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Securing Kenya’s Electoral Integrity in the Digital Age

7 min read.

A collaborative approach by all stakeholders is crucial in order to curb the spread of content that undermines healthy democratic activity without subverting healthy online engagement.

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Securing Kenya’s Electoral Integrity in the Digital Age

Kenya is less than a year away from the 2022 general elections. The role of social media in the forthcoming polls has been the subject of dialogue in recent weeks, and for good reason. In electoral contexts, social media platforms have been lauded as equalisers, levelling the playing field for politicians. Providing instantaneous peer-to-peer communication while dispensing with traditional gatekeeping has made social media a potent tool for grassroots organising, one-to-many communication, and broad engagement. Its potency in Kenya is only amplified by the number of internet subscriptions, which stood at 43.7 million as at March 2021, approximately 83 per cent of the total population.

Social media in democracy: a boon?

The benefits afforded by social media are not only enjoyed by politicians. Social media has also provided citizens the space for civic engagement that is not readily available offline. One need not look far to identify the tangible effects of this democratisation. Kenyans recently took to Twitter under the hashtag #JusticeForKianjokomaBrothers to protest the tragic death of two brothers, Emmanuel and Benson Ndwiga, who were in police custody for an alleged curfew violation.

A section of Kenyans also held digital protests under the hashtag #LightsoutKE, going offline for half an hour from 9 p.m. every Sunday night in remembrance of victims of police brutality. Shortly after the online uproar, the Independent Policing Oversight Authority (IPOA), announced it was launching an investigation into the brothers’ deaths at the hands of the police. The investigations resulted in indictments of the police officers involved. While there isn’t enough evidence to draw causal relationship between these digital protests and the resulting action, the very fact of such online organising is enough to highlight the potency of social media in civic engagement and political participation. It would also not be far-fetched to assume that the public outcry online influenced IPOA’s decision to act promptly.

This is also not the first time that digital protests have supplemented offline complaint mechanisms. Earlier this year, students at the Kenya School of Law protested the Council of Legal Education’s (CLE) procedurally flawed decision to go ahead with bar exams despite giving short notice and facing numerous logistical challenges. One of these challenges was a government-imposed lockdown of certain areas to stem the spread of COVID-19 that made it difficult for students outside the affected areas to access the designated examination venues.

Using the hashtag #CLEwi (a clever play on words merging the abbreviation CLE, with sielewi, the Swahili word for “I do not understand”), students voiced their concerns while at the same time pursuing offline channels, in this case, an anonymous complaint to the Commission on Administrative Justice (CAJ). The CAJ eventually intervened, directing that the CLE postpone the exams. These examples seem to highlight the increasingly seamless integration of online and offline spaces. Unfortunately, this integration also extends to more nefarious elements of human interaction. In some cases, exacerbating the effect of these elements.

Double-edged sword: harmful content

The very characteristics that make social media such a potent tool for civic engagement and political participation also make it an effective vector of harmful content. Over the past few years, the nexus between social media and democracy has featured prominently in news reports, academic articles, and general discourse. Part of this trend is attributable to the perceived failings of social media in democracies around the world. Reports of harmful content such as misinformation, disinformation (both sometimes wrongly conflated and labelled as “fake news”), and hate speech appear to now be commonplace during elections.

Recent experiences in Brazil, Qatar, and the United States, provide some examples for these challenges. Such harmful content is not novel. However, recent events such as the 2016 US elections have widely popularised concepts such as “fake news”, with former US President Donald Trump going as far as to claim he invented the term (he did not). The tangible outcomes of such content through social media platforms have understandably resulted in calls for accountability, and for the regulation of these platforms. For example, in Myanmar, Facebook was reportedly used by military personnel to spread inciteful rhetoric against the Rohingya Muslim minority in the country, contributing to violence against the Rohingya.

These calls for accountability, and the broader concern with the unchecked power of the largest technology companies (Big Tech), has been referred to the “techlash”. In recent years, countries have been grappling with law reforms aimed at mitigating the spread of harmful content online. For example, Germany passed the Network Enforcement Act (popularly, NetzDG) which sought to impose large fines on social media platforms that fail to take down illegal content promptly. Facebook was fined under this law. At the same time, social media platforms have sought to respond to the techlash by implementing their own transparency and accountability mechanisms such as Facebook’s recently established Oversight Board.

