2020

Coronavirus cannot be Defeated for any of us until it is Defeated for all. The coronavirus has over time proven to not only be a health pandemic, but also a potentially devasting economic catastrophe to billions worldwide. It is the society’s weakest and poorest that are likely to be worst hit. It’s not far-fetched to say that no economy is exempt from the negative impact of another. It’s a global village after all, as advertised. Thus, current times make it stupendously ill-advised to leave Africa’s economy out of conversations on reducing the fiscal impact of COVID-19 now and after we beat it, specifically the threat to the poor and needy. It is no longer a secret that should this coronavirus continue to spread into the coming months, for the poorest of us, the plunge from prosperity to peril will be as swift as the switch to lockdown protocols. The 2020 economic growth rate for the world and that of individual countries have already declined to very low values, implying no improvement in standards and cost of living for those that are already at the bottom of the barrel. That is focus of what you’re about to read, a spotlight on those at the bottom of the barrel and how this pandemic will likely mean much worse for them. Rya Kuewor is the Co-Founder and Executive Director of the Refugee Integration Organization (RIO) and an Agenda Contributor with the World Economic Forum. Simon Turner is a Consultant with the African Health Innovation Center and a Director at Founder Institute. Both are Migrant Reintegration Consultants with SOCIAL IMPACT, an organization that has been instrumental in designing and implementing innovative qualifications and start-up support for socially disadvantaged groups. These are all facts, and this is an opinion piece. Enjoy the read! ♕ —- ♕ —- ♕ —- ♕ —- ♕ —- ♕ —- ♕ —- ♕ —- ♕ By Rya Kuewor and Simon Turner While it is fair to say that to some extent COVID-19 doesn’t discriminate, it’s also a given that once it starts to hit the world’s poorest, marginalised and most vulnerable, inequality will yet again prove to be a devastating curse. With little or no access to clean water, shelter, information, healthcare, food, or even the luxury of “social distancing”, the world’s poorest and most vulnerable are at increased risk of suffering the worst from COVID-19. Adding up the 25.9 million refugees living in camps, and the 41.3 million Internally Displaced People (IDPs), as well as the 900 million people who live in the Least Developed Countries (LDCs) – most of which are African nations – over a billion people are at risk and almost 50 countries face the risk of catastrophic failures. The Problem While recognising the importance of learning from other countries like China, Italy, Germany, and South Korea, African leadership and its citizens should not think Africa, as sovereign nations and as a continent, will experience similar timeframes with regards to the time it will take to get a handle on the extent of COVID-19 pandemic. As of today (10 Apr, 2020), there are just over 13,000 recorded cases in the whole of Africa, but celebrating these relatively low numbers as a win would be a mistake, because they are at least partly a result of insufficient testing.  We are also potentially being lulled into a false sense of security by taking as gospel the possibility that the disease is less infective in warmer temperatures. Even if it were the case, “this will be a source of concern for Southern Africa, which is heading into its colder months and “flu season,” and so their healthcare systems – already creaking – will quickly be overwhelmed. The outlook for the rest of the continent is equally bleak, with most countries unprepared to cope with the pandemic for a prolonged time. This coping ability is contingent on how soon robust measures to combat the viral spread are enforced and/or a vaccine or other solution is developed (which is unlikely until before 2021), but most African nations currently cannot effectively implement these measures.    The Impact The public health, economic and social devastation the world has seen in the wake of the COVID-19 pandemic will be many times more severe in developing countries if the viral spread is not contained. In normal times, low-income countries are familiar with poor infrastructure, social amenities and healthcare (not to mention conflict) – with Africa alone carrying a quarter of the world’s disease burden but is responsible for only 1% of global health expenditure – meaning that adding on the ravages of COVID-19 further worsens the situation of many African nations. Africa quite simply is unlikely to be able to follow most of the world in locking down countries and regions to help contain the spread of the Coronavirus. While the US, European, Australasian and Asian countries are able to enforce quarantines, they can also cushion the impacts of the quarantines on their citizens. From direct financial aid to households, to corporate bailouts of up to 2 trillion dollars (in the US), these nations and regions are far better prepared to deal with the pandemic and its immediate aftermath. About 85% of Africans live on less than $5.50 dollars a day, many earning daily wages in low-skilled work. Enforced quarantines and stay-at-home orders will abruptly upend the livelihoods of these people, many of whom do not have the reserve resources to shelter in place. For the people who live hand-to-mouth and in extreme poverty in Africa, many living in shacks and slums with little chance of social distancing, insufficient potable water or sanitation, their communities could easily become a nexus for the viral spread. Because more than a quarter of the world’s hungry live in Africa, the imminent dilemma of either starving or maybe catching COVID-19 will become a bleak reality for many poor families, some of whom may be forced to risk infection.  For some of these vulnerable communities, particularly in refugee camps and for many IDPs, the threat of pandemic is but another of many life-threatening situations they have had to navigate for years. In addition, following how Ebola caused grave stigma against survivors, COVID-19 may engender how survivors or infected persons are treated. Facing the potential for vigilante violence, some already marginalised infected people may decide

