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Securing Kenya’s Electoral Integrity: Regulating Personal Data Use

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The Data Protection Act needs to be fully operationalised As Kenya heads into the 2022 election cycle and a sensitisation exercise undertaken concerning the use of personal data in campaigns.

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Securing Kenya’s Electoral Integrity: Regulating Personal Data Use
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In considering the various threats posed to electoral integrity by digital platforms, it is imperative to discuss the use and regulation of personal data. The link between access to personal data on the one hand and the commission of electoral fraud or voter manipulation on the other has been examined severally in academic articles and news media. The pertinence of this discussion in Kenya is clear considering two major developments have occurred since the last election cycle – parliament enacted the Data Protection Act (DPA) and approved the appointment of a Data Commissioner. The nature of our discussion in this article revolves around whether these changes are likely to result in a positive material change in the conduct of campaigns, and if not, what can be done to ensure this. We focus on the use and regulation of personal data in the context of political messaging/campaigning.

Political communication

Political messaging is central to electoral integrity. How political actors conduct themselves in the dissemination and crafting of their messages can either promote or undermine a democracy. The aim of political messaging is often persuasion. Through their messages, political actors hope to convince voters to support their policy positions or candidature. In the not-so-recent past, political messaging in Kenya—and generally around the world—was aired through traditional broadcast media. Radio, newspapers, and television served as the primary means through which political actors could reach their audiences. The nature of these means of communication, and the context surrounding their use, often meant that political messaging was easily discernible from regular content. In other words, audiences could easily tell when they were looking at a political advertisement due to the overt nature of the means and message. Further, since these are mass forms of communication, there existed little opportunity for targeted messaging – differentiating the type of messages disseminated based on the receiving audience and thereby disguising the political aims sought through the message. This meant that the electorate often had a shared experience of elections because they were subjected to uniform persuasion tactics by political actors.

Nevertheless, even when using one-to-many forms of communication, there were attempts to use targeted messaging. During the 2007/8 elections, for example, some local language radio stations were used to fan the flames of ethnic violence by exploiting the homogeneity of their respective listeners to disseminate messages of hate. In another example, bulk text messages targeted at specific communities were used to divide Kenyans along tribal lines to the extent that the then Safaricom CEO, Michael Joseph, considered blocking text messaging services.

The premise of targeting is simple. With basic demographic information, a person crafting a message can do so in a manner that appeals to specific subsets of the target population with a view to persuading the recipients. The demographic information required for targeting is often clearly observable and easily obtainable—names, ethnicity, age, occupation, etc. Through targeting, the messages disseminated to members of one demographic may vary considerably from messages sent to the rest. Targeting has been shown to be practically effective, and in some cases beneficial. In Wajir, community radio has been used to educate the local community on the effects of climate change as it relates to them. The fact that the information has been presented in the community’s language Somali, coupled with the relation of the messaging to their lived experiences, has led to robust community engagement on the topic. In political contexts, targeted messaging may be used to raise awareness around key policy or legislative decisions to ensure affected individuals are involved in the decision-making process. However, it may equally be used to achieve undesirable outcomes as we noted in relation to the bulk text messages used in the 2007/8 elections.

Targeting and microtargeting: why split hairs?

One election cycle later, political parties involved in the 2013 elections had significantly increased their reliance on digital campaigning and engaged in more detailed targeting. With an increased rate of internet connectivity and smartphone penetration in the country, political actors were better able to reach audiences at an individual level. For example, messaging targeting younger audiences appealed to their concerns about unemployment, while older audiences were informed of candidates’ plans for national stability. This was perhaps aided by the fact that a lot more demographic information was readily available on social media, and there existed no legislation regulating the collection and use of such personal data. However, the use of this ordinary targeting did not reflect the state of technology at the time.

Through the introduction of social media, and the large-scale collection of personal data that takes place on such platforms, the nuance applied to targeting had considerably developed by the 2013 election cycle. The sheer amount and scope of personal data available to political actors through these platforms meant that the precision of targeting could be infinitely refined. Essentially, there was a shift from targeting to microtargeting, with the major difference being the amount and scope of personal data used. While targeting involves using basic demographic data to craft messages for subsets of the target audience, microtargeting makes use of a wider range of data points such as online habits gleaned from trackers on social media platforms. With a broad enough range of data points, individuals conducting microtargeting can create profiles on each audience member and tailor individual messages that are a lot more subtle and convincing than ordinary targeting.

If a political actor were deploying ordinary targeting, their messaging would focus on the homogeneity of the receiving audience, assuming that the factors that would persuade them lie in their homogeneity. In microtargeting, the audience, despite being homogenous, would be further broken down at a granular level, bringing out each individual’s unique profile, and the motivations behind their political positions. The messaging targeted at such individuals is often presented in a seemingly organic manner. For example, by tracking an individual’s social media use either directly or through analytic firms, political actors can create a profile on the said individual and use that to inform the type of online advertisements they would purchase and organically place on the individual’s social media feed. In essence, microtargeting campaigns hone in on the specific trigger points of an individual or small blocs of voters, seeking to influence their behaviour during campaigns and on voting day in subtle ways.

There was a shift from targeting to microtargeting, with the major difference being the amount and scope of personal data used.

There is not enough publicly available evidence to assess the extent to which political actors in Kenya engaged in microtargeting during the 2013 and 2017 election cycles, perhaps other than the documented use of social media advertising. However, in both cycles, it is widely reported that Cambridge Analytica rendered its services to various political actors in the country. Cambridge Analytica’s involvement in Kenya—which it described as “the largest political research project ever conducted in East Africa”—entailed a large-scale gathering of Kenyans’ data through participant surveys. This, coupled with the personal data it had already improperly acquired through Facebook, ostensibly allowed it to carry out microtargeting. It claimed to be able to craft messages specific to individuals as opposed to broad demographics. In particular, it admitted to developing messaging to leverage voters’ fears of tribal violence.

The risk posed to electoral integrity by practices such as microtargeting are clear – an inability on the electorate’s part to discern organic content from political advertising calls into question their democratic autonomy and the legitimacy of political processes. The lexicon adopted by some commentators in relation to these practices—“digital gerrymandering” and “computational politics”—is therefore unsurprising. The progression of political messaging from a relatively transparent and clearly discernible practice which was uniformly applied to the electorate, to a subtle, insidious process which is based on a sophisticated level of differentiation is possible, in large part, due to the unregulated collection and use of personal data.

Personal data use in targeting and microtargeting

The idea that one can sort personal data based on certain traits and analyse it for purposes of targeting is not novel. Neither is the audacity of the attempt. In her book If Then: How One Data Company Invented the Future, Professor Jill Lepore chronicles how Simulmatics Corporation—a company founded in 1959—laid the foundation for the type of microtargeting Cambridge Analytica was engaged in. Simulmatics, through its “People Machine”, purported to be able to predict voter behaviour by making use of predictive models it developed using large swathes of personal data which it categorised into 480 subsets. Their aim was to breakdown voter profiles as granularly as possible, and to predict how each subset would respond to political stimuli. They sought to forecast voter behaviour and influence the 1960 US elections. They failed. In their pursuit of this aim, however, they foreshadowed and contributed to current microtargeting practices, which appear to be significantly more effective. They certainly highlighted the centrality of personal data to the development of such predictive models, long before average voters began publishing vast amounts of personal data on social media platforms.

As we previously discussed, the type and scope of personal data required to conduct regular targeting is basic. In Kenya, such data has previously been easy to obtain, with little-to-no controls on its usage. In everyday life, Kenyans encounter dozens of vectors through which their personal data is collected. From mobile money payments to entry logs at government buildings, Kenyans are forced to part with crucial personal data to obtain various services. The value of this personal data for commercial advertising has been recognised by data brokers who reportedly harvest such data for direct marketing. Political parties have also collected personal data from such brokers for targeting.

The lexicon adopted by some commentators in relation to these practices—“digital gerrymandering” and “computational politics”—is therefore unsurprising.

For political parties and candidates, the avenues through which they can harvest personal data are not limited to brokers. In an article on political microtargeting in Kenya, Hashim Mude helpfully identifies four additional avenues. The first of these is the register of voters which is publicly accessible during election periods by virtue of Section 6 of the Election Act. The second avenue is the membership lists compiled by the political parties themselves by virtue of their compliance obligations under Section 7 of the Political Parties Act (i.e., parties have to demonstrate that their composition is sufficiently representative). More traditionally, political parties also conduct direct collection through their grassroots networks – this is the third avenue. Finally, political parties are also able to collect personal data from other registered parties through the publicly accessible members’ lists under Section 34(d) of the Political Parties Act.

The data collected through these means primarily serves political actors in regular targeting; microtargeting would require them to gather a much broader set of data points to complement the basic demographic data they have access to. While political parties may not be able to gather such specific data sets themselves, they are often able to either contract analytic firms such as Cambridge Analytica to do so, or to leverage the data gathered by social media platforms by purchasing advertising whose audience is curated to fit the needs of the political party. This notwithstanding, evidence suggests that political parties primarily engaged in regular targeting, i.e., crafting and disseminating communications based on broad demographics such as ethnicity.

Despite Cambridge Analytica’s implication that the scope of personal data it harvested enabled it to conduct microtargeting, the evidence that is publicly available seems to suggest that basic targeting through bulk messaging along tribal lines was the primary outcome of their operation. However, one of the material differences arising from their involvement was the vast amount of personal data they collected both directly and indirectly, likely rendering this regular targeting even more potent than usual. They were able to collect such data due to Kenya’s weak regulatory framework. As Cambridge Analytica’s CEO at the time explained, Kenya’s virtually non-existent privacy laws provided them a conducive environment for their activities. This is arguably one of the main reasons political actors have been able to get away with the improper harvesting and use of personal data for both targeting and microtargeting in the past. With the enactment of the DPA, it is hoped that this will change.

Towards regulation: is there a practical difference?

As a starting point, it must be noted that Kenya’s constitution guarantees every person the right to privacy. However, until 2019, Kenya did not have a centralised law detailing how this right should be respected and fulfilled, particularly in an increasingly digital age. The DPA therefore seeks to regulate the processing of personal data. By putting in place restrictions on the collection, use, sharing and retention of data relating to identifiable natural persons, the DPA is expected to mitigate the improper handling of personal data and safeguard the right to privacy. It applies to all persons handling personal data, including political parties and candidates.

Practically, the enactment of the DPA means several things for political actors seeking to make use of personal data. For one, the obligations introduced by the DPA would invariably hamper political actors’ ordinary collection and use of personal data. Since the DPA contains prescriptions at each stage of the data lifecycle (collection, storage, use, analysis, and destruction), political actors have to be a lot more careful. For example, while it was previously easy to collect personal data indirectly and indiscriminately, political actors now have to do so directly seeking the consent of the individuals to whom the data relates (data subjects).

In everyday life, Kenyans encounter dozens of vectors through which their personal data is collected.

The collection and use of personal data would also have to be grounded in a lawful basis. Further, the principles that underpin the DPA would operate to restrict some of the microtargeting practices political actors are engaged in. In requiring that political actors only collect and make use of the minimum amount of data required for the lawful purpose they are engaged in, the DPA forecloses, to some extent, microtargeting which relies on a wide scope of personal data. The DPA also brings the practices around personal data collection and use under the supervision of the Data Commissioner, with whom these political actors would be required to register.

