agenda or a specific anti-colonial story. The last is to shame students into saying they have no identity because they don’t know the songs their great-grandparents used to sing.

The purpose of all these methods is to prevent the type of arts I talked about in the previous letter. It’s to prevent individual enjoyment and expression through the arts. It’s also to reinforce the idea that the arts are not for us, human beings, but for grades (the school), the church (morals), the state (development) or politics (limited to anti-colonialism).

We pay the price for this mess with our inability to produce art that we Kenyans can be proud of and that can put us on the international map.

This view of the arts explains some disturbing things I notice in my classroom. Our students can’t enjoy art or talk about real life. For instance, when I recently gave some love poems for students to analyze, they said that the praise of a loved one was a lie or an exaggeration. These days, when we are in class, students will tell me about fascinating things in society, but when they hand in the write-up, I find they have not written what they said in class, but have written notes like a schoolteacher. One class finally got what I was complaining about when I said that in Kenya, if I wear a nice dress, people will not say, “That dress is beautiful” or “You look nice.” They will give an analysis: “I always find kitenge dresses very smart.” That’s how disconnected the Kenyan psyche has become. We’ve lost our human warmth.

When the arts are not about us, human beings, but about institutions, then we become an autocratic society. When the arts are treated in this way, it gives permission to the government to censor us, to businesses to exploit us, to churches to condemn us, and to society to not value us. And the price the whole society pays is the loss of our soul.

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Kenyan Media and the War in Somalia: In Bed With the Troops

Ten years ago this month Kenyan troops invaded Somalia. Coverage of the incursion by the Kenyan media has consistently and uncritically favoured the Kenya Defence Forces.

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Kenyan Media and the War in Somalia: In Bed With the Troops
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Precisely ten years ago, Kenyans woke up to the news that about 2,000 troops of the Kenya Defence Forces (KDF) had been deployed to fight al-Shabaab, the Somalia-based terror group.

In an invasion dubbed Operation Linda Nchi, the troops made their way into southern Somalia through the semi-arid porous border that divides the two neighbouring nations. The deployment followed news reports that al-Shabaab was behind abductions targeting aid workers in northern Kenya and tourists along Kenya’s coast.

But while there is no shortage of reports on the hidden reasons behind this decision, analysis of how the Kenyan press has constructed the narratives about the conflict for its audiences is limited. Scholars and analysts have scrambled to put forth solid analyses of the dynamics of the Kenyan elites, al-Shabaab, and other actors involved in Somalia yet few have attempted to address the question of how the Kenyan mass media mediates this war.

Further, researchers have undertaken the essential task of informing us how media outlets in the global north cover wars involving troops from their countries’ perspectives. However, analysis on how invasions in countries like Somalia are mediated by news media organizations from invading countries like Kenya remains minimal.

Wars and the news media 

The intersection of news media and conflict is complex. There is consensus in the existing academic research that journalists throw away their professional hats when covering wars involving their home countries. This is explained by the fact that they are guided by military elites who control the information coming in from the frontline. The shared cultures and ideologies with soldiers on the battlefield render journalists sympathetic to their governments’ interests. In short, they remain patriotic and loyal.

As primary agenda setters, the news media remains a powerful force. In Kenya, the existing digital divide reminds us that the traditional press still dominates the dissemination of information across the country. This requires that we explore what shapes the decisions of Nairobi-based editors when bringing the war in Somalia to Kenyan living rooms.

The KDF has participated in numerous peacekeeping missions across the world since its inception. From the Bosnian war in the 90s to the Sierra Leone civil war that ended in the early 2000s and Sudan’s Darfur conflict, the Kenyan government has generously contributed its military troops to UN-led peacekeeping missions. These missions largely go uncovered by the Kenyan press since the country is effectively not at war, and also because distance discourages editors from spending resources on these countries.

However, the October 2011 decision to invade Somalia, a country that shares a border with Kenya, was unprecedented. The unilateral decision by former President Mwai Kibaki’s government opened a decade of countless terror attacks across the country. And for the first time, Kenyan journalists were covering a war in which their own country was prominently involved.

Undoubtedly, Kenya’s hasty decision to invade Somalia cemented al-Shabaab’s prominence as one of the deadliest terror groups in the continent. Helped by Kenya’s weak security system which was a result of rampant corruption and limited resources, al-Shabaab executed some of its worst attacks in the country.

The unilateral decision by former President Mwai Kibaki’s government opened a decade of countless terror attacks across the country.

The group was behind the killing of over 4,000 people across East Africa in 2016 alone. The Garissa University terror incident in early 2015 that led to the deaths of 147 students and staff remains the deadliest attack by the group in Kenya. Inside Somalia, the group was behind the January 2016 massacre in El Adde and the 2017 attacks in Kulbiyow that resulted in the deaths of hundreds of KDF personnel. Thus, the Kenyan mass media found itself covering a war that was killing military personnel in Somalia and Kenyan citizens across the country.

KDF and the media

It is almost impossible not to think about patriotism when discussing the intersection of the Kenyan mass media and the country’s military institutions. Even before its invasion of Somalia, the KDF consistently enjoyed favourable media coverage and, with the exception of the people of northern Kenya who carry the scars of attacks such as the Wagalla massacre perpetrated in Wajir in 1984, Kenyans’ perception of the KDF was positive.

The Kenyan media’s uncritical treatment of the KDF when the invasion commenced was therefore not surprising. Kenyan journalists share cultures and ideologies with the troops and this creates a bias in how they view this war.

We have often seen how citizens of African countries—with Kenyans leading by example—react to Western media misrepresentations of their stories. From #SomeoneTellCNN to #SomeoneTellNewYorkTimes, Kenyans have taken to social media platforms like Twitter to vociferously criticise how the Western press covers terror in their country. And while pushback against misrepresentations and negative portrayals by foreign media is necessary, it is equally important to question how our own news media portrays war and terror in Somalia.

It is common knowledge that US reporters tend to interpret foreign news with American audiences in mind. But this is not only true of Western reporters; journalists across the globe tend to behave this way when they cross their borders to report on a war led by or involving their own country.

Kenyan news media gatekeepers <> through the lens of nationalism when reporting conflict across the border and within the country. Moreover, whether it be the shifta war, the atrocities in Somalia, the Somali refugees in the Dadaab camp, the Kenyan mass media places Somalia and northern Kenya within the same frame, and the published stories are perceived as synonymous with Kenya’s policy in Somalia. Kenyan reporters write these stories with Kenya in mind, creating the ideal environment that enables Kenyan citizens to accept and approve of the conflict.

After conducting a content analysis of how the Daily Nation and Standard newspapers have covered the war, Cliff Ooga and Samuel Siringi conclude that the Kenyan press has “relied a lot on the news from government agencies instead of residents and eyewitnesses accounts of the combat in Somalia.” This cements the argument that the sources used in covering the conflict frame the KDF as the winning side and shape a favourable public opinion that approves the mission.

My findings of an analysis of over 200 articles in Kenyan and US newspapers about the 2013 Westgate Mall attack were consistent with those of scholars who had examined other attacks such as the Garissa University and Dusit Hotel terror attacks. More than 70 per cent of the sampled articles received episodic framing, meaning they were covered as a single event.

This type of framing doesn’t inform the audience about why these attacks are occurring. It lacks in-depth analysis, nuance, and thematic demonstrations of how Kenya found itself in the conflict. Tellingly, these findings were synonymous with how American newspapers covered the same attacks.

Embedded journalism 

The primary reason behind the Kenyan news media’s uncritical reportage of the war in Somalia is embedded journalism. This type of journalism occurs when reporters are invited and attached to military personnel in the battleground to cover conflicts. This approach defeats critical journalistic values—fairness, neutrality, and impartiality are replaced by patriotism, loyalty and empathy. The value of ethical journalism and independence on the battlefields is lost since military personal provide security to these reporters.

Moreover, the military covers the journalists’ costs and sets the ideal timing for combat. The location of the coverage, how and who is interviewed,  these are strategically structured so as to portray Kenya as winning the war, a classic example of public relations through the mass media. Kenyans are presented with news coming in from the battlefield wrapped in such headlines as KDF, No Retreat, No Surrender in Somalia Operation, and The Frontline: KDF Continues to Combat al-Shabaab in Somalia.

The concept of embedded journalism flourished in the 2003 Iraq war. The US military was eager to control information coming out of the oil-rich country. The use of this tactic by American military elites was motivated by the embarrassment it experienced in the Vietnam War, often referred to as the “first television war”. The advent of television technology took journalists to the frontline, a perilous yet enticing undertaking that brought with it recognition among their peers and prestigious prizes that acknowledged their prominence in the realm of journalism.

The primary reason behind the Kenyan news media’s uncritical reportage of the war in Somalia is embedded journalism.

With unrestricted coverage, positive reportage of the Vietnam War soon turned to critical reporting that portrayed the government in a bad light. With journalists having free access to the affected communities, bloody images of innocent victims of the war found their way onto television screens in American living rooms. The footage contradicted “the official war narrative and undermined public support for the war effort” and calls by anti-war activists for the American government to end the war in Vietnam escalated. This is why military elites in Washington DC view the unfettered access of news media to the frontline as a threat that needs to be contained.

In 2003, embedded journalism played a significant role in advancing the interests of the US in the Middle East and beyond. Reporters were given protection by the military in cities across Iraq. This is little more than tourism on the battlefield, where the troops are the tour guides who control journalists during the adventure that is war coverage.

Imitating the West, the KDF employed this tool to deal with the news media. Coverage of Kenya’s invasion of Somalia is Kenyan-centric, with sources comprising of military personal and the personal views of the journalists. Somalis are completely disregarded and the few who are interviewed are beneficiaries of KDF-driven humanitarian efforts such as free medical camps and distribution of foodstuff.

A culture change is needed

How can the Kenyan news media change this culture of violating journalistic values? Can Kenyan journalists redeem themselves by giving us a clear picture of the KDF’s engagement in Somalia?

These questions need immediate attention as we enter the second decade of Kenyan military activity in Somalia. We have witnessed how the lack of critical coverage of war and terror in countries like Somalia, Afghanistan, Iraq, and elsewhere has derailed efforts towards finding durable solutions to end these wars.

Kenyan journalists need to acknowledge that their coverage of Kenya’s incursion into Somalia has uncritically embraced the government’s position and that Kenyans have not been given an accurate picture of the ongoing conflict. Their editors, the decision-makers in the newsroom, should strive to allocate resources for journalists to be deployed independently to cover this conflict. This essential element in the news production process is key to a fair, impartial, and critical coverage of Kenya’s engagement in Somalia.

This is tourism on the battlefield and the troops are the tour guides who control journalists during the adventure that is war coverage.

Journalists covering these stories should strive to reach out to different sources. Including the voices of those in the local communities who face the wrath of both the KDF and al-Shabaab would be a bold step towards constructing clear narratives for citizens in Kenya and elsewhere.

Newsrooms should also hire full-time, Somali-based journalists to cover the conflict; deploying journalists from Nairobi who lack contextual knowledge will make it difficult to produce fair and impartial reporting. Perhaps engaging properly remunerated local correspondents would address some of the challenges of the last ten years.

When news of the invasion was announced a decade ago, elites in Nairobi were quick to promise that it would be a short war. However, our troops are still “fighting terror” that has killed thousands of Kenyans inside and outside Somalia. It is conceivable that critical news coverage of this war by the Kenyan mass media would lead to the long-overdue exodus of KDF from Somalia.

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