The very characteristics that make social media such a potent tool for civic engagement and political participation also make it an effective vector of harmful content.

The urgency of figuring out a solution to this problem rapidly escalated in early 2020, when the World Health Organisation (WHO) declared COVID-19 a global pandemic. Perhaps there is nothing more emblematic of the promise and peril of social media than the range of behaviour witnessed in the early days of the pandemic, and even more recently with the development of vaccines. While public health officials were able to widely disseminate accurate and up-to-date information regarding the virus, individuals were equally able to spread false information. In some cases, this information was inciteful, fuelling anti-Asian sentiment and, in a few instances, resulting in violence. More recently, the spread of such information threatens global efforts to inoculate against COVID-19. This inundation with information, both false and true, was termed as an infodemic by the WHO.

The public health measures which have been adopted to mitigate the impact of COVID-19, such as social distancing and the wearing of masks, have served to enhance the role played by digital platforms in our lives. People are increasingly reliant on these platforms for, among other things, work and school. With such high levels of online activity, it is expected that the problem posed by exposure to harmful content will only worsen.

Kenyan perspective

The challenges posed by the spread of harmful content are not far removed from Kenya. It is reported that disinformation was spread through social media during the 2017 general elections. Cambridge Analytica, a political consulting firm accused of using improperly acquired personal data from Facebook to engage in political microtargeting, was reportedly active in Kenya during those elections, providing its services to one of the political parties. Since then, Kenya has made attempts at regulating online speech and the use of personal data, enacting the Computer Misuse and Cybercrimes Act in 2018, and the Data Protection Act in 2019. Despite these efforts, it is apparent that Kenya is yet to overcome the spread of harmful content online. For example, a recently authored report revealed a whole industry in Kenya dedicated to the spread of disinformation through social media.

Increasingly, government entities and some politicians have taken to social media to disavow content attributed to them on the basis that the content is fabricated. At the same time, a number of social media accounts have been engaging in what appears to be a coordinated campaign to disparage certain political actors, with the hashtags #RutosViolencePlan and #RailaHatesMtKenya most recently trending. These developments are quite concerning, and the National Cohesion and Integration Commission (NCIC) has previously warned against the trajectory of the country’s politics.

On 26 August 2021, the Cabinet Secretary for Interior & Coordination of National Government, Fred Matiang’i, cautioned Kenyans against misusing social media ahead of the general elections. The Cabinet Secretary highlighted the use of vulgar language, insults, and the spread of “fake news” as conduct which the government intends to clamp down on. Speaking at a youth forum, he reiterated that any excesses would be met with “equal force”. In a region where there have been increasing concerns about internet shutdowns by governments during elections, the Cabinet Secretary’s words may raise concern. To his credit, the Cabinet Secretary has publicly assured Kenyans that the government would not shut down social media over hate speech although, in the same breath, he affirmed that the government would deal “ruthlessly” with those purveying hate speech. Now, the spread of hate speech should never be tolerated, particularly in Kenya where inciteful rhetoric resulted in election-related violence in 2007/8.

Perhaps there is nothing more emblematic of the promise and peril of social media than the range of behaviour witnessed in the early days of the pandemic.

Regulating speech on social media to prevent the spread of harmful content necessarily means impacting the freedom of expression and right to assemble online, both of which are constitutional rights and crucial during elections. The approaches that governments and social media platforms use to achieve these important goals significantly impact the balance that is ultimately achieved. Put another way, in attempting to stop the spread of content that undermines healthy democratic activity, governments or private platforms may inadvertently subvert healthy online engagement. The entire endeavour of regulation therefore implicates a balance that must be carefully threaded. The fickle nature of this balance is further exacerbated by the COVID-19 pandemic.

