In a one-bedroom apartment in Beirut’s southern neighbourhood of Kola, fifteen women from Sierra Leone are confined day and night. After losing their jobs, or escaping abusive households, their only source of food and shelter is the local Sierra Leonean charity that rents the apartment. Social distancing, imposed amidst the current lockdown, is a privilege they cannot afford. At night, in this 15-square-metre room, they all sleep together on covers surrounded by suitcases. Some dream of returning home, while others wait for the lockdown’s end, hoping they will find work that will enable them to send money to their families again.
Mariam, a 26-year-old Sierra Leonean living at the shelter, arrived in Lebanon in July 2019, with the highest hopes built on the heaviest lies. (Miriam’s name and other names have been changed in this article to protect the women’s identities.) This mother of two from Nakin, in Sierra Leone’s Northern Province, used to be a teacher until she crossed paths with a local recruiting agency. It advised her to travel to Lebanon to become a domestic worker, promising she would double her salary and be able to support her family. It was an offer she could not refuse, though she could not afford the agent’s service fee. Mariam and her family decided to contract a loan in order to pay the $2000 fee, her ticket to a seemingly better future.
Nine months after her arrival, amidst Lebanon’s most severe economic crisis in decades, Mariam had still not been paid by her employer. After complaining to her agency, she was locked up in the bathroom for days, and beaten, or “flogged”, as she says. She decided to run away to save her life. Mariam roamed the streets of Beirut with only $1 in her pocket, until she was brought to the shelter, thanks to her friends from Sierra Leone. Fears of a COVID-19 epidemic were growing, doors were shutting and borders closing. “This is not a nightmare, this is a deadmare,” Mariam recalls saying to herself.
Mariam’s story is not uncommon. An estimated 250,000 domestic workers from a host of African and Southeast Asian countries reside in Lebanon. They are subject to the kafala system, a sponsorship structure that legally binds foreign workers to their local employers and which, according to Amnesty International, “increases their risk of suffering labour exploitation, forced labour and trafficking, and leaves them with little prospect of obtaining redress”. Most domestic workers earned monthly wages of between $150 and $300 before the country was hit by an economic recession in October 2019, and then by the COVID-19 pandemic in March.
On March 15, the Lebanese government announced a lockdown to prevent COVID-19’s spread. Like elsewhere around the world, all non-essential businesses were shut and families were summoned to stay home. For the country’s most vulnerable population, whose sources of income were already compromised by the ongoing economic crisis, this was another nail in the coffin.
An estimated 250,000 domestic workers from a host of African and Southeast Asian countries reside in Lebanon. They are subject to the kafala system, a sponsorship structure that legally binds foreign workers to their local employers…
For the women who found refuge at the Sierra Leone Committee’s shelter, things were even grimmer. Baylor Jalloh, the vice president of the Committee, explains: “During the economic crisis all the women here were working without getting paid, pushing some of them to escape their households. Now they are being thrown outside of [their] homes.”
Out of the 75 women currently hosted by the Sierra Leone Committee’s shelters, 20 were laid off during the COVID-19 crisis. Now they have no other choice except to roam the streets in search of money and food, risking exposure.
The lockdown has also made it almost impossible for homeless domestic workers to find food assistance or refuge. Mosques and churches, which sometimes used to provide food, have shut their doors. Humanitarian organisations and local NGOs have had to put some programmes on hold, and are now sounding the alarm. Madeleine Maxwell Hart, the project coordinator at Amel Association International, warns: “Shelters are in full capacity now.”
The lockdown has also made it almost impossible for homeless domestic workers to find food assistance or refuge. Mosques and churches, which sometimes used to provide food, have shut their doors.
As of April 28, Lebanon has 717 confirmed COVID-19 cases and 24 deaths. Many of the women at the shelter refuse to go out. Fear is omnipresent among them, especially because they do not feel they can access healthcare. “Of course we are so afraid of the virus. In Sierra Leone we already have one experience: corona is the sister of Ebola,” says Mariam, remembering the epidemic which killed thousands in Sierra Leone between 2014 and 2015. “We don’t have anything to protect ourselves against the corona. We just use our traditional medicine: the moringa leaves.”
Imane El Hayek, a case worker at the Lebanese NGO Migrant Community Centre, explains why many might feel they cannot count on the healthcare system: “Though domestic workers can get tested for free […] many undocumented workers may be more reluctant to try to seek medical help or testing because they are scared they may be arrested on the way,” she says.
Hart adds, “As far as we know we have not heard of anyone without a residency being targeted when they went testing, but you do need a copy of your ID. And many domestic workers don’t have it because it has often been confiscated when they arrived in Lebanon. And they don’t have a copy in most cases. This is a big challenge.”
