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Conflict in Marsabit: Voter and Politician Locked in a Danse Macabre

4 min read.

The nature of the conflict in Marsabit has changed. Deaths are tallied, and ledgers of the unmourned dead are meticulously kept.

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Conflict in Marsabit: Voter and Politician Locked in a Danse Macabre

Counting the dead

Ninety-three deaths in the past year, the count has dominated national TV coverage of conflict in Marsabit, contributing to the trend of turning the effect of the conflict and the loss into a body-counting exercise.

A year ago, Saku Member of Parliament (MP) Ali Raso Dido spoke of the number of people killed in his constituency. On his list there were only the Borana dead; he did not include the dead from other communities. To him, as an MP, only Borana lives mattered and were worthy of raising on the floor of parliament.

In a lengthy response, his counterpart, North Horr MP Francis Chachu gave the number of dead in his constituency. He listed only the Gabra dead.

In the last cycle of conflict in Marsabit County, 75 houses were burnt down, and about 850 families were displaced. Governor Mohamud Ali called a press conference at which the list of the dead was the central theme of his statement.

Since the state has no official data on number of people who have died as a result of conflict in Marsabit, all these accounts are true, but they are also subjective and incomplete. Just why the counting is done, where to begin counting, who is to be counted and who does the counting are the concerns of these times.

In between the statistics informing politicians’ petitions to parliament, or forming the subject of a governor’s hasty press statement or the prop of a news story, there is a whole social milieu within which the conflict exists and how it is processed at the political and economic levels of grief.

A macabre dance between voters and politicians

Proximity to countries in conflict—Ethiopia, Somalia, and South Sudan—and the easy availability of Small Arms and Light Weapons have been the central explanation for the conflict in Marsabit County. While valid and, in some instances, correct, this explanation misses the fact of the banality of conflict in the county—a more insidious new lexicon that normalizes killing beyond the traditional boundaries of ethnic conflict is developing.

In the last cycle of conflict in Marsabit County, 75 houses were burnt down, and about 850 families were displaced.

This change in the ethnic conflict dynamic is a function of a perverse, mutually reinforcing loop involving politicians and voters, each egging on the other to visit more death and destruction on the opposite community. The hypercompetitive nature of local elections post-devolution significantly exacerbates this loop.

Thus, taking the “war” to the other community becomes a politician’s campaign pledge rather than the promise of building hospitals and schools or bringing about the desperately needed development. The more vociferous a politician becomes, the more likely he is to be elected.

This perverse incentive makes politicians more incendiary, making both the threat of violence and the violence itself politically rewarding.

Ancestral hatred theory

While it is often cast as anchored in ancestral hatred, there is something new about conflict in Marsabit. And because it is mutating even as we all watch, we sometimes miss it. What makes it unique is its banalisation.

Three aspects make recent conflicts in Marsabit distinct from the old ones.

One, the slow-burning, episodic nature of the conflict and the attendant “peace” meetings have come to be accepted as an immutable fact of life. But the peace-industrial complex has done little to end the conflict; instead, the conflict has mutated into something new, complete with a new lexicon and signals far more incendiary than the old conflict. This rinse-and-repeat cycle has spawned a coterie of peace entrepreneurs activated at a moment’s notice whenever violence breaks out.

This perverse incentive makes politicians more incendiary, making both the threat of violence and the violence itself politically rewarding.

Two, with increased competition over land and resources under devolution, this “new” conflict is increasingly framed in apocalyptic, existential language. As a result, voters prefer politicians who cast themselves as the “defenders” of the community from outsiders’ keen on taking their land and resources. Thus, voters lean towards politicians with a “warlord” mentality rather than those with a good development record.

Three, in this “new” conflict controlling the narrative is central, making the national media and the local-language radio stations the battleground. Where the national media frames the region as a godforsaken Badlands, local-language radio stations offer politicians a safe space from where to speak directly to their people unfiltered. WhatsApp and the ever-mushrooming Facebook groups act as a functional auxiliary for sharing media content. This interface has made the Marsabit conflict far deadlier on and offline.

Conflict as theatre 

Every death in Marsabit is increasingly seen through the prism of cold arithmetic—losing and winning. This strips death of its meaning. Every death is accounted for on a ledger; it is a debt to be repaid with the death of another. Death is performance theatre, acted rather than mourned.

This theatre extends to the burial, measured by the length of the cavalcade of vehicles that accompany the body to the grave, and the promises made by politicians at his funeral or in their interviews in the local and national media. During a recent funeral, the number of vehicles contributed to the drama as cars stretched a kilometre from the centre of town to the cemetery.

Every death is accounted for on a ledger; it is a debt to be repaid with the death of another.

There was such silence in the picture that the silence was in our minds, but we know that the slow pace of the vehicles inching towards the cemetery had no connection to the past murders. In the prevailing mind-set, this image will replace that of the mad man whose throat had been slit at 8 p.m. near the market and who had tried to walk from the back of the police van into the hospital and failed—rising and falling, rising and falling.

Later, as the region’s leaders foam at the mouth on TV, everyone goes home with smaller versions of the same talk. Emotions are gauged through the metrics of tribe, place of murder, murder weapon, the known backstories of the casualties; many went unmoored as collaterals of the drama that people made of the conflict.

Part of the post-death package is “what have our leaders said?” This reaction is baked into the system of conflict, whether the said leaders are maintaining the honour of the tribe. Whether they have promised to even the score or repay the death debts. Their words are shared on and off line as a whispered social contract.

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Dalle Abraham (@Dalle22) is a writer based in Marsabit, Kenya. Abdullahi Boru Halakhe (@Qulshtm) is a security analyst from the Horn of Africa.

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The Pandora Papers Explained

The Pandora Papers are nearly 12 million files — totalling close to 2.94 terabytes — leaked from 14 companies that provide corporate services in offshore jurisdictions.

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The Pandora Papers Explained
Photo: James O'Brien, OCCRP

What are the Pandora Papers?

The Pandora Papers are nearly 12 million files — totalling close to 2.94 terabytes — leaked from 14 companies that provide corporate services in offshore jurisdictions. The documents offer the most comprehensive look to date at how such service providers help the rich and famous — including celebrities, the ultra-wealthy, politicians, and criminals — to hide their money in financial secrecy jurisdictions.

The International Consortium of Investigative Journalists (ICIJ) received the leaked files and coordinated a worldwide investigation into their contents. The project involves more than 600 journalists from 117 countries.

I’ve heard of the Panama Papers and Paradise Papers. How do the Pandora Papers compare?

The Panama Papers, which exposed hundreds of thousands of offshore companies set up by Panamanian law firm Mossack Fonseca, caused uproar when they were published in 2016. Some $1.36 billion has been recouped due to the revelations since then, and charges have been brought against high-profile figures, including the former chief of staff to Malta’s prime minister. In 2017 the Paradise Papers, another major leak from three offshore providers, caused a fresh wave of scandal.

What sets the Pandora Papers apart is the leak’s scale and scope. The data from 14 service providers gives an unprecedented insight into the offshore industry, showing once and for all that cases of tax evasion, money laundering, and other malfeasance exposed by previous investigations are not down to a few rogue operators, but are an essential part of how this secretive industry works.

“It’s not just bad apples,” said Rachel Etter-Phoya, a senior researcher at the Tax Justice Network.

“There are a lot of people that do this, a lot of players across the world.”

What is “offshore,” and why should I care?

The offshore system is a key part of our globalized economy. For decades, an army of lawyers, accountants, and advisers has helped corporations and the world’s rich stash their money in low-tax jurisdictions with opaque disclosure laws. Estimates put the amount of money in offshores in the trillions of dollars. But this system is also exploited by organized crime groups, and is also increasingly being used by corrupt leaders to stash their own ill-gotten gains abroad. Tax avoidance alone is estimated to cost the world’s poorest countries $200 billion a year — far in excess of what they receive in development assistance.

Increasingly, the offshore industry is extending beyond palm-fringed Caribbean islands into major commercial hubs such as London, New York, and Dubai. The British capital in particular has seen a huge influx of cash into its luxury real estate sector from other offshore hubs, while U.K.-registered shell companies are frequently used in corruption schemes and by criminal enterprises. One growing offshore destination detailed in the leak is about as far as you can get from a tropical island: the landlocked U.S. state of South Dakota.

The offshore industry allows its clients to build astoundingly complex webs of ownership that are often nearly impossible to unravel. This doesn’t just starve developing countries of much-needed revenue, but also hurts developed countries by pushing up the price of real estate, enabling political corruption, and even spurring the growth of illiberal political movements.

“The risks posed by anonymous companies are too high to justify that they continue to operate in such secretive environments,” said Maira Martini, an expert in illicit financial flows at Transparency International.

What is a corporate service provider? Who are the service providers in the data?

Corporate service providers are professionals such as lawyers, accountants, or independent trust companies that help their clients create and administer companies and other legal entities. They usually offer a wide range of services, from incorporating shell companies to acting as directors and shareholders. They are in effect the gatekeepers of the global financial system, often helping build complex corporate networks that make it more difficult for authorities to track flows of money.

The Pandora Papers contain documents from 14 offshore providers based around the world. Most of the files (3.76 million) come from Trident Trust Group, one of the world’s largest such firms, which has operated since the late 1970s in offshore havens including the British Virgin Islands, the Seychelles, and Panama, as well as the U.S and the U.K. It’s one of the world’s largest offshore service providers.

The second-largest tranche (2.19 million files) is from the Panamanian law firm Alemán, Cordero, Galindo & Lee, also known as Alcogal, which created and maintained anonymous entities for nearly half of the politicians whose names appear in the Pandora Papers, according to an ICIJ analysis. Its clients include the king of Jordan, the president of Ecuador, and the ruling family of Kenya.

The full list of service providers is here:

Who appears in the Pandora Papers data?

The data contains a who’s who of business people, politicians, and others close to wealth and power, including 35 current and former national leaders and 130 people on the Forbes list of billionaires.

Merely appearing in the data is not a sign of wrongdoing. OCCRP’s stories focus on cases in which government officials and those close to them have been involved in dealings that may have been illegal, unethical, or against the public interest.

Pandora Papers Politicians
What are offshore companies used for? Are they always bad?

Offshores entities have plenty of uses that are perfectly legal — even if their benefits for the broader public are debatable. Corporations use them to minimize tax, avoid cumbersome regulations, or protect themselves from corrupt legal systems where their assets may be under threat. Rich people may use them to protect inheritances, or to ensure their interests in the event of an expensive divorce. Some also argue that offshores help protect the safety of people in countries where kidnapping for ransom is rife.

However, offshores also facilitate crime and corruption, including financing for extremist groups and disinformation campaigns. While in the past a dirty official may have struggled to hide their ill-gotten funds, sophisticated offshore structures allow illicit money to be moved abroad and hidden with ease. Over the years, OCCRP has exposed multiple massive operations for laundering dirty cash — known as “laundromats” — connected to corrupt elites in countries such as Russia and Azerbaijan. Such schemes usually use layers of offshores and proxy owners in order to obscure their operations and the source of their money.

What is a “politically exposed person?”

A “politically exposed person” (PEP) is someone who has been entrusted with a prominent public function, such as a member of parliament, a minister, an ambassador, or a judge, or an immediate family member of such a person.

Because of their positions, which put them close to public funds, PEPs are considered at higher risk of money laundering. Financial institutions and service providers like the ones in the Pandora Papers leak typically claim that they subject PEPs to greater scrutiny before acting on their behalf. But the leak shows that, in practice, service providers often have no qualms about helping such clients hide their wealth using sophisticated offshore structures.

What can we do about all this? Are there any prospects for reforming the offshore system?

Offshore jurisdictions allow people to hide who really controls companies and money. Faced with a growing tide of criticism, dozens of countries have brought in registries listing the so-called beneficial owners of companies and other entities. However, there remain major gaps in the system, as many jurisdictions only require major shareholders or certain types of companies to provide such information.

“It should not be possible to incorporate a company or create a trust without providing information about the real natural persons in control and benefitting from it,” said Martini of TI.

Even when information on beneficial owners is required, many countries also don’t adequately check the veracity of this information, or don’t make ownership data publicly available. “If you’re based in Zambia or… Papua New Guinea, and you need to act, you still need to have access to information,” said Etter-Phoya of the Tax Justice Network. “Unless it’s public, or unless you’re able to access it through the automatic exchange of information, [then it’s] not useful.”

These include the U.S., which as the controller of the dollar has a unique power to impose its will on the global banking system. The country has also been loath to sign up to global transparency standards and still remains one of the world’s “largest providers of financial secrecy,” Etter-Phoya said.

Susan Hawley, from the U.K.-based nonprofit Spotlight on Corruption, said legal service providers also needed to be better regulated to stop them acting as “professional enablers” for criminals through franchises and subsidiaries.

“Big law firms set up subsidiaries in offshore jurisdictions and, like the big accountancy firms, are protected by franchising liability mechanisms: They can deny all responsibility in their headquarters,” said Hawley. “There needs to be robust regulatory action to police these boundaries, this activity carried out on the edges of what is legal.”

Martini, from Transparency International, said corporate service providers should also be better regulated, including being subject to anti-money laundering obligations and stricter due diligence requirements.

“In key financial centres, like the U.S., Switzerland and Australia, many of these professionals have no anti-money laundering obligations whatsoever. In countries where such obligations are in place, what we have seen is very weak implementation and enforcement,” she said.

This article was first published by our partner OCCRP.

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Pandora Papers: Worldwide Outrage Calls for Probes After Documents Revealed

The Pandora Papers, based on almost 12 million documents leaked from 14 companies that provide corporate services in offshore jurisdictions, expose some of the most prominent current or former leaders and politicians as beneficiaries of offshore accounts.

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Pandora Papers: Worldwide Outrage Calls for Probes After Documents Revealed
Photo: James O'Brien, OCCRP

Hours after they were published on Sunday, the Pandora Papers revelations about how part of the globe’s elite has used offshore companies to evade taxes and park undeclared wealth in real estate and other assets have prompted outrage and calls for investigations.

“It’s beyond disgusting!” a Facebook user commented after having read the leak’s findings.

“Problem is the same people that make the laws to stop this type of money laundering are the same people that are doing it,” another complained.

Some said the findings were “disturbing” and “depressing,” but “unsurprising.”

The Pandora Papers, based on almost 12 million documents leaked from 14 companies that provide corporate services in offshore jurisdictions, expose some of the most prominent current or former leaders and politicians as beneficiaries of offshore accounts.

These include family members of Azerbaijan’s Ilham Aliyev, Jordan’s King Abdullah II, former U.K. Prime Minister Tony Blair, Czech Republic Prime Minister Andrej Babiš, Kenyan President Uhuru Kenyatta, and associates of both Pakistani Prime Minister Imran Khan and Russian President Vladimir Putin.

Jordan’s King Abdullah II, who was found by ICIJ to be the owner of 14 properties worth over US$100 million through a network of offshore companies registered in the British Virgin Islands and Panama — two notorious tax havens — saw the revelations as an attack against his country.

“There is a campaign against Jordan. It is not the first, and we are stronger than these campaigns,” he was quoted by local media on Monday as saying.

In its wake, Jordan’s Royal Hashemite Court said that the investigation’s findings contain “inaccuracies,” and have “distorted and exaggerated the facts,” adding that the Court “maintains its right to undertake the necessary legal procedures.”

The uncovered properties are located in some of the world’s most expensive areas; from Central London and Ascot in the U.K., to Georgetown and Malibu in the U.S., but the Royal Court said that those residences are “no secret,” and that it is “not unusual nor improper” for a head of state to have such properties, which are used by the King and his family during official visits, private visits, or to host officials and foreign dignitaries.

The Court also maintained that the properties were “personally funded” by the King, not the state budget or treasury, and that any connections made between the two are “baseless and deliberate attempts to distort facts.”

One of the most shocking stories in the Pandora Papers collection is OCCRP’s investigation about Azerbaijan’s President Ilham Aliyev’s son, Heydar, who owned four buildings in Mayfair – one of London’s most expensive areas – when he was 11.

All in all, nearly $700 million worth of properties in London are owned by Aliyev’s family and associates, according to the Pandora Papers.

“London, U.K. is historic Azerbaiyán… jajajaja,” a Facebook user joked.

In Baku, award-winning investigative journalist Khadija Ismailova summed up the essence of these revelations in a very sober Facebook post.

She commented on a video of a father carrying his daughter through a fast-water creek barefoot, to go to school. The young girl appeared 10 to 11 years old – the age at which Heydar would have had properties worth millions in Dubai and London, she noted.

“1,000 out of the 33 million spent on properties in London would be enough to build a bridge over this river,” Ismayilova wrote.

Oxfam International, a nonprofit group focused on tackling global poverty, took a similar stance.

“This is where our missing hospitals are. This is where the pay-packets sit of all the extra teachers and firefighