In Summary
  • Whether we will be spared or vanquished by the Covid-19 pandemic will depend on how we respond.
  • So far, response of leaders across the world to the Covid-19 pandemic has been characterised by a patchwork of largely uncoordinated reactions, still based on the exigencies and machinations and commensurate limitations of nation-state dynamics.
  • We have to prioritise speed of action over the procrastination inherent in decision-making when faced with a crisis.
  • Lessons must be learnt and our preparedness for disasters must improve.

If ever a crisis should have forced world leaders to rethink their approach to existential challenges of global dimensions, the COVID-19 pandemic ought to have been that catalyst. However, the response of leaders across the world has been characterised by a patchwork of largely uncoordinated reactions, still based on the exigencies and machinations and commensurate limitations of nation-state dynamics.

We should not be surprised, since the reaction of world leaders to the other two great global challenges, albeit of a more long-range nature, namely climate change and nuclear proliferation, are also characterised by such woefully inadequate reactions.

Whilst one can understand – even whilst disagreeing – with the political calculus involved in stock-piling nuclear arms and embracing theories such as mutually assured destruction, dealing with climate change and COVID-19 should pose no such intellectual dilemma.

If viruses know no boundaries, why not agree on a regional coordinated response?

The science in both cases is clear, the global dimensions are obvious and the consequences of failure immense. So why even within economic blocks such as the EAC and the EU has a coordinated response been so lacking?

The EAC finance ministers are able to coordinate tax policy and the timing of their budgets, for example; but where it really matters – the health and safety of their citizens – the lack of coordination is an outstanding feature.

How emblematic of the dysfunctional times we find ourselves in that none of the measures of human cooperation, including the Paris Climate Accords, has had as positive an impact on climate change as COVID-19. It is as if nature is literally demanding human beings to change their ways by creating one disaster so that another can be dealt with.

It is tempting to point to President Trump as the chief architect behind the project to destroy globalisation and international cooperation. After all, with his wrecking ball approach to the Paris Climate Accord, UNESCO and the UN in general, NAFTA and the TPP as a few notable examples, who can doubt his suitability for the position of Chief De-Globalisation Officer? However, to lay the blame for the destruction of international cooperation at his feet is both intellectually lazy and to give him more credit than he deserves.

In truth, at least part of the origins of this failure to cooperate over problems that really matter lie in the hubris generated after the collapse of the USSR. Until then, a large part of the world cooperated through NATO and other means to keep in check the threat posed by an opposing world order. Cooperation requires both an institutional framework and soft-skills – diplomacy, the ability to take a long-range view, the finessing of positions, trade-offs.

The collapse of the USSR and the movement by Russia and former Warsaw Pact countries as well as China to a market economy prompted Francis Fukayama, in a fit of triumphalist foolishness, to famously declare that we were witnessing the “end of history”. Another symptom of the triumph of individualism over collective responsibility was the declaration by Margaret Thatcher that “there is no such thing like society”.

So over time we have slowly eroded the tools and skills necessary for meaningful global cooperation and in doing so weakened our ability to respond to global threats. Although “America First” is the most infamous refrain, in truth many countries across the world adopt a parochial view of national self-interest.

What about Africa’s idea of collective leadership and cooperation?

What of Africa? History teaches us that most of our societies were constructed around the idea of community, collective leadership and cooperation. The colonial period changed that, alienating ourselves from our indigenous systems of dealing with social problems and replacing colonial and foreign robber barons with robber barons closer to home. The story of African’s development since then has been one of trying to bring our leaders closer to the people.

And now COVID-19 suddenly rears its ugly head. How have we responded? It is notable that an African, Dr Teodros Adhanom, is the head of the WHO. His plaintive calls for a coordinated global response have largely gone unheeded, and those from this continent were perhaps the slowest to react.

In Malawi for example, the Government had barely recognised COVID-19, mired as they are in the petty fights concerning whether the Presidential election was stolen. A case of fiddling while Rome burns if ever there was one.

What is notable is the lack of coordinated policy action from the AU or, closer to home, the EAC. The AU launched the African Continental Free Trade Area and appointed its Secretary-General on March 20, 2020. Rather than focus on these initiatives which have long-term outcomes, the entire AU machinery should have been focused on coordinating an Africa-wide approach to COVID-19.

Turning to the EAC, there is no reasons to assume that the epidemiological journey of this virus will be materially different from EAC country to another (save perhaps for Burundi which has been in a virtual state of self-isolation even before COVID-19) so there is a strong basis for cooperation. Instead, we see the East African nations all acting differently, perhaps in the vain hope that each will be luckier than the other.

What do we see instead? An uncoordinated approach, with each country deciding on its own and in general in a chain reaction format. Travel bans pop up at a moment’s notice and “self-quarantine” means virtually nothing since the policing mechanisms are so weak.

So, where do we go from here?

First, one must accept that the risk of doing nothing drastic and hoping that the COVID-19 will pass us by leaving us relatively unscathed is outweighed by the much greater risk of death and ill-health on a scale not seen before in most of Africa (and we have seen a lot). There is no scientific basis for believing in an “African Immunity” or the “We are too hot for COVID-19” theory.

So, there is an imperative to act and to act now. We also know that our health services are woefully inadequate even in times of normalcy. For example, Kenya has 200 doctors per million compared to Italy which has 4100 doctors per million.

We have 1400 hospital beds per million whilst Italy has 3400 per million. The situation of ICU beds is even worse. Kenya has no more than 155 ICU beds, whilst Italy’s hardest hit area, Lombardy, with a population of 10.04 million, had over 640 ICU beds before the catastrophe and now has more than 900.

And let us be clear: the 2008 financial crisis was just that. A financial crisis precipitated by a decline in the US housing market that had implications for the global banking system but to which the African financial system was relatively immune.

This is a global health crisis, which is causing an economic meltdown on a scale not known since the great crash of 1929. The graphs below demonstrate this by reference to the performance of the Dow Jones, FTSE 100, NSE and JSE since January 2020.

Data sourced from

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Globally, there is a debate about whether to follow the so-called “mitigation” strategies or “suppression” strategies. In the absence of our ability to organise contact tracing, efficient testing and policing self-quarantines on a nationwide basis, the only responsible thing to do is to apply full suppression measures, even if on a regional basis or in “hot-spots”. These would include a full travel ban and government mandated rigorous social distancing measures. If properly policed these may not need to last for many months but may need to be repeated more than once.

A key question on the minds of many are the social and economic consequences of these measures and whether by acting promptly or pre-emptively, governments may cause an otherwise avoidable economic catastrophe. This is where we must rely on experts and not politicians and what has been absent in East Africa is clear communication from the medical community.

In Kenya for example, the Kenya Medical Association has not spoken publically about COVID-19 and the appropriate measures to take? The National Response Committee on Coronavirus has been communicating using media briefings and press releases, while county officials have issued contradictory and sometimes unenforceable guidance on social distancing measures. Politicians are generally master tacticians and poor strategists. This is a time for expertly guided strategy, not political tactics.

Another question is how one pays for this. After all, we do not have the luxury of the significant bail out packages that the Western nations are dishing out. Whilst these are funded by borrowed funds, they borrow at virtually nothing whilst we pay 8-9 percent on foreign currency debt. And in Kenya we have been constantly reassured by our government that we have not borrowed too much and that we are well within reasonable borrowing limits. Well, as any responsible borrower knows, one should ask a few “What if?” questions when deciding how much we should borrow.

Politicians, please talk less so that we can hear the scientists!

Our “What if” moment has arrived, and we don’t have many answers. The Kenya shilling has already lost ground to the US Dollar and our cost of borrowing has therefore increased. Debt service will become an issue especially since tax collections will plummet as the economy grinds to a halt.

Increasing interest payments as a percentage of total revenue – Increased cost of servicing debts.

Data source: , and

There aren’t many great choices or options, to be candid. One has to prioritise speed of action over the procrastination inherent in decision-making when faced with a crisis.

First, the government needs to act and be seen to be doing so on the advice of qualified health professionals. We should be hearing less from politicians and more from scientists. And we should be hearing from them daily and through all media channels and through online communications. The Government should be buying airtime and newsprint across the board to pass on the message about sanitation and health at this time, in addition of course to social media campaigns.

Second, in order to deal with the economic crisis in which the country finds itself, the government should set up a COVID-19 Crisis Economic Response Team, comprising key Cabinet Secretaries, County Governors and leaders from industry and finance (including the SME sector). At this time, more than ever, the government needs to understand first-hand and frequently what is happening in the economy and accordingly the best way to drive policy.

Third, the government needs to encourage collaboration across all relevant actors. Counties should have a unified strategy aligned with that of central government. Then Kenya should play the leadership role it so often has in the EAC and the broader AU and try to reach consensus on matters such as unified testing protocols, travel policy, quarantine measures, pooling medical personnel, and incentivising cross border trade in essential commodities.

Fourth, the Government needs to step into the fiscal breach and take steps to reassure businesses. The recent attempt to pass the full cost of borrower default and restructuring to banks may appeal to the Robin Hood tendency in many of us, but it is foolhardy.

Banks, like many of us, should share some of the pain but weakening their creditworthiness at this time is not sensible. Borrowers should receive relief, but the government should be stepping in to assist banks in this regard. Loan guarantees, tax breaks and a COVID-19-bond could be ideas to fund this.

Moving towards an unprecedented global recession

Fifth, the Government should provide wide-ranging tax reliefs to prevent business closure, insolvency and personal bankruptcy and the inevitable job losses that will result. These could include lowering the rate of income tax in 2020 especially for those engaged in manufacturing essential supplies, providing enhanced tax relief for costs incurred by business as a result of social distancing measures, deferring payment of VAT for 6-12 months, deferring the payment of instalment taxes, increasing the minimum income subject to tax, increasing mortgage interest relief, zero-rating for VAT purposes the supplies of essential supplies and emergency relief and suspending the application of tourism and catering levy to assist those in the hospitality sector.
Doubtless, this will cause a strain on government cash flows, but this is one of those hard calls government must make. Only the private sector can get the economy through this period of economic implosion and the government must do whatever it can to facilitate the private sector. This will result in greater borrowing by the government, but that is a burden we must place on future generations of Kenyans. After all, they will only be there tomorrow if we survive today.

Sixth, the government must create incentives for employers to retain employees. The U.K. Government has announced an 80 percent bailout for anyone who will not receive a salary or income during the quarantine period. Whilst it may be beyond the reach of government to fund in whole or in part costs of those employees who would otherwise be made redundant, the government could change the law to permit employers to place employees on flexible work-pay arrangements or on extended unpaid leave. Again, these are not great options but are better alternatives to mass redundancies.

Seventh, just as businesses are having to look at their cost, government must look at its costs. The Executive, Parliament, and the Judiciary must reduce their pay and benefits by at least 50 percent, and join in deed, not just in word, the national effort to prevent economic calamity. Cuts in pay and the flexible working arrangement applicable to the private sector should also apply to the civil service.

Do we have the laws to deal with emergencies?

Eighth, the government needs to accept that the health service will not be able to cope with COVID-19. That is simply a statement of fact. This has two implications: those who are infected will get poor or no treatment whilst the treatment of those who are unwell from other causes will also be detrimentally affected. So, bed space will have to be created.

The largest amount of space available country-wide which can be repurposed is the network of courts. There are 139 court stations across the country and many of them have large rooms with high ceilings. Advanced plans should be made to repurpose them. The government could also consider advance negotiations with the likes of the UN to discuss potentially turning their large and well-serviced Nairobi campus into a large makeshift hospital should this become necessary, and relying on their logistical expertise to bring equipment and other vital supplies into the region. Bringing private hospitals into public service is also a possibility but this will add an insignificant amount of capacity if COVID-19 reaches pandemic proportions in Kenya.

The government would, in the midst of all this, do well to remember that the law does not fall silent in times of crisis. It speaks the same language now as it does in peace time, dictating that all exercise of power must be legitimate and justified in law.
A declaration of a state of emergency under article 58 of the Constitution will give the government power to take measures proportional to the coronavirus threat. This includes the limitation of human rights except those rights that cannot be derogated from under article 25 of the Constitution.

It may choose to use the Preservation of Public Security Act which allows it to secure our safety while also exercising broad powers under the Act to requisition the production of necessary goods and control the exportation, importation and prices of goods, among others, by issuing a gazette notice to this effect. Whatever route it chooses, its actions then, unlike now, will be legitimate.

We have reached a turning point. There will be life before and life after COVID-19. Globalisation is not the cause of the pandemic. The plague in the 14th century and the Spanish Flu in the early 20the century also wreaked global devastation long before globalisation as we know it. Indeed, it is through globalisation that we will find the vaccine for COVID-19 and through globalisation that the cooperation necessary to control this pandemic and the others that will follow will be established.

How will COVID-19 affect cyber security? A quarantine is the hackers’ bonanza. How will this impact terrorism? Could terror groups harvest the virus and mutate it to devastate and weaken our future? The world will never be the same again. In the same way 9/11 changed the airline industry, this pandemic will change our lifestyle, how we work, how we move, how we greet and how we talk.

Lessons must be learnt and our preparedness for disasters must improve. It was only a few hundred kilometres south of us in Mozambique when climate change sent its most chilling warning. Still, millions remain displaced. How will we as Kenyans, as Africans, prepare ourselves for the next disaster even as we deal with this one?

This article is part of a long series of articles on the rule of law in the context of politics and ethics. The views expressed here are personal and do not represent institutional views. The series is researched and co-authored by:

• Karim Anjarwalla, Managing Partner of ALN Anjarwalla & Khanna, Advocates
• Wandia Musyimi, Research Associate at ALN Anjarwalla & Khanna, Advocates
• Kasyoka Mutunga, Research Associate at ALN Anjarwalla & Khanna, Advocates
• Prof Luis Franceschi, Senior Director, Governance & Peace, The Commonwealth, London