It is not yet clear what tangible effects (if any) the DPA has had, or will have, on the practice of targeting and microtargeting other than, perhaps, a broader awareness of privacy rights among individuals. It is also too soon to measure this because the operationalisation of the DPA is, at the time of writing, still ongoing. To be clear, the DPA is fully in force and is binding. However, key components such as the draft regulations are yet to be put in place; they were only recently developed. Without these, the Data Commissioner would be unable to, among other things, register data controllers and data processors (in our case political parties and candidates) to ensure that their activities are monitored. The proposed regulations, for example, would require individuals and entities involved in canvassing for political support to mandatorily register under the DPA, enhancing the Data Commissioner’s visibility of such actors, and facilitating enforcement action (if required).

The fact that the DPA is yet to be fully operationalised has not prevented Kenyans from relying on it to hold institutions accountable. The Data Commissioner commendably provides the public with an opportunity to file a complaint through its website even though the regulations relating to compliance and enforcement are yet to be enacted. In June of this year, a large number of Kenyans discovered—through the Office of the Registrar of Political Parties’ (ORPP) online portal—that they were registered as members of political parties without their knowledge or consent. After receiving over 200 complaints, the Data Commissioner held a meeting with the ORPP to arrange for the deregistration of those individuals. Less than a month after the ORPP scandal, the guest list of an upscale hotel in Nairobi was leaked online for purposes of revealing that a certain politically connected individual had resided there for a period of time. Shortly thereafter, an advocate filed a public interest complaint with the Data Commissioner. In response, the Data Commissioner indicated that it would look into the possibility of a data breach.

The implications of these complaints to the Data Commissioner are twofold. On the one hand, it is a positive development that Kenyans are aware of the office and its mandate. However, on the other, it is concerning that the improper handling of personal data is still common nearly two years after the enactment of the DPA. Such practices are indicative of either the absence of a sufficient understanding of the DPA and its requirements, or a blatant disregard of those requirements, though the two are not mutually exclusive. Putting in place the systems and infrastructure required to operationalise the DPA is important. However, it may not be very effective if the culture around data use is not reformed.

The fact that the DPA is yet to be fully operationalised has not prevented Kenyans from relying on it to hold institutions accountable.

From the improper handling of personal data, it is apparent that broad sensitisation around digital rights is required. Innovative initiatives such as Nanjala Nyabola’s Kiswahili Digital Rights Project which seeks to “translate and popularise’” key digital rights terms into Swahili may serve as a useful starting point for the sensitisation of individuals. Indeed, one of the Data Commissioner’s functions under the DPA is raising awareness around data protection. Synergistic collaborations with academics, civil society, and even the private sector can greatly contribute to a better understanding of data protection concepts, and how various actors are to conduct themselves. These efforts may also increase the electorate’s understanding of how microtargeting works, and the steps they can take to reduce their susceptibility to targeted messaging, such as using search engines that do not allow trackers for example.

For the use of personal data in campaigns, the involvement of political parties and candidates in these sensitisation efforts is especially crucial. As noted by the UK’s Information Commissioner’s Office (ICO) “the true ethical evolution of political campaigning in the long term will only be possible if political parties recognise that they are drivers in ensuring a high standard of data protection through the whole system”. In fact, the ICO proposed that such sensitisation be carried out by political parties and candidates in collaboration with electoral commissions (in our case the IEBC) and data protection authorities. By consulting with the two authorities, political parties and candidates would also be able to agree on standards that would guide their use of commonly held data such as that derived from the voter register and party membership lists. These efforts could perhaps even dovetail into public commitments by political actors to shun the improper use of personal data in campaigning. An example of such a commitment is the Pledge for Election Integrity developed by the Transatlantic Commission on Election Integrity.

Content regulation

The efforts to improve the culture around personal data use in campaigns could further be supplemented by regulation of the actual political messaging that results from this data use. The result of microtargeting campaigns is often political advertising that is precisely targeted and subtle. Kenya’s legal framework governing political advertising is currently underdeveloped. Aside from the Communication Authority’s (CA) guidelines on bulk messaging, there are no detailed guidelines on how political advertising ought to be carried out and how transparency can be achieved. The CA’s guidelines effectively aim to increase the transparency of political advertising done through bulk text messages. This is the aim of the regulation of political advertising – reclaiming the transparency lost over time through advancements in technology. Considering the subtle nature of messaging derived from microtargeting campaigns, an increase in transparency would likely contribute to restoring (or at least safeguarding) some level of autonomy for the electorate.

The CA guidelines would sufficiently cover the use of ordinary targeting in the form of bulk text messages as we head into the 2022 elections. However, further prescriptions may be required to deal with microtargeting conducted through social media. Such prescriptions could include disclosure obligations on the part of political parties and candidates when running advertisements. They could also include transparency obligations on the social media platforms which host these advertisements. For example, some platforms have taken to labelling accounts which are government-affiliated or are running political advertisements.

There are no detailed guidelines on how political advertising ought to be carried out and how transparency can be achieved.

Armed with the knowledge that a particular piece of content is sponsored by a certain political actor, a voter may at least have an opportunity to question the motives pursued. Authorities such as the IEBC and the Data Commissioner may be able to work with social media platforms to identify appropriate transparency tools that could be deployed in the forthcoming elections. Such a collaboration would have to be alive to unique local contexts. For example, applying labels to the accounts of political parties and candidates may not be sufficient considering the practice of hiring third party groups to push certain messaging online. One such group is known as the 527 militia, its name being derived from the amount of money each member is paid to run with a campaign – KShs527 (approximately US$5).

Heading into the 2022 election cycle, Kenya ought to do a few things. First, the DPA should be fully operationalised. Second, the Data Commissioner should collaborate with political actors and the IEBC to engage in widespread sensitisation around data protection and the use of personal data in campaigns. Third, political parties should commit to the proper use of personal data in their campaigns, perhaps even signing public pledges as a show of goodwill. Fourth, political advertising on social media platforms should be more closely regulated to ensure transparency. Finally, the Data Commissioner and the IEBC should work with social media platforms to develop appropriate tools that would be applied in Kenya to enhance platform accountability and transparency of messaging.

Part 1. Securing Kenya’s Electoral Integrity in the Digital Age

This is the second of a five-part op-ed series that seeks to explore the use of personal data in campaigns, the spread of misinformation and disinformation, social media censorship, and incitement to violence and hate speech, and the practical measures various stakeholders can adopt to safeguard Kenya’s electoral integrity in the digital age ahead of the 2022 elections. This op-ed series is in partnership with Kofi Annan Foundation and is made possible through the support of the United Nations Democracy Fund.

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Abdulmalik is a legal researcher and consultant who holds a law degree from Strathmore University. His research interests include content moderation, intermediary liability and more broadly, the nexus of social media and democracy. Abdulmalik has published academic articles in peer reviewed journals, and has previously consulted for the World Bank. He currently serves as a non-permanent member of the Strathmore Law Clinic’s Oversight Board. Dr. Isaac Rutenberg is a Senior Lecturer and the Director of the Centre for Intellectual Property and Information Technology Law at Strathmore Law School in Nairobi, Kenya. He is also an Associate Member of the Center for Law, Technology, and Society at the University of Ottawa, Canada.

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Tigray is Africa’s Ukraine: We Must Build Pan-African Solidarity

A genocide is taking place in Tigray. Why is there no mobilization of African civil society organizations, non-governmental bodies, religious institutions, and individuals in support of Tigrayan refugees?

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Tigray is Africa’s Ukraine: We Must Build Pan-African Solidarity
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Two months after the Russian invasion of Ukraine, more than  5 million Ukrainians fleeing the war have crossed the borders into other European countries. While this is largely a testament to the massive scale of the attack by Russian forces that has forced millions of Ukrainians to flee their homes in all directions, it also has a lot to do with the warm welcome and sympathy extended to these refugees by European nations.

Europeans both individually and collectively stood in solidarity with and committed to supporting Ukrainian refugees in all ways. Member states of the European Union established reception centres and facilitated the right to travel, stay, and work for all Ukrainians within days of the war starting. Families across Europe (and in the United Kingdom) volunteered to host Ukrainian families, organizations raised funds, individuals donated basic necessities, and many even travelled to borders to personally welcome Ukrainian refugees.

While this “gold standard” welcome by European countries—who are generally accused of being hostile to other (particularly black and brown) refugees—has been the subject of heated discussion, a question that is yet to be thoroughly addressed is why such solidarity is not seen in other parts of the world. More particularly, using the experiences of refugees from the Tigray war as a case study, we would like to ask why the multiple conflicts ravaging the African continent fail to inspire such a response by African countries.

The Tigray war, characterized as the world’s deadliest war, has been ongoing for seventeen months. Thus far, more than 500,000 people are reported to have died. Terrible atrocities amounting to war crimes and crimes against humanity, including scores of massacres, weaponized sexual violence, and a total humanitarian blockade have all contributed to creating conditions aptly described by the Director-General of the World Health Organization (WHO) as “hell”.  Despite the length and brutality of this conflict, however, the number of Tigrayans who have managed to escape into neighbouring African countries is relatively minuscule.

As far as we are able to establish, about 70,000 Tigrayans crossed into Sudan during the first few days of the war. We can add to these the thousands of Tigrayans who worked and lived in Djibouti before the war and the few hundreds that managed to flee to Kenya following the ethnic profiling and mass arrests they faced in Ethiopia. It is possible to argue that the number of refugees from Tigray has remained low mainly because the borders have been blocked by the Ethiopian regime and its allies. This draconian blockade has indeed been used as a tool of war by Prime Minister Abiy Ahmed to completely cut off Tigray from the rest of the world in order to hide atrocities and control the narrative. It is also believed to have the approval of key members of the international community seeking to mitigate the impact of the war on the broader Horn of Africa region and its potential contribution to the migration crisis in Europe.

Even so, taking into account the precarious situation of the millions of Tigrayans in the region itself and in the rest of Ethiopia along with well-known patterns of illicit migration from conflict areas, it is reasonable to wonder if the low number of Tigrayan refugees is due to the receptiveness—or lack thereof—of neighbouring countries as well as the blockade. With this in mind let’s look more closely at some policies and practices in the region that can be perceived as obvious deterrents to those seeking refuge.

Political and diplomatic support given by African countries to the regime in Addis Ababa 

The Tigray war is happening in the host country of the African Union (AU) and the second-most populous country on the continent. However, this conflict has not been included as an agenda item in any of the meetings of the AU heads of states that have been convened since its onset in November 2020. The only significant statement that was made regarding this conflict by the Chairperson of the AU, Moussa Faki Mahamat, was one that endorsed the war. Since this early statement, the AU has assiduously ignored the overwhelming evidence of the gruesome atrocities and violations of human rights and humanitarian laws perpetrated during this conflict. Nor has the AU acknowledged the direct involvement of Eritrea and Somalia—both members of the AU—who deployed troops into Tigray and have been credibly accused of committing grave atrocities.

Diplomatically, African countries have given cover to the Ethiopian regime in all multilateral forums including the United Nations Security Council (UNSC). The passionate and well-received speech by Kenya’s ambassador to the UN, Martin Kimani, in opposition to Russia’s war of aggression against Ukraine, makes one wonder why the same passion is absent for crises nearer home, including Tigray. Sadly, however, not only do the so-called A3 countries on the UNSC continue to frustrate action against the Ethiopian regime, African countries have voted against measures to establish investigative mechanisms into the atrocities committed in Tigray. Even more disappointingly, on the 31st of March, Kenya voted in support of a bill introduced by the Ethiopian regime to halt funding for the International Commission of Human Rights Experts set up to investigate the crimes and human rights abuses that took place in Tigray.

The AU has assiduously ignored the overwhelming evidence of the gruesome atrocities and violations of human rights and humanitarian laws perpetrated during this conflict.

These actions indicate that the AU and its member states have either failed to recognize the gravity of the human rights and humanitarian violations in Tigray or are unwilling to address violations by other member states, however grave, as a matter of policy.

Forced Repatriation to Ethiopia

This policy and the attendant practices in turn mean that Tigrayans or other minorities seeking refuge from state-sanctioned violence in the region are denied official welcome and feel insecure even when they are sheltered there as refugees under UN protection. Tigrayan refugees in the region are under continuous threat from Ethiopian and Eritrean intelligence and security officials that are fully capable of crossing borders to harm or forcibly repatriate them. Just to look a bit more closely at the experience of Tigrayan refugees in the region, in Sudan, senior Ethiopian officials and supporters of the regime have on several occasions threatened to forcefully repatriate Tigrayan refugees from the Sudanese refugee camps that are under the auspices of the United Nations High Commissioner for Refugees (UNHCR).

In Djibouti, the threat of forced repatriation was realized when several Tigrayans, who had committed no known crime, were apprehended and returned to Ethiopia. This clear breach of the principle of non-refoulement has excited no response from other African governments or African Civil Society Organizations (CSOs). 

Tigrayans also live in fear of forced repatriation even in the relatively more friendly Kenya. The December 2021 abduction of Tigrayan businessman Samson Teklemichael in Nairobi in broad daylight is a prominent example of the insecurity of Tigrayan refugees in Kenya. In addition, personal accounts from Kenya suggest that newly arriving refugees can fall victim to immoral actors demanding large sums of money to facilitate registration. Tigrayans who have been unable to obtain proper documentation for this and other reasons risk being thrown in jail. The lucky few that are registered are coerced to relocate to remote and inhospitable camps. As a result of this, and due to the increased insecurity created by the presence of Ethiopian and Eritrean intelligence officers operating in Nairobi, Tigrayans in Kenya are increasingly opting to remain hidden. This means that the actual number of Tigrayan refugees in Kenya is unknown.

The December 2021 abduction of Tigrayan businessman Samson Teklemichael in Nairobi in broad daylight is a prominent example of the insecurity of Tigrayan refugees in Kenya.

It also bears noting that in response to the war in Tigray, the Kenyan government tightened its borders with Ethiopia, essentially closing the only avenue open for Tigrayans fleeing conflict and ethnic-based persecution by land. Moreover, Tigrayan refugees who have been stopped at Kenyan border controls in Moyale have at different times been apprehended and returned by agents of the Ethiopian regime.

Harsh conditions facing Tigrayan refugees

Sudan hosts the largest number of documented Tigrayan refugees. An estimated 70,000 Tigrayans fled to Sudan to escape the brutal invasion and occupation of Western Tigray. While these people were welcomed with extraordinary kindness by the people of Eastern Sudan, the refugee camps to which they were relegated are located in remote and inhospitable regions with almost no basic infrastructure. As a result, international organizations have been unable to provide adequate support and Tigrayan refugees have fallen victim to extreme weather and fires.

Similarly, Tigrayans remaining in Djibouti are kept in remote camps under unbearable conditions, facing maltreatment and abuses such as rape and sexual violence including by security forces. The whereabouts of the thousands of refugees who escaped from abuses and starvation at Holhol, one of Djibouti’s remote refugee camps where over 1,000 Tigrayans remain, are unknown.

The disinterest of African media and society

Arguably, the above realities describe the failings of African governments in terms of welcoming and protecting refugees fleeing conflict. But what of other sections of African society? Why are there no responses akin to the mobilization of European civil society organizations, non-governmental bodies, religious institutions, and individuals to support Ukrainian refugees? Even taking into full account economic limitations likely to affect responses to such crises, this could potentially speak to a larger failure in terms of building pan-African solidarity, not just as a political concept but as a grassroots reality. In the specific case of the Tigray war, this is further reflected and augmented by the minimal coverage of the war in African media outlets relative, for example, to the extensive daily coverage given to the Ukraine war. Moreover, African intellectuals and intercontinental forums have shown little to no interest to address an ongoing genocide that is quickly paralleling the worst examples of mass atrocities on the continent thus far.

What can we learn from the European Response to the Ukraine crisis?

In many ways, the European response to the Ukraine crisis has been unprecedented and arguably sets a new standard for welcoming refugees from all regions including Europe itself. In the African context, the Tigrayan experience of policies and practices that endanger and harm the most vulnerable seeking safety reveals an urgent need to take these lessons on board.  With this in mind, we can tentatively outline the following suggestions.

First, we as Africans should find mechanisms for building pan-African solidarity amongst citizens that are not contingent upon the will of our governments. This can only be achieved if African media, civil society organisations, thought leaders, and other influencers commit to prioritizing what is happening on the continent. In this interconnected and highly digital age, it is no longer acceptable that an African anywhere on the continent does not know about what is happening in Tigray as much as, or more than, they know about what is occurring in Ukraine.

We as Africans should find mechanisms of building pan-African solidarity amongst citizens that are not contingent upon the will of our governments.

Second, African citizens should protest policies and practices by African governments that favour state-sanctioned violence and support regimes over vulnerable communities. We all, as Africans, are prone to fall victim to state violence and violations of human rights in our countries and this necessitates pan-African reflection on human rights for all, indigenous communities as well as refugees and migrants.

Third, refugees and migrants are rarely a burden on the host countries and communities. Those fleeing the Tigray war, for example, are generally highly educated and carry unique skills that could contribute to societies wherever they land. Harnessing these resources on the continent should be a priority. Moreover, refugees enrich host communities and facilitate regional and continental integration which the AU and its member states continue to discuss, but never materialize.

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Op-Eds

UK-Rwanda Refugee Deal: A Stain on President Kagame

Rwanda’s proposed refugee deal with Britain is another strike against President Paul Kagame’s claim that he is an authentic and fearless pan-Africanist who advocates for the less fortunate.

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UK-Rwanda Refugee Deal: A Stain on President Kagame
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In mid-April 2022, Rwanda and Britain unveiled a pilot scheme in which the latter will ship off asylum seekers who arrive in Britain “illegally” to the former for the whopping sum of £120 million. Although full details of the deal remain sketchy, it is believed that it will target mainly young male refugees who apply for political asylum in Britain. Anyone who entered the UK illegally since January 1, 2022, is liable to be transferred. Each migrant sent to Rwanda is expected to cost British taxpayers between £20,000 to £30,000. This will cover accommodation before departure, a seat on a chartered plane and their first three months of accommodation in Rwanda. Their asylum application will be processed in Rwanda and if they are successful, they will have the right to remain in Rwanda. Those whose applications fail will be deported from Rwanda to countries where they have a right to live. The plan is contingent on the passage of the Nationality and Borders Bill currently before the British Parliament. Britain is planning to send the first set of asylum seekers in May 2022, but this is highly unlikely as human rights groups will almost likely challenge this deal in court and, as a result, delay the implementation.

Rwanda’s Foreign Minister, Vincent Biruta, and Britain’s Home Secretary, Priti Patel, present the initiative as a remedy to what they deem a malfunctioning refugee and asylum system, “(T)he global asylum system is broken. Around the world, it is collapsing under the strain of real humanitarian crises, and because people traffickers exploit the current system for their own gain… This can’t go on. We need innovative solutions to put a stop to this deadly trade.” In a jointly written editorial for the UK’s Times newspaper, they portray the agreement as a humanitarian measure that would disrupt the business model of organized criminal gangs and deter migrants from putting their lives at risk.

Back in Rwanda, the pro-Kagame newspaper, The New Times of Rwanda, highlighted Rwanda’s experience in hosting refugees: “Rwanda is home to nearly 130,000 refugees from around the region.” The New Times claims that “… even those who arrived in Rwanda as refugees fleeing violence have since been integrated in the community and enjoy access to education, healthcare and financial services. This friendly policy toward refugees and migrants is in part linked to the country’s history.” It concludes by noting that “Kigali’s decision to extend a helping hand to migrants and asylum seekers in the UK who’re unable to secure residence there is very much in keeping with this longstanding policy on migrants and moral obligation to provide protection to anyone in need of safety. It is, therefore, shocking that this act of generosity has come under severe attack by some people, including sections of the media.”

Reaction in the UK has been mostly negative, ranging from the Anglican ChurchAmnesty International. A broad range of 150 organizations, including Liberty and the Refugee Council, sent an open letter to Prime Minister Boris Johnson and his Home Secretary (the UK immigration minister).  Even some MPs from Johnson’s ruling Conservative party condemned the deal. Dozens of Home Office staff have criticized the policy and are threatening to strike because of it.

Deals of this kind between Britain and Rwanda are not new. Britain tried to enter a similar agreement with Ghana and Kenya, but both rejected it, fearing a backlash from citizens. Rwanda has done similar deals before. Israel offshored several thousands of asylum-seekers, many of them Eritreans and Sudanese, to Rwanda and Uganda between 2014 and 2017. A public outcry forced Israel to abandon the scheme when evidence emerged that most of them ended up in the hands of people smugglers and were subjected to slavery when traveling back to Europe. Under a deal funded by the European Union, Rwanda has taken in evacuees from Libya. Denmark has a similar agreement with Rwanda, but it has not yet been implemented.

In 2016, Australia signed a similar deal with Nauru, a tiny island country northeast of Australia. In May 2016, Australia held 1,193 people on Nauru at the cost of $45,347 a month per person – about $1,460 a day or $534,000 a year. That same year, the EU signed a deal with Turkey under which Turkey agreed to take back “irregular migrants,” mainly from Syria, Afghanistan, Iraq, in exchange for reduced visa restrictions for Turkish citizens, €6 billion in aid to Turkey, update the EU’s customs union with Turkey, and re-energize stalled talks regarding Turkey’s accession to the European Union.

If these failed deals did not deter Britain, Rwanda’s human rights record should have. Even Kagame’s supporters concede that his human rights record is deplorable. At the 37th session of the Universal Periodic Review (a regular, formal review of the human rights records of all 193 UN Member States), Britain recommended that Rwanda “conduct transparent, credible and independent investigations into allegations of extrajudicial killings, enforced disappearances and torture, and bring perpetrators to justice.” A Rwandan refugee in London told The Guardian that, “Rwanda is a good country for image, but not for freedom of speech…Those who oppose Kagame end up in prison. The Rwandan government use[s] torture and violence against their opponents.”

The deal between Rwanda and Britain also contravenes international law. The principle of non-refoulement “… prohibits States from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violations.” The United Nations High Commissioner for Refugees (UNHCR) notes that Britain has a duty under international law to ensure that those seeking asylum are protected. UNHCR remains firmly opposed to arrangements that seek to transfer refugees and asylum seekers to third countries in the absence of sufficient safeguards and standards. Such arrangements simply shift asylum responsibilities, evade international obligations, and are contrary to the letter and spirit of the Refugee Convention . . . [P]eople fleeing war, conflict and persecution deserve compassion and empathy. They should not be traded like commodities and transferred abroad for processing.

Rwanda is the single most densely populated state in Africa, with more than 1,000 people per square mile. It already has its fair share of refugees from neighboring countries. (Biruta told the Financial Times last month: “This program [the deal with Britain] will be dedicated to asylum seekers who are already in the UK … we’d prefer not to receive people from neighboring countries, immediate neighbors like DRC, like Burundi, Uganda or Tanzania.”

Although it has done well economically compared to many other African countries, it remains a poor nation that needs to prioritize addressing its internal economic issues rather than allowing Britain to dump its refugees on them. It is unlikely that the economic benefits of this deal will help get the average Rwandan out of poverty. If Rwanda needs more refugees, it needs to look no further than its neighbors. Many of those who will end up in Rwanda will likely be genuine refugees who would have a right to remain in Britain and white supremacists in the UK do not want them there because they do not have the right skin color.

With this deal, Johnson and Patel are pandering to the racists simply to get more votes. If this deal was in place in 1972, when Idi Amin deported Ugandans of Asian descent to the UK, Patel’s family might likely have been shipped off to Rwanda. For his part, Kagame is pandering for influence and money from Western nations. It undermines his claim that he is an authentic and fearless pan-Africanist who advocates for the less fortunate. What happened to speaking the truth to Western powers? Let us hope a judge in the UK stops this terrible deal.

This post is from a partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.

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Road to 9/8: What Is at Stake?

This is the first of a series of articles that will 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.

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Road to 9/8: What Is at Stake?
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The past few months have witnessed political activity that is reaching fever pitch ahead of the general elections which are slated for August 9th. Public officers intending to contest in the forthcoming elections have resigned from office and political parties have either held party primaries or issued direct nominations. Already, parties have shared with the Independent Electoral and Boundaries Commission (IEBC) the final list of candidates they intend to field for the elections, and campaigns officially begin by the end of May.

In reality, the campaigns commenced years ago; immediately following the 2017 general election when the president and the leader of the opposition made amends and embarked on the constitutional reform process that was the Building Bridges Initiative (BBI), the drumbeat of electioneering became ubiquitous. Since then, the political class has largely been in a preparatory mood, with various outfits coming together in anticipation of forming the next government. Despite the attempted BBI constitutional reform being halted by successive courts including the Supreme Court, the effect it has had on political campaigning has persisted, with broad coalitions being formed in apparent anticipation of power-sharing arrangements akin to those proposed under the BBI Bill.

Based on recent developments, the forthcoming elections are shaping up to be highly unprecedented and unique. This is primarily due to the make-up of the competing factions. In an unsurprising but also unprecedented turn of events, the incumbent has thrown his weight behind the opposition leader against his own deputy. The last time we saw this in Africa was in Malawi when Salous Chilima (current and immediate former vice-president of Malawi), was in direct confrontation with President Peter Mutharika.

Evidence suggests that the president intends to remain in active politics beyond his term. For example, he recently revitalised his Jubilee Party, now a member of the Azimio-One Kenya Alliance Coalition that will be fielding Raila Odinga as its presidential candidate. Further, he was appointed Chairperson of the Council of the Azimio-OKA Coalition. More recently, the Cabinet Secretary for Finance omitted allocations for the president’s retirement in his budget statement apparently out of caution to avoid violating the legal restrictions on retirees enjoying perks while involved in active party politics. “Walking into the sunset” does not seem to be on the president’s agenda.

The president’s involvement complicates attempts to forecast the outcome of the elections. For one, it is presumed that the incumbency advantage will operate in favour of the opposition leader with the president’s backing. Already, Raila Odinga has stated he intends to “walk in Uhuru’s footsteps” to benefit from the president’s achievements and inherit his support base. Unfortunately, this puts him in the difficult position of being unable to wholly distance himself from the blemishes in the president’s record. It also undermines one of Odinga’s hallmarks: being an anti-establishment figure. In addition, one need only recall—especially now following the death of President Mwai Kibaki—that the power of President Daniel arap Moi’s incumbency was in fact a poisoned chalice for candidate Uhuru Kenyatta, who was crushed at the polls, wining just 31 per cent of the vote compared to Mwai Kibaki’s 62 per cent.  Some claim that Raila Odinga was the “king maker” since he backed President Kibaki. There may be some truth to this, but it is also true that Raila Odinga made a political and not an altruistic decision: he read the mood of the country and surmised that he had to distance himself from the establishment that President Moi and then candidate Uhuru Kenyatta represented. So, in a sense, Deputy President William Ruto is today’s Mwai Kibaki, President Kenyatta is today’s Moi and, irony of all ironies, Raila Odinga is today’s candidate Uhuru Kenyatta. Don’t ever be told that musical chairs is a children’s game.

The president’s involvement also raises questions around the use of state machinery to boost Odinga’s candidacy. A supplementary budget estimate tabled in parliament saw an increase in the president’s budgetary allocation for new vehicles from KSh10 million to KSh300 million. In a campaign season where the president has made clear his level of involvement, it is clear that, with the assistance of the National Treasury, the president has elided the lines between state and political candidate.

In a sense, Deputy President William Ruto is today’s Mwai Kibaki, President Kenyatta is today’s Moi and, irony of all ironies, Raila Odinga is today’s candidate Uhuru Kenyatta.

On the other hand, the deputy president is walking an intellectual tight-rope, taking credit for the achievements of the last 10 years and distancing himself from the blemishes. This is an altogether self-serving strategy but, were it not for the resonance of the “hustler” narrative, one would have thought that its transparent hypocrisy would be its own condemnation.

Bearing in mind Kenya’s unique history with election-related fraud, there exists a tangible risk of either side engaging in fraud, but this is more plausible where the state has a vested interest (such as the president’s). While speaking in the US, the deputy president stated that Kenya’s democracy is under threat and further alluded to a plot by several political actors to manipulate the outcome of the election. In his research, Walter Mebane has shown that fraud was prevalent in both the 2013 and 2017 general elections. The vice president was a beneficiary of both results. It is always hard to speak from both sides of your mouth; except if you are a politician, it seems. Without commenting on the accuracy of the deputy president’s assertions, it is clear that the IEBC, election observers, civil society and the judiciary will have to remain vigilant for any signs of fraud. Already, the deputy president’s party—the United Democratic Alliance—has faced allegations of rigging following its recently concluded primaries.

Further context

Perhaps the biggest contributor to the highly consequential nature of this election is the context in which it is taking place. Last year, the president and the leader of the opposition attempted to orchestrate a constitutional reform process that was finally halted by the Supreme Court. Seemingly motivated by a desire to remedy the winner-takes-all nature of elections to which they attribute the violence that always accompanies electoral processes, the president and the opposition leader proposed to expand the executive and to make a raft of other changes to the constitution through the BBI. In contortions only possible when the pursuit of power is the organising principle for decision making rather than any sense of principle, both the president and Odinga were supporters of the constitution but led the BBI movement which would have dismembered that constitution. Deputy President Ruto was a virulent critic of the constitution but has portrayed himself as its chief defender with his opposition to the BBI.  Like Saint Paul, both camps seem to have experienced a moment of conversion, but it is unclear who is on the road to Damascus. To a section of Kenyans, this entire process was an affront to the spirit of the constitution and constituted an elite power-sharing scheme. Some even viewed it as an attempt by the president to stage-manage his succession. As noted, whilst the BBI was overturned by the courts, the broader political aims sought by its promoters are currently being pursued.

The high stakes nature of the election is not lost on the various political factions in formation. Already, parallels are being drawn between the upcoming election and the 2002 general election, which is widely believed to be one of the more credible elections in Kenya’s history. This is in part due to the broad range of support Raila Odinga has been receiving from political actors who were involved in the 2002 NARC Grand Coalition. However, such a comparison immediately fails as John Githongo rightly explains: the upcoming elections seem to be about nothing. This is despite attempts by both sides to centre economic reform in campaign discourse. Without a clear impetus to go to the polls, voter apathy is high.

Whilst the BBI was overturned by the courts, the broader political aims sought by its promoters are currently being pursued.

Kenya is in the middle of a biting economic crisis. As of June 2021, the country’s public debt stood at KSh7.7 trillion—a 300 per cent increase in the country’s debt stock from 2013. As it stands, a significant portion of the country’s revenue is used to service debt. According to the Institute of Economic Affairs, the debt service to tax revenue ratio is currently 49 per cent—a 19 per cent increase from 2013/14. These trends seem to have brought the economic agendas of the various candidates into sharper focus. For example, the deputy president has proposed a “bottom up” economic model that pits “hustlers” against “dynasties”. On the other hand, his opponent has floated the idea of a social welfare programme involving the distribution of a monthly stipend to certain sectors of the population. These economic agendas seem not to have taken root, with significant political commentary focusing on tribal demographics and the candidates’ support bases in various regions. This is a concerning reality as the next administration will be saddled with the enormous burden of economic recovery.  And while the politicians politic, northern Kenya is the grip of a growing famine.

Aside from the state of the economy, these elections come against a backdrop of declining relations between the executive and the judiciary. In recent years, the country has witnessed the flouting of court orders, the interference with the independence of the judiciary, a worrying increase in the rate and normalisation of corruption, and the use of criminal law enforcement agencies for the settlement of commercial disputes.  While the courts have in many ways held the executive to account and stood firmly on the side of constitutional order, in the context of commercial and criminal law, the courts are riven with corruption and this has badly dented the judiciary’s credibility. Besides reducing investor confidence and jeopardising the state of the economy, these trends threaten people’s fundamental rights and freedoms. The further they are entrenched, the less likely we as a country are able to backtrack and rebuild.

Risks 

The upcoming elections are likely to be highly polarising. Election related violence stemming from political division is not new to Kenya; thus far, both sides’ party primaries have been rocked by violence. In what is an unfortunately ironic turn of events, the attempt by the president and Raila Odinga to remedy the “winner-take-all” nature of elections to which they ascribe election-related violence, seems to have had the opposite effect. The broad nature of the coalitions forming only serves to raise the stakes, increasing the likelihood of tensions running high. Take for example the political primaries: the positioning of the two coalitions within their strongholds is such that candidates needed to secure a ticket to maintain a chance at winning in the elections. As a result, some have turned to unscrupulous tactics to do so, and faced with unfavourable outcomes, have resorted to violence.

The broad nature of the coalitions forming only serves to raise the stakes, increasing the likelihood of tensions running high.

The increased digitisation of political campaigning continues to muddy the waters. This election cycle has seen a significant amount of mis- and disinformation. Some of the content tends towards spreading inciteful messages. However, social media platforms have largely remained complacent, jeopardising Kenyans’ access to civic information online, and undermining healthy democratic debate.

Between Kenya’s election history which is fraught with division and violence, and the current state of the economy and the rule of law, the coming elections are likely to be instrumental in shaping the future trajectory of the country and, to an extent, the region, especially at a time when there is increased regional instability. This is further compounded by the changing nature of elections in the digital age.

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