El Hayek stresses that “migrants are also more vulnerable to the coronavirus in this situation, mostly because of their living conditions in more crowded places. They do not have the luxury to self-isolate. They do not have private transportation, so they are more likely to use public transport. (…) Most of them have limited access to clean water, gloves, masks, and anything that is recommended for self-protection.”
When getting help from the outside becomes hopeless, some members of the community take matters into their own hands, in solidarity with those most in need. “When I saw my sisters’ problems, I forgot about my own,” says Jalloh, who also recently lost his job as a tailor. Over the last two months, his network and efforts have helped the committee save 20 women from homelessness and hunger.
Despite being essential for homeless and penniless migrants, such relief initiatives are hanging by a thread. Indeed, they rely on the goodwill of a few individuals who are also impacted by the lockdown. The committee’s president, Mousa Sasour, used to set aside a part of his salary for the committee. Today he has no income and struggles to find enough money to sustain the 75 women that the committee supports. Apart from contributions by its members, the Committee can only count on private donations.
When asked where her hopes reside, Tenneh, 23, responds: “After God there is only the Committee. Besides that, there is nothing.”
Mariam and her flatmates have managed to gather some money to pay for an internet connection. “We speak to our families everyday, this is the only thing that makes us happy here,” they say.
Facing the situation with other women from Sierra Leone also helps. “We do everything together, we cook together, we sleep together. Everything we do is in unity,” declares Mariam as the women around her nod their heads in agreement.
For these women, all between 20 and 30 years old, the future looks grim. Sending remittances back home was the only reason they left their country. Now, some of the women’s parents are sending money for their daughters’ survival.
“They are selling their lands to pay for our bills,” says Mariam in disbelief.
This situation is bound to become unsustainable as the COVID-19 pandemic spreads in Africa, forcing countries like Sierra Leone into lockdown. A few women already reported that their close ones have lost their jobs.
For these women, all between 20 and 30 years old, the future looks grim. Sending remittances back home was the only reason they left their country. Now, some of the women’s parents are sending money for their daughters’ survival.
When asked about the future, the women sigh and raise their eyes to the sky. Will the sanitary and economic conditions allow them to find jobs again once the lockdown ends? If not, what will happen when neither community relief initiatives nor families are able to provide food and shelter?
“If I did not have this Committee, I would have to prostitute. How else could I eat?” fears Tenneh.
Some days, Tenneh and the women cook traditional food to comfort themselves and remember home. They even managed to find cassava leaf, a Sierra Leonean favourite, from which they make a spicy sauce to eat with rice. This leaves them with a glimpse of a smile on their faces.
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Elections 2022: Mt Kenya Foundation Remains Mum
Mt Kenya Foundation — a league of top business and political leaders has refrained from publicly declaring its support for presidential hopeful Raila Odinga. An influential institution formed in 2007, the foundation’s approach is a tactical public retreat but its support for Azimio remains strong and unwavering.
As the presidential campaign gets into high gear and with only 48 days to the general election, a key plank of Raila Odinga’s support group has been very quiet and less and less visible from the public.
For the better part of 2021, the Mt Kenya Foundation (MKF) was very much in the limelight, meeting with the Azimio alliance presidential candidate in carefully choreographed business bashes, cocktail parties, prayer meetings and even in public rallies. Come 2022 and the meetings have gradually petered out.
Or, let’s put this way: their soirées are no longer being reported by the mainstream media, including their “in-house” media house, the Royal Media Services (RMS) owned by media mogul S.K. Macharia, one of the foundation’s members.
Two weeks ago, I had a lengthy discussion with one of their members, who told me that nothing has changed. “Our position and support hasn’t changed; Raila is still our preferred choice. We only decided to continue lending our support away from the public glare.”
The foundation still funds some of his presidential campaigns, albeit discreetly. “Our people [Gikuyu, Meru, Embu Association GEMA] were not, and are not, enthused by our [open] support for Raila. We were getting a lot of flak from them and we reckoned it wasn’t helping his and our cause. Nothing will sway GEMA from not voting for Raila. That’s the brutal fact.”
It’s not only MKF that has stopped declaring their support for Raila publicly. The Council of Elders, which in October 2020 made a hyped trip to Bondo, the ancestral home of the Odinga family in Siaya County, have equally gone mute. “After that trip, the [Kikuyu] people shunned our activities and seemingly avoided us,” one of the elders told me recently. “They didn’t take well to our partisan and public support of Raila.”
The MKF, which was formed in 2007, comprises among others, captains of industry, very senior and influential civil servants, and powerful politicians. The year 2007 was a critical juncture in the politics of Kenya: President Mwai Kibaki, who died in April 2022, was going to face Raila in the coming December presidential elections.
Although Raila had helped Kibaki clinch the presidential seat in the crucial 2002 general elections, against the greenhorn duo of Uhuru Kenyatta and William Ruto, by the end of his first term Kibaki had become Raila’s nemesis. Under the Orange Democratic Party (ODM) banner, Raila had already sent shivers down Kibaki’s party ranks that in 2007 elections ODM was ready to wrestle power from him.
It is against this backdrop that some of the richest among the GEMA fraternity coalesced around the MKF. Basically, it was a platform for raising campaign money for Kibaki’s second term. Not ready to witness another change of the rear guard just when they had begun consolidating their riches, after a 24-year hiatus during President Daniel arap Moi’s reign, this ethnic group was not about to take any chances.
Raila mounted a formidable if disorganised campaign. But just as he was on the cusp of wresting power from Kibaki, who was now running under the Party of National Unity (PNU), a new party that had been quickly cobbled together, the Electoral Commission of Kenya (ECK) —precursor to the Independent Electoral and Boundaries Commission (IEBC)—started relaying startling results.
What the end result of this “startling results” heralded for Kenya is now in the history books: post-election violence (PEV), over 600,000 internally displaced people (IDPs), unmitigated deaths officially put at 1,000 by the state, but recorded figure by non-governmental organisation (NGOs) placed the numbers at three time as much.
The MKF is not an entirely new invention—in 1996, some of the richest Kikuyus from Central Kenya came together to form the Central Province Development Support Group (CPDSG) in anticipation of the GEMA–KAMATUSA (Kalenjin, Maasai, Turkana, Samburu) peace talks. The supposedly “peace group” was formed presumably to stem (ethnic and post-election) tensions that first occurred after the first multiparty elections in 1992.
The talks were also supposed to culminate in the re-settling of the victims of the so-called tribal violence that had erupted in the expansive Rift Valley Province and which mostly affected the Kikuyu people. The reality is that this elite cabal that was again composed of influential civil servants, rich business people and powerful politicians was an informal lobby group that sought to campaign for the hated ruling party KANU and for President Moi in Central Province.
Then, as now, one of the constant figures in these formations has been S.K. Macharia; he belonged to the CPDSG just as he now belongs to the MKF. As with the CPDSG then, the MKF is a lobby group primarily concerned with the survival of its business interests.
William Kabogo, the first governor of Kiambu County who is seeking to reclaim his seat in 2022, wrote on his twitter handle: “If you care to know Mt Kenya Foundation specializes on fundraising but the big question is do the funds go to the intended purpose? Your guess is as god as mine. Caveat emptor.”
Among the MKF membership is Mutuma Nkanata, the foundation’s coordinator who is also the CEO of the NGO Coordination Board—the regulatory board for NGOs in Kenya. He is also the Chairman of Kirimara Sports; a Meru-based sports development organisation.
Another member is the former Kenya Revenue Authority (KRA) boss Michael Waweru. Waweru was appointed commissioner-general of KRA in 2003 by Kibaki. His contract ended in 2012. An accountant by profession, he was the managing partner at Ernst & Young (EY) – East Africa until 2002.
Also in MKF is Peter Munga, founding chairman of Equity Bank group and one of its largest shareholders. Munga is also a shareholder at Britam, the financial services conglomerate, and a founder of the Pioneer Group of Schools.
MKF member Titus Ibui is the chairman of Lamu Port South Sudan, Ethiopia, Transport Corridor Development Authority (LAPSSET), a regional infrastructure partnership between Ethiopia, Kenya and South Sudan. Ibui is also the vice chairman of Kenya Leather Council and founder and executive director of Bell Industries Ltd., an agri-business and health solutions company.
Zamara Group chairman, politician and former MP Dennis Waweru is also an MKF member, as is businessman Wilfred Murungi, owner of Mastermind Tobacco Kenya (MTK).
During one of the Raila meetings organised by MKF on 28 September 2021, communications director Joe Murimi said, “The Tuesday (September) meeting between MKF and Mr Odinga is also with a view to coordinating resource allocation and setting priorities for the region’s economic turn-around ahead of 2022. We’re listening to all presidential contenders and our interests as a region are way bigger than only the position of a deputy president.” The foundation had previously met with Raila in June 2022.
Some of the personalities in the June meeting included President Uhuru’ influential maternal uncle, former Catholic priest George Muhoho, Media mogul Macharia and former Kenya Chamber of Commerce vice chairman, James Mureu.
At the meeting, Macharia claimed that it was President Uhuru Kenyatta who made overtures to Raila Odinga. “I’m saying that handshake, we ask him (Uhuru) to leave it in good hands so that it can continue. We believe President Uhuru will leave this country in good hands, the hands he went looking for.”
At that meeting Nyandarua County governor Francis Kimemia confessed that the Kikuyu political class had peddled falsehoods against Raila. “Our work was to tarnish Raila’s name, but now we must change that narrative and tell our people that that was politics then. He asked the class to help undo the lies.”
Two months ago, in April 2022, campaigning in his own Nyandarua County, Kimemia changed his tune, insinuating that President Uhuru had not kept his promise on developments projects in Nyandarua. I called my friend Njenga from Rurii location, to find out was going on with governor Kimemia. “Kimemia was told by the people in no uncertain terms that campaigning for Azimio would take him nowhere, so he got the drift, changed tune and started bashing President Uhuru.”
As MKF makes a tactical retreat in its support for Azimio, it is not only Kimemia who has changed his tune; many of the politicians from the Azimio camp seeking elective posts in Mt Kenya are careful not to mention Azimio or even Raila’s name in their campaign rallies.
IEBC Up to Its Usual Mischief
With less than two months to go before Kenya’s general election, the credibility of the Independent Electoral and Boundaries Commission (IEBC) is on the line.
The Independent Electoral and Boundaries Commission (IEBC) was playing by the rulebook when it received the presidential nomination papers of Walter Mongare alias Nyambane. But no sooner did candidate Jimi Wanjigi of the Safina Party show up than Mongare’s papers were quickly rescinded.
The commission, which is mandated to oversee the forthcoming general election, has been in the spotlight and under intense scrutiny from Kenyans and the world since bungling the 2017 presidential election.
The electoral commission’s credibility and trustworthiness have remained wanting, to say the least; the body does not inspire confidence and, indeed, few Kenyans trust it. Even less believe it will midwife the forthcoming presidential election successfully, a bad place for the IEBC to be.
The results of the two 2017 presidential elections are still shrouded in controversy and mystery largely because of the commission’s ineptitude, but the less said about the 2017 general election, which is still fresh in the minds of some, the better.
Fast forward to 2022 and the commission is again in the spotlight; with only 55 days remaining, the IEBC’s credibility and modus operandi are under scrutiny. How it delivers the general election will tell whether any lessons have been learned, especially concerning the presidential election, which, if not handled with the utmost transparency, may result in ugly scenes.
That the IEBC would still be in the grip of shadowy mandarins seeking to influence, in particular, the outcome of the results of the presidential election would be nothing new; the history of electoral bodies in this country, whether pre- or post- the 2010 constitution, is replete with cases of external interference. The Jimi Wanjigi-IEBC saga is a clear indication that the IEBC has yet to rid itself of its penchant for bad behaviour. This is a bad omen.
On receiving the papers of the Safina Party’s candidate, the IEBC chairman and presidential election returning officer Wafula Chebukati prevaricated, seeming to interpret the law when on 6 June 2013 he told Wanjigi, who appeared before him, that he did not possess a university degree.
That the IEBC would still be in the grip of shadowy mandarins seeking to influence, in particular, the outcome of the results of the presidential election would be nothing new.
The matter of what is a degree and what constitutes a university education had already been interpreted by the High Court as law, as illustrated below, a law that the IEBC has been using for the last nine years. In 2013, Justices Isaac Lenaola and E.K.O. Ogola ably demonstrated the application of the said legal statutes and gave an interpretation of the 2010 constitution and the election act, insofar as possession of a university degree is concerned.
In the case of Janet Ndago Mbete vs IEBC and Hassan Joho Petition No. 116 of 2013, the commission cleared the 3rd respondent (Hassan Joho) based on the completion letter from the university and defended the position in court as proof that the 3rd respondent had indeed received a university education. It therefore boggles the mind when Chebukati purports to say that both Jimi Wanjigi and Walter Mongare (an afterthought) do not possess university degrees.
In fact, in recognising and applying the law properly, the commission had indeed accepted and cleared Mongare’s presidential candidacy based on university letters that showed that he had completed his studies. This it did by communicating and confirming that he had met all the statutory requirements. So, why did Chebukati annul his earlier decision, which clearly came as an afterthought?
The revocation of Mongare’s clearance by Chebukati followed in the wake of Wanjigi’s complaint to the IEBC that he was being discriminated against. Is it not the case that once a candidate has been cleared by the returning officer Chebukati has no powers to quash the nomination unless through a judicial process?
Ten days after the March 4 general election, on 15 March 2013, High Court judge Isaac Lenaola in his substantive ruling quoted from the Blacks Law Dictionary, 8th Edition, which defines a degree as; “a title conferred on a graduate of a school, college, or university either after the completion of required studies or in honour of special achievements.” The judge also quoted from the Concise Oxford Dictionary, 10th Edition, which defines a degree as; “an academic rank conferred by a college or university after examination and or after completion of a course, or conferred as an honour.”
Summing up his argument, Judge Lenaola said, “I am therefore in agreement with the 3rd respondent that a degree is not a physical connotation, but a process whose pinnacle is the graduation. Indeed, the Concise Oxford Dictionary, 10th Edition defines a graduate as one who has ‘successfully completed a degree’ and a graduand as ‘person who is about to receive an academic degree’. It is therefore clear to me that, the graduation ceremony cannot be used as measure to determine whether one had a degree or not. In my view what matters is that a person has attended school, undertaken the studies envisaged and has passed all the requisite exams for the conferment of the degree. Having found as above, I am satisfied that the 3rd respondent holds the qualifications envisaged by Section 22 (2) of the Elections Act.”
The revocation of Mongare’s clearance by Chebukati followed in the wake of Wanjigi’s complaint to the IEBC that he was being discriminated against.
In a related ruling delivered before the 4 March 2013 elections, on 13 February 2013, Judge E.K.O Ogola made very much the same argument as Judge Lenaola in the case of Mable Muruli vs the Independent Electoral and Boundaries Commission.
“The issue for this court is then to determine whether or not after a person has successfully gone through the process leading to acquisition of a degree, he is qualified under section 22 (2) of the Act even when no physical certificate has been conferred. In my judgement, the respondent that is the (IEBC) has made very superficial interpretation of section 22 (2) of the Election Act. In my view, a certificate is merely a confirmation of what is already in existence. The petitioner (Mabel Muruli) has successfully completed the course programme. That programme has been acknowledged by the Commission of Higher Education (. . .) and the respondent has no option but to admit the petitioner to the relevant candidacy.”
Judge Ogola in his wisdom also said that, “there are many circumstances where people have been admitted to employment or to further study course on the basis of what they have proved to have achieved even when the graduation and certification is yet to take place. For the respondent to flagrantly disregard this peculiar position is to arrogantly violate the rights of the petitioner and it is the duty of this court to restore the same.”
As far as the Election Act goes this law has never been appealed, hence it is binding to both the respondents and the IEBC. Chebukati, therefore, cannot purport to change the law on a whim, otherwise he will be operating outside of the law.
Jimi Wanjigi’s case, like many other complainants’ cases, went before the IEBC’s Dispute Tribunal Committee at Milimani Courts. However, on 17 June 2022 the Tribunal upheld the earlier decision and did not clear him to run for the country’s top seat.
Road to 9/8: Risks Posed by Digitisation of Electoral Processes
This is the third of a series of articles that discuss some of the major issues at stake, and the roles played by various institutions in safeguarding the integrity of the August 2022 general election.
In our previous article, we highlighted the key challenges facing Kenya’s electoral integrity that are posed by the increased digitisation of election systems and the electioneering process. From cybersecurity risks to harms occasioned by human conduct on social networking platforms, there are various factors that could undermine the credibility of elections in the digital age. In this article, we review some of the measures adopted to mitigate the potential for such harms in the context of the upcoming elections.
Since the 2017 general election, there have been numerous changes to the legal framework applicable to the use of technology in different contexts. Some notable changes within the context of elections are the enactment of the Computer Misuse and Cybercrimes Act, 2018 (CMCA) as well as the Data Protection Act, 2019 (DPA), and the operationalisation of the Data Commissioner’s office. The effect of these changes is already being felt—the Data Commissioner was recently called into action following numerous complaints by citizens that they were registered as members of political parties without their knowledge or consent. In response, the Data Commissioner consulted with the Office of the Registrar of Political Parties and directed it to establish an opt-out mechanism that has since been implemented. However, a recent report authored for the Mozilla Foundation chronicled the practice of disinformation for hire; the use of social media influencers by political actors to spread false or misleading content on their opponents is common despite the provisions of the CMCA criminalising such conduct. This suggests that the existing measures taken may be insufficient.
Recalling some of the major challenges Kenya faced in the 2017 general election, we outline the key developments that have since taken place and highlight their potential impact on the integrity of the election administration system and the practice of electioneering online.
Integrity of the election administration system
The Elections Act mandates the Independent Electoral and Boundaries Commission (IEBC) to establish and maintain an electronic system for voter registration and identification and the transmission of results. Further, the Elections (Technology) Regulations outline how the IEBC is required to administer this system and the safeguards that they are required to put in place. They set out the principles that ought to guide the IEBC in data handling and storage. In 2017, the IEBC’s administration of the election system came under the microscope due to a series of unfortunate events, pointing, at best, to ineptitude.
During the 2017 election cycle, the IEBC debuted the Kenya Integrated Management System (KIEMS), billing it as a solution to the credibility issues that had previously plagued electoral processes. KIEMS uses electronic voter identification and transmission of tabulated results through mobile devices stationed at each polling centre. The server support and underlying IT for KIEMS was provided by French-based firm, OT-Morpho (later, IDEMIA). According to the then opposition, IDEMIA was contracted under dubious conditions and, from the start, was part of a fraudulent scheme to subvert the election process. Despite assurances from the IEBC on the credibility of its system, several occurrences cast significant doubts over the elections. For one, a week prior to the elections, the IEBC’s ICT manager in charge of the KIEMS—Chris Msando—was found murdered shortly after appearing on a news segment assuring Kenyans of the integrity of KIEMS and his centrality to the security of the system. To date, the circumstances of his death are not clear, and no one has been charged.
Secondly, during the elections, the transmission of results was hampered by poor connectivity, with approximately 11,155 polling stations out of the total 40,883 lacking sufficient network coverage. At some point, the tallying of results was briefly interrupted. All these factors were relied on by the petitioners in the 2017 presidential election petition, and this led to the Supreme Court calling into question the integrity of the servers used to facilitate the transmission and storage of the election results. Perhaps the most notable occurrence in the discussions on OT-Morpho’s involvement in the election was the IEBC indicating that it was unable to provide access to the election servers due to the time difference between Kenya and France. In its eventual judgment, the Supreme Court found that there were several irregularities plaguing the electronic transmission system and this contributed to its decision to annul the election. After the nullification of the elections, one of the IEBC’s commissioners fled the country, the CEO was terminated and, citing a lack of faith in the chairman, three other commissioners resigned. These positions, including that of the late Chris Msando, have since been filled. It is notable that the chairperson remains in office, despite the debacles of 2017.
Reeling from the events of the 2017 election, the IEBC conducted a post-election evaluation exercise in 2019 to inform its strategic approach to the 2022 elections. This process not only informed the legislative amendments that the IEBC has recently supported in parliament such as the Election (Amendment) Bill, 2021, but also the preparation of the IEBC’s ICT capacity. Based on the evaluation, the IEBC has acquired a primary and secondary data centre in Kenya and has put in place a Joint Technical Committee with the Communications Authority to map out the network coverage challenges.
However, there are significant challenges facing the IEBC. While the IEBC has moved away from IDEMIA, its procurement of Smartmatic International Holding B.V. is currently being challenged by one of the other contenders for the contract, Risk Africa Innovatis. This is not the first time Risk Africa Innovatis has challenged the IEBC’s procurement of a biometric service provider. In 2017, it challenged the procurement of IDEMIA on similar bases as its current challenge of Smartmatic’s award. Among these challenges, is that Smartmatic International Holding B.V. has been adversely mentioned in the Philippines, Venezuela, Uganda, Nigeria, and the USA over its credibility. While Risk Africa Innovatis is a Kenyan-owned company, Smartmatic is a multinational initially incorporated in the US by several Venezuelan nationals. In several elections it administered in Venezuela, the Philippines, and the United States, Smartmatic faced controversy over the integrity of its systems as well as its links to the Venezuelan government (in particular, alleged pay-outs to high-ranking government officials). For example, in Venezuela, independent election monitors concluded that it was likely that electronic election fraud had been committed in the 2004 presidential recall referendum administered by Smartmatic. Following adverse media coverage, Smartmatic undertook an internal restructuring that obfuscated its true ownership using what the US State Department described as a “web of holding companies in the Netherlands and Barbados”. Interestingly, Smartmatic supplied the biometric voting machines for Uganda’s recent 2021 elections, not exactly a ringing endorsement.
Smartmatic International Holding B.V. has been adversely mentioned in the Philippines, Venezuela, Uganda, Nigeria, and the USA over its credibility.
Beyond this, the IEBC’s procurement process seems to be off to a rocky start. For one, the delay in procuring Smartmatic’s services means that Kenyans may not get an opportunity to scrutinise the register of voters despite being legally entitled to do so. Further, the IEBC is also facing a legal challenge in respect of its procurement of Inform P Lykos Holdings for the printing of ballot papers. The Public Procurement Review Board nullified both awards to Inform P Lykos and Smartmatic but its decision has since been challenged at the High Court. The IEBC proceeded to sign contracts with both, citing the urgency of the election and the absence of an injunction from the High Court preventing it from contracting the two entities during the pendency of the appeal. When one considers that there are five years between election cycles, it is staggering that the IEBC would find itself in this position.
Certain of the broader issues facing the elections administration system have since been addressed by several legislative developments, principally the enactment of the DPA and the operationalisation of the Data Commissioner’s office. Supplementing the Elections (Technology) Regulations, the DPA and its accompanying regulations layer onto the IEBC’s obligations with respect to data collection, handling, and storage. These obligations have further been clarified by the Data Commissioner in a recently issued Guidance Note for Electoral Purposes. For example, the IEBC’s collection of voter registration information must be based on consent, and it must implement data protection mechanisms within the design of its systems. To ensure this is done, the Data Commissioner advises that a Data Protection Impact Assessment (DPIA) should be conducted by the IEBC and other election stakeholders such as the Registrar of Political Parties, who handle voter data, ahead of the elections.
For clarity a DPIA is required where personal data processing operations are likely to pose a risk to the rights of data subjects (in this case, voters). It guides risk mitigation efforts which should be undertaken by the person collecting and processing personal data, or whether such collection and processing should happen in the first place. A failure to conduct a DPIA resulted in the High Court’s recent revocation of the roll out of the Huduma Cards under the National Integrated Identity Management System. If the IEBC fails to conduct a DPIA, it is likely that this failure will feature either in the resulting election petitions or in court action prior to the elections. With respect to the storage of personal data, the general regulations issued under the DPA specify that the IEBC’s processing of personal data should be through a server located in Kenya, or the IEBC should at least maintain a copy of the server locally. This seems to be a nod to 2017 Supreme Court Judgement annulling the presidential election, which took issue with the unavailability of the IEBC’s servers.
In 2018, the CMCA was also enacted to provide for computer system-related offences such as unauthorised access or hacking. The CMCA established a National Computer and Cybercrimes Coordination Committee (referred to as NC4) which is tasked with coordinating the state’s response to cybercrime. Recently, the Cabinet Secretary for Interior and Coordination of National Government, who sits on the NC4, designated various parts of the country’s telecommunications infrastructure (including data centres and systems used to manage elections) as critical infrastructure under the CMCA. With this designation, the telecommunications infrastructure will benefit from enhanced security and scrutiny from the NC4, and any attempts to infiltrate or damage such infrastructure would attract criminal penalties under the CMCA. While this designation was linked to recent attacks on telecommunication masts and power grid, its link to the upcoming election is clear—the IEBC relies on telecommunication service providers to transmit results to its cloud servers. If compromised, the outcome of the election may be adversely impacted.
Electioneering on social media
The same measures that were adopted to bolster the integrity of the election administration system also serve to safeguard against the harms occasioned by the conduct of political actors on social media. In 2017, several media outlets reported that the now infamous Cambridge Analytica—a self-proclaimed political consultancy firm—was active in Kenya, offering services to various parties. According to Cambridge Analytica, its service offering included profiling online audiences based on regular demographics (for example age and gender) as well as personality. For the purposes of this profiling, personality is discerned from the audiences’ conduct on social media—the content which they consume, the individuals they interact with and other data points. Once audiences were profiled, political actors would be able to differentiate the messaging used based on the type of audience being targeted (in other words, to conduct microtargeting). Often, this messaging would include false or misleading information. To facilitate microtargeting, Cambridge Analytica would require large amounts of personal data. In the aftermath of the 2016 US elections, it was revealed that Cambridge Analytica harvested the personal data of millions of people through Facebook. Based on reports of its involvement in Kenya’s election, it is not clear whether Cambridge Analytica facilitated microtargeting or simply designed campaign communications strategy. However, what is clear is that it harvested Kenyans’ personal data through surveys.
This seems to be a nod to 2017 Supreme Court Judgement annulling the presidential election, which took issue with the unavailability of the IEBC’s servers.
Since the Cambridge Analytica scandal, Kenya has enacted the DPA and CMCA that are ostensibly expected to reduce the likelihood of microtargeting and other forms of harmful social media activity in the context of the elections. The access to and use of personal data is central to political campaigning in the digital age. Prior to the enactment of the DPA, this practice was largely unregulated. Political actors were able to obtain voters’ personal data from the publicly available voters’ register and the party member list that is available to parties through the ORPP. Their activities in processing this data for purposes of generating targeted messaging were also largely unsupervised. Save for the guidelines jointly issued by the National Cohesion and Integration Commission and the Communications Authority on bulk messaging and social media communications (NCIC-CA Guidelines), political actors were basically free to determine how to craft their messaging and target audiences. While the NCIC-CA Guidelines brought in a measure of transparency by requiring the source of political messaging to be disclosed within the body of the message, this is limited to communications disseminated through licenced telecommunications service providers.
The provisions of the DPA would serve to limit potential for microtargeting campaigns by raising the barriers to accessing personal data and increasing the scrutiny over political actors’ handling of personal data. For example, under the regulations issued under the DPA, entities involved in electioneering are required to register with the Data Commissioner, whether or not they qualify for an exemption. Further, the electorate whose data is being collected would be able to exercise rights against political actors and these entities such as requiring them to delete their personal data or refrain from processing it in the first place. Without the ability to freely collect and process personal data, and with the threat of legal action against them, it is arguable that political actors would be less likely to engage in these practices in the coming elections. However, this would largely depend on the role played by the Data Commissioner. For example, one would expect the Data Commissioner to spring into action in light of a recent acknowledgment by the IEBC that illegal transfers of voters were undertaken on its electronic voter register.
Aside from being reliant on the proactivity of the Data Commissioner, the efficacy of the data protection law framework in relation to microtargeting campaigns is limited by provisions of election laws. While the collection of personal data by the IEBC or ORPP is initially based on consent, once collected, these entities’ subsequent processing operations are provided for in statute and as such are not subject to further consent or the exercise of certain rights by the electorate. For example, the publication of the voter register cannot be stopped by a data subject due to its provision in law. One may only be able to request minimisation of unnecessary data such as contact information. Once published, this voter register would be accessible to political actors who may use the information gathered to engage in microtargeting.
In relation to the nature of campaign messaging shared through social media, the CMCA criminalises the spread of misleading or false content. This is in addition to the criminalisation of hate speech already contained in the National Cohesion and Integration Act. To date, the provisions of the CMCA relating to the spread of misleading or false content have only been invoked in politically charged contexts and in a seemingly selective manner. For example, while a blogger was charged with this offence under the CMCA for spreading alarming information regarding COVID-19, a Member of Parliament was not charged for what was effectively the same offence. Despite this law being in place for nearly three years, it has not been implemented in instances where researchers have identified specific social media accounts that are engaged in disinformation-for-hire campaigns.
Once published, this voter register would be accessible to political actors who may use the information gathered to engage in microtargeting.
Aside from this, there are other shortcomings with this approach. For one, the use of criminal sanctions to limit the types of speech people engage in is generally discouraged due to the risk posed to the freedom of expression that is crucial in healthy democracies. Further, the nature of online speech is often incompatible with traditional law enforcement mechanisms and, therefore, detecting and prosecuting such offences is bound to be difficult. The state may find itself responding disproportionately to situations where harmful content is being spread online, such as by shutting down internet access. Instead of criminalising certain speech, a few democracies have recently turned to codes of conduct that govern the conduct of political actors online. The most notable of these is the Election Pledge developed by the Transatlantic Commission on Election Integrity. Recognising that healthy political engagement online is primarily driven by political actors, the Election Pledge attempts to have these actors publicly and voluntarily commit to above board conduct such as avoiding the spread of mis-and disinformation, avoiding the spread of hate speech, and using personal data appropriately.
The nature of online speech is often incompatible with traditional law enforcement mechanisms and, therefore, detecting and prosecuting such offences is bound to be difficult.
All in all, a number of steps have been taken that in principle should improve the legal framework applicable to elections as they are conducted in the digital age. However, fundamental concerns remain with regard to the procurement of the IEBC’s ICT procurement and its internal capability. At its core, the conduct of the IEBC and political actors involved in the electoral process will determine the credibility of the process. The IEBC has not yet discharged its mandate of establishing in the public mind how it will avoid the debacles of 2017. Aside from this, the steps taken to safeguard the electorate from practices such as microtargeting seem limited by the provisions of election laws and the proactivity of sector regulators such as the Data Commissioner and the Communications Authority will play a significant role in setting the tone for political actors. In our next article, we will shine a spotlight on the IEBC and consider its readiness to conduct this election in a transparent, credible and lawful manner.
This article was authored in collaboration with the Kofi Annan Foundation whose electoral integrity programme is supported by the United Nations Democracy Fund.
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