Judge Sloss once explained, “A thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can only be done at excessive and unreasonable cost.” It is through the lens of Judge Sloss that I view any discussion on COVID-19 and the pandemic is continuing to have on businesses. It should be universally clear by now that a lot of things previously normal that happen in our lives and our businesses have become impossible or impractical. In my article on COVID-19 & Force Majeure last week, we quoted the Gibson Dunn Law Firm as stating, “Whether or not the contract contains a force majeure clause, the common law doctrines of impossibility or commercial impracticability may be available and legal analysis of such a claim should be conducted… the party asserting this defence will bear the burden of proving that the event was unforeseeable and truly rendered performance impossible, and the doctrine generally is applied narrowly… if an agreement does not have a force majeure or “act of god” clause, an analysis under the doctrine of impossibility or commercial impracticability, depending on the jurisdiction, may be warranted.” Last week’s article triggered some healthy discussions amongst readers and myself. That article had, as I put it, “real gems from a real lawyer and a real law firm”. Today’s article is the content of dialogues with two good friends, one being my proclaimed King of Brainstorming, and the other the man I will credit if ever I take up full-time Pan-Africanism. Foster Awintiti Akugri, the Stanbic Bank Incubator Manager and Founder of Hacklab Foundation, explores how COVID-19 could trigger commercial impracticability for contract holders. Tom Arowojolu is a Director at Mainbridge Group and CEO of Mainbridge Investment Advisory. He touches on what he calls the “Dawn of a New Reality”. Before you read it, I agree with Tom’s assertion that, in legal proceedings and within a legal framework not subject to conspiracy theories and the like, the corona virus cannot be automatically categorized as an “Act of God”.  I say this because, from a legal standpoint, the onus is on whoever is making the claim, be it Force Majeure or Commercial Impracticability, to prove the aforementioned claims. It is going to be very hard to prove that, in these times of advanced modern technology, a virus like this can only be an “Act of God” and not engineered in a lab. Enjoy the read! ♕ —- ♕ —- ♕ —- ♕ —- ♕ —- ♕ —- ♕ —- ♕ —- ♕ How COVID-19 could trigger common law doctrines of Commercial Impracticability. Let me start from the national level. The COVID-19 has been so critical to the extent that governments have had to shut down certain arms of its operations in terms of economic activities as a measure to curb the spread. And this has disrupted a lot of value chains and supply chains businesses all over.  Huge sections of the Ghanaian economic community now seem to pose a threat to national security and risk defying the executive order of the President of Ghana if they go about their breadwinning activities as they are used to. So this puts businesses in some form of a shamble where they are caught between “do we fulfil the deal or do we come to a consensus to postpone whatever we may have agreed on or committed to”. And in as much as a contract is a contract, even in the absence of force majeure, some circumstances can make execution impossible or impractical. In this instance, it is an executive order of the President of Ghana, the one person of the highest authority of any economic environment putting an embargo on and limiting some business operations. This may definitely have an impact on some types of businesses and some types of contracts. Let’s take another instance. Assuming I got involved in an accident today or I got paralysed and I am unable to fulfil a certain obligation because of that incident. If I can demonstrate clearly with evidence that it is beyond my control to get my duty done as per a contract, then common law doctrines of commercial impracticabilitycould be enforced.  But again, it depends on how the contract is also drafted. There are a variety of avenues that this may end up taking. Severability Clauses may only allow the courts to void one part of the contract while keeping the other parts very much alive. [Severability Clauses might say, “If any clause, or portion of a clause, in this Agreement is considered invalid under the rule of law, it shall be regarded as stricken while the remainder of this Agreement shall continue to be in full effect”.] Also, keeping in mind that Severability Clauses potentially allow only parts of a contract to be voided, everything that’s happening with these lockdowns other COVID-19 situations do not necessarily make contracts automatically void when the common law doctrines of commercial impracticability is enforced. You may consider giving an extension to the other party or suspending the activity until both of you have agreed on something. But it also gives the right to one party to terminate the contract. This becomes the much more complex part of it, which in this circumstance is the impact of why you are writing this article right? To seek the opinions of your readers as to whether people can take advantage of these circumstances to get out of contracts. [At this point I interjected that “Advantage” is a strong word: this is more like the exploration of an option that readers requested I delve into after reading a little about it in the closing paragraph of my last article on ‘COVID-19 & Force Majeure’. Foster continued…” Ok, then let me rephrase it as this is explore considerations to taking precautions in light of the complications of COVID-19 to renegotiate contracts which they were initially tied to and now seem to have no option than to fulfil them. Most people have Force Majeure clauses in their contracts though which addresses pandemics. And technically, this is a pandemic. So terrorism, earthquakes, hurricanes, acts of governments, plagues and/or epidemics are usually what’s mentioned in Force Majeure clauses.

I’ll start with the conclusion. In conclusion, the arrival of COVID-19 will usher in a new era after coronacapitalism. It is marked by panic and greed now, evidenced by the unfathomable price hikes. But it will ultimately end up being a huge reset button for the world when widespread empathy and love for one another sets in after a painful realisation that we are all on one floating rock around one burning pile of gas. Take United States in the 60’s for example. Keep in mind that the Great Depression was actually ended by the second World War; it was not the start of it. On 29th October 1929, the US stock market crashed and was dubbed “Black Tuesday”, officially setting off the Great Depression. World War 2 ended in September 1945 when the Japanese surrendered after the US dropped atomic bombs on Hiroshima and Nagasaki. The Great Depression in 1929 followed by war just a decade after that lasted till 1945: it affected EVERYONE. It affected the rich and the poor, the big and the small, EVERYONE. For a long while now, man has been as arrogant as man. The rich and powerful think they’re indispensable. They try to squeeze margins, reduce salaries and put so much economic pressure on the masses beneath them to an extent that life gets so unbearable. For too long have far too many people in the world perpetuated an increasing affinity for dangerous and insular rhetoric all in the name of patriotism or business. BUT… There is this thing called “Suffering”, in whatever mode or manner it may present itself, and when it is right at your doorstep, it is approached differently.  After WW2, it was time to rebuild. But this time, the lesser man or employee or customer standing next to you was no longer one you cannot relate to. He wasn’t a just a statistic. You’d appreciate what one dollar or one loaf of bread can do for your fellow man when you can relate to his suffering. That is why the middle class grew during that time. People realised they have a better chance of survival TOGETHER through an understanding of suffering. They knew we can’t not live together.  After seeing all the suffering in Italy, China, after seeing citizens of the most powerful countries scramble for food and medicine, after watching videos of old people and children literally suffocating from severe implications of COVID-19, and after watching the US stock markets close to a 30% decline from mid-February highs, I think real-life challenges that keep increasing the gap between the rich and the poor like loss and famine and disease and poverty and information illiteracy and a lack of healthcare will be much less baffling now. The End. Now the intro… Our way of life as we know it is going to change. When the basic, universal form of greeting, which is the handshake, is under review and might probably be substituted, it signals some major incoming global modifications. It signals the era after coronacapitalism and it is as confusing as it is dangerous, for now. Coronacapitalism is when the toilet roll and tissue section of the supermarket is perpetually empty while the vitamins section is always stocked. Coronacapitalism is when two brothers drive around low-end stores, buying up all the hand sanitisers they can get. They put it on amazon at crazy prices, sold a few till Amazon banned them for price gouging. Now they have about over 17,000 bottles of hand sanitiser they can’t sell and they’re screwed. We all read this story. Coronacapitalism is when, last Monday, the Dow Jones Industrial Average (DJIA), an index that tracks 30 large, publicly-owned, blue chip companies trading on the New York Stock Exchange (NYSE), drops 13%, its largest point drop in history. The S&P 500 Index and the NASDAQ-100 all fell massively as well. Last week, I ordered and got delivered hand sanitiser that doesn’t sanitise. I told my wife and she laughed way too heartily. The delivered product looked like sanitiser, had that jelly feel, but did not have any alcohol in it. Yet, the label read “70% alcohol”. What on earth did I purchase? Adding to my pain, it came with a surcharge of 200% on the usual price. Coronacapitalism is when crooks see new and unique ways to rip off unsuspecting buyers because prior to all this, when it looks like hand sanitiser in a hand sanitiser bottle, it 99.99% of the time IS hand sanitiser. In the era of coronacapitalism, the unthinkable suddenly becomes reality. “Nigeria bans travellers from the US” shockingly reads well, considering, when the reverse situation just last month was “US bans travellers from Nigeria”. This period is also accompanied by confusion and an ensuing pause or inaction, which in itself is an automatic decision on your choice of response to a world that is unravelling right before your eyes.  Take the Dow loss for instance. The evident downward correction started about a month ago. Traders were in shock last Monday, understandably. The most popular adage on making money in the stock markets is “buy low, sell high”. It’s an easily graspable concept. Do you buy now when the markets are at their lowest to sell high later? What if you’re stuck with stocks you can’t sell at a profit because the markets continue to freefall? Do you dump your ill-performing stocks to cut your losses? What if the market picks up soon after? Whether you make up your mind or not, the markets remain active during the chaos.  Coronacapitalism sucks! During coronacapitalism, the hierarchy of needs isn’t turned upside down: it is reshuffled. In like sort of a game of high stakes dice within a broken Jumanji rendition, toilet paper seems to be steadily making its way to becoming legal tender in the West. A lack of informed expectations are leading many to overprepare. Maybe overpurchasing toilet roll gives the broken and afraid a sense of control over at least one part of their lives. Maybe panic buying begets panic buying; we see t-rolls being bought and we follow suit. Or maybe