Search for balance

Recognising the link between conduct on social media and electoral integrity, Kofi Annan, through his foundation—the Kofi Annan Foundation—established the Kofi Annan Commission on Elections and Democracy in the Digital Age in 2019. Consisting of leading experts drawn from different disciplines and jurisdictions, the Commission synthesised the concerns around social media in elections into five focus areas: polarisation, hate speech, disinformation, political advertising, and foreign interference. In its report, the Commission put forth practical recommendations for various stakeholders involved in the electoral ecosystem – governments, businesses, and civil society.

What is apparent from these recommendations is the importance of a collaborative approach to safeguarding electoral integrity in the digital age and achieving the earlier mentioned balance. The nature of the problem at hand is such that actions taken in isolation may not be very effective, especially where clear links exist, such as between regulation of personal data use and the activities of political advertisers. This is particularly important to consider as various stakeholders in Kenya commence preparations for the 2022 elections. For example, the National Cohesion and Integration Commission announced a plan to keep tabs on social media activity in the run-up to the elections while the Kenya Editors’ Guild commenced a series of elections preparedness trainings.

This is the first 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 five-part op-ed series is in partnership with Kofi Annan Foundation 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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UN Panel of Experts: Kenya Urged to Back Former CJ Willy Mutunga Candidacy

Willy Mutunga, the former Chief Justice and President of the Supreme Court of Kenya has been nominated by a number of international organisations to be one of the three experts. International human rights activists are calling on the government of Kenya to join with others in Global Africa to support the nomination of Willy Mutunga.

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UN Panel of Experts: Kenya Urged to Back Former CJ Willy Mutunga Candidacy

On 28 June 2021, the Human Rights Council of the United Nations called on the UN to set up a panel of experts to investigate systemic racism in policing against people of African descent. This call came one year after the police murder of George Floyd in the United States. The UN panel of three experts in law enforcement and human rights will investigate the root causes and effects of systemic racism in policing, including the legacies of slavery and colonialism, and make recommendations for change. Willy Mutunga, the former Chief Justice and President of the Supreme Court of Kenya has been nominated by a number of international organisations to be one of the three experts. International human rights activists are calling on the government of Kenya to join with others in Global Africa to support the nomination of Willy Mutunga.

The government of Kenya is strongly placed to support the nomination of its native son, an internationally respected jurist. Kenya is currently a member of the UN Security Council and an influential member of “A3 plus 1”, the partnership between the three African members of the Security Council and the Caribbean member of the UNSC, St Vincent and the Grenadines. Last week on 7 September, President Uhuru Kenyatta co-chaired the African Union, Caribbean Community summit. This meeting between the AU and the Caribbean states agreed to establish the Africa, Brazil, CARICOM, and Diaspora Commission. This Commission will mature into a politico/economic bloc embracing over 2 billion people of African descent. Kenya, with its experience of reparative justice from the era of the Land and Freedom Army, has joined with the Caribbean to advance the international campaign to end the dehumanization of Africans. African descendants around the world have lauded the 2021 Human Rights Council Report for calling on the international community to “dismantle structures and systems designed and shaped by enslavement, colonialism and successive racially discriminatory policies and systems.”

Background to the nomination of Hon Willy Mutunga

The murder of George Floyd on 25 May 2020 led to worldwide condemnation of police killings and systemic racism in the United States. The African Members of the UN Human Rights Council pushed hard to garner international support to investigate systemic racism in policing in the United States. In the wake of the global outcry, there were a number of high-level investigations into police killings of innocent Blacks. Three distinguished organizations, the National Conference of Black Lawyers, the International Association of Democratic Lawyers and the National Lawyers Guild convened a panel of commissioners from Africa, Asia, Europe, Latin America and the Caribbean to investigate police violence and structural racism in the United States. Virtual public hearings were held in February and March 2021, with testimonies from the families of the victims of some of the most notorious police killings in recent times.

In its report, a panel of leading human rights lawyers from 11 countries found the US in frequent violation of international laws, of committing crimes against humanity by allowing law enforcement officers to kill and torture African Americans with impunity and of “severe deprivation of physical liberty, torture, persecution and other inhumane acts”.

Among its principal findings, the Commission found the US guilty of violating its international human rights treaty obligations, both in terms of laws governing policing and in the practices of law enforcement officers, including traffic stops targeting Black people and race-based stop-and-frisk; tolerating an “alarming national pattern of disproportionate use of deadly force not only by firearms but also by Tasers” against Black people; and operating a “culture of impunity” in which police officers are rarely held accountable while their homicidal actions are dismissed as those of just “a few bad apples”.

After the Commission’s report was published, the convening organizations’ Steering Committee mobilized international public opinion to publicize its findings. Former CJ Willy Mutunga was one of the jurists in Africa who worked hard to publicize the report’s findings and recommendations.

It was in large part on the basis of these findings that the Human Rights Council issued its own report at the end of June. The United Nations decided to set up a panel of experts to investigate systemic racism in policing against people of African descent, adding international weight to demands in the United States for accountability for police killings of African Americans, and reparations for victims. The panel of three experts will have a three-year mandate to investigate the root causes and effects of systemic racism in policing. Many organizations have submitted names for suggested panel members. Legal experts from Global Africa and international jurists have recommended Willy Mutunga to be one of the three panellists. Thus far, the following organizations have endorsed the candidacy of Willy Mutunga:

  1. The African Bar Association, with membership in 37 African Countries.
  2. The United States Human Rights network (USHRN), a National network of U.S. organizations working to strengthen the Human Rights movement in the US.
  3. International Commission of Inquiry on Systemic Racist Police Violence Against People of African Decent in the United States.
  4. Society of Black Lawyers of the United Kingdom
  5. Bandung Conference, a Diaspora Human Rights network based in Nairobi, Kenya.

There are now calls for the government of Kenya to step forward to be more proactive to lobby the Human Rights Council and to write letters to its President, H.E. Nazhat Shameen Khan (hrcpresidency@un.org), endorsing the candidature of Dr Mutunga. His CV is included for those who want to write to the Minister of Foreign Affairs for Kenya to lead the endorsement of Willy Mutunga.

The Steering Committee of the International Commission of Inquiry on Systemic Racist Police Violence in the United States is coordinating the campaign for Dr Willy Mutunga to be appointed by the UNHRC as a member of the International Expert Mechanism to monitor compliance of the UNHRC findings and recommendations.

The Government of Kenya and Human Rights groups are kindly asked to send copies of their endorsements to the Coordinator, International Commission of Inquiry on Systemic Racist Police Violence in the United States, lennoxhinds@aol.com.

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Cutting the Hand That Feeds: Is the UN Silencing the Voices of Farmers and Indigenous Communities?

More than 500 indigenous and farmer organisations across the continents have raised their voices to expose the UN’s Food Systems Summit as only advocating one food system—so they’re being silenced.

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Cutting the Hand That Feeds: Is the UN Silencing the Voices of Farmers and Indigenous Communities?

The United Nations Food Systems Summit (UNFSS) invokes the UN Sustainable Development Goals to demonstrate its purpose—namely, goals 2.1 and 2.2 (to end hunger and malnutrition). At the same time, however, the summit is obstructing another of those goals: goal 2.3 (to increase resources for smallholder farmers).

Because of this contradiction, the summit, planned since 2019 to be held at the UN Headquarters in New York, will now be exclusively virtual (September 23), a measure intended to maximize control and minimize dissent. During the last year, more than 500 indigenous and farmer organizations across the continents have raised their voices to expose the summit as advocating only one food system, the one that is polluting the soil, water, and air, and killing vital pollinators.

In contrast, the food system that feeds 75 to 80 percent of the human population—smallholder farmers practicing biodiverse cropping (in line with the principles of agro ecology)—was only added to the agenda after months of criticism. Those in opposition to the summit say it is advancing industrial agriculture, which is the core problem, not solution, for addressing climate change, malnutrition, and hunger.

A second criticism is that corporations are trying to replace the UN system of one country-one vote with “stakeholders,” a euphemism that may sound inclusive but really only invites those “who think like us” to the table.  Smallholder farmers, who produce the majority of our food, are not invited.

This food summit is about the global business of agriculture, not the livelihoods of those who produce nutritious, biodiverse foods. Governments’ attempts to regulate global food corporations (e.g., labeling unhealthy foods, taxing sugar products) meet strong opposition from these industries. Yet the corporations profited massively from the 2008 food crisis and strengthened their global “food value chain,” contributing to the consequences that over 23 percent of Africans (282 million people) still go to bed hungry every night.

This focus is in stark contrast to the stated aims of the summit. As the UN Special Rapporteur on the Right to Food explained in August 2021:

Hunger, malnutrition, and famine are caused by political failures and shortcomings in governance, rather than by food scarcity ….. How will the [Summit] outcomes identify the root cause of the crisis and hold corporations and other actors accountable for human rights violations?

A third criticism of the UN Food Systems Summit is that it heralds technological advances as the primary answer to overcoming continuing hunger in an era of climate change. Most of us applaud multiple revolutions in genetics while we queue for vaccines, but genetic manipulation of seeds threatens the future of food, because ownership of the technology controls ownership of the seed. Industrial agriculture expands corporate profits from commodification of seed (beginning early 20th century), from the financialization of seed (speculative trading, late 20th century) and continuing today, through the digitalization of seed.

To the industry, a seed is merely a genome, with its genes representing digital points. The genes can be cut and pasted (by enzymes, e.g., CRISPRcas9), much like we edit text.  A seed is no longer a living organism representing thousands 1000s of years of careful selection by expert farmers. For example, biologists today say they no longer need the germplasm of Oaxacan corn from Mexico to access its drought-resistant characteristics.

Promoters of these technologies rarely admit that they are very imperfect, with uncontrolled “off-target mutations.”  Further, a seed variety needs its biome to flourish. It is farmers who understand the intricate interactions, who experiment with changing micro-climates (often in one field) to cultivate adaptive seed varieties.

No farmer denies the importance of scientific advances. But industrial agriculture giants are denying the value of farmers and their knowledge, saying they no longer need them: digitalized seed can be planted, watered, fertilized, and harvested by machines, run via satellites (this is called “precision agriculture”). Taste is irrelevant, because it is chemically added as crops are processed into food products.

Success in derailing the “corporate capture” of UN processes (e.g., UN Committee on World Food Security) to address increasing hunger arises from global, organized resistance by smallholder farmers, pastoralists, and fisher folk. After appeals to transform the agenda, many of these farmers and advocates decided to boycott the summit. This “outside resistance” included African voices, who stated:

The current UNFSS process gives little space to traditional ecological knowledge, the celebration of traditional diets and cuisine . . . ….Indigenous and local community Africans have experience and knowledge relevant to the current and future food system. Any process or outcome that does not recognize this is an affront to millions of African food producers and consumers.

The “inside resistance” worked to advance farmers’ voices within the official pre-summit dialogues, holding a series of webinars among the farmers in Southern Africa, and then globally (July 28).  This trajectory was possible because of allied support within the UN Food and Agriculture Organization.  As stated by one of the convenors of these official dialogues, Andrew Mushita,  “African smallholder farmers are not beneficiaries of the corporate [agriculture] industry but rather co-generators of innovations and technologies adaptive to ecological agriculture, farmers’ needs—within the context of sustainable agriculture.”

To follow the end result of the summit, go here.

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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We Are So Much Better Than the Elites Make Us Out to Be

To resist the efforts of Cambridge Analytica and similar social saboteurs in the media and the academy, we must believe in our capacity to vote on a diversity of issues.

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We Are So Much Better Than the Elites Make Us Out to Be

Theatre scholar Gĩchingiri Ndĩgĩrĩgĩ writes that in 1991, at the height of the clamour for multi-partyism, the government denied a license for the staging of Drumbeats of Kirinyaga, a play by Oby Obyerodhiambo.

The reason given was that the play portrayed an ethnically diverse and politically cohesive Kenya, which contradicted the president’s argument at the time that Kenya was too ethnically divided for multi-partyism.

While President Moi was claiming to care for Kenyans who are too tribal, his government was ironically also suppressing any public display of Kenyans transcending their tribal identities. The government needed to encourage tribalism among Kenyans in order to give itself something to cure.

​We were shocked by the confirmation by a young man, Christopher Wylie, that Cambridge Analytica played a major role in polarizing Kenyans during the 2017 elections. Some were insulted that foreigners would deliberately diffuse messages that would polarize us ethnically. Others, however, argued that Kenyans are tribalist, with or without Cambridge Analytica. I think the reality is more complicated than that.

Cambridge Analytica’s role in polarising Kenyans is part of the larger efforts of global and local elites to keep convincing Kenyans that we vote on nothing else but tribe. The elites manipulate culture in order to coerce us to believe that tribalism comes naturally to us Africans. And yet, the reality is something closer to what the government censor did in 1991.

The role of politicians in keeping ethnic temperatures high has been repeatedly stated. But there are two other pillars that keep Kenyans convinced that they are naturally and inevitably tribalist: the use of culture and research by envoys, journalists, researchers, and now, by Cambridge Analytica.

For instance, while Kenyans called for electoral justice, the US ambassador kept framing Kenya’s problem as “long-standing issues” that should be addressed through reconciliation between NASA and Jubilee. The ambassador was savvy enough to know that using the word “tribal” would evoke memories of colonial anthropology. But even “long-standing” is just as insidious, because it appeals to the colonial narrative of Africans as stuck in the past.

Similarly, articles in the local and international media often used tribal data to predict a Jubilee win. The research they quoted almost always used tribe as the major factor in elections, yet there are other factors that influence the way Kenyans vote, such as income, gender, urban migration, economic inequality or voter frustration with politicians.

If a basic rule of good research is that it cannot always use the same variable, it means that the researchers are perpetuating tribalism through faulty research. Yet the variables exist. For instance, our media rarely mention economic inequality as a factor influencing election outcomes, and yet one article in Jacobin found a strong correlation between economic inequality and votes for Raila Odinga.

In the New York Review of Books, Helen Epstein queried the sampling methods of predictions of election results, pointing out that some researchers worked backwards from a known result to a sample, rather than the other way round. Some researchers went to Luo regions and predictably projected a high Raila vote, and to Kikuyu populations and predicted a high Uhuru vote, but did not go, for example, to Kakamega, Bungoma, Busia, Kisii Nyanza, Garissa and other regions where Jubilee claimed to have won a majority.

Other times, electoral predictions remain unquestioned because claims are made from people with perceived academic clout. For instance, Mutahi Ngunyi gave prestige to the concept of “tyranny of numbers”. Most media did not question the validity of his concept, even when a poorly circulated video done by AfriCOG showed that the premises of Ngunyi’s argument were rather weak.

If Kenyans were naturally tribalistic, the politicians, intellectuals and envoys would not need to keep reminding us of it. And there is a political interest in insisting on our tribalism: it prevents us from asking questions about social justice or worse, from organizing ourselves along other lines such us age, profession, economic status and gender.

If a basic rule of good research is that it cannot always use the same variable, it means that the researchers are perpetuating tribalism through faulty research.

The nightmare of the foreign and local elite is of Kenyans organizing as the poor, youth, women or workers, because then, the numbers would surely have an impact. And politicians would not get automatic godfather status like they do as tribes. They would have to pass through institutions like associations and unions, where success is not guaranteed. For instance, politicians’ efforts to divide the doctors along tribal lines backfired and instead produced a hash tag #IAmaTribelessDoctor.

It does not matter how many Kenyans Cambridge Analytica influenced. Even one Kenyan is one Kenyan too many. What matters is that it appealed to Kenyans’ worst fears, essentially hoping to whip up hysteria, just so that the president could win the vote. Our dignity was cheaper than Muigai’s desire to win. Six million dollars cheaper.

But the worst part of the tribal propaganda is that it is based on convincing Kenyans to believe so little of themselves. To resist the efforts of Cambridge Analytica and similar social saboteurs in the media and the academy, we must believe in our capacity to vote on a diversity of issues. For as Daisy Amdany put it, “We are so much better than what the elites make us out to be.  It’s time to believe it, receive it, be it and live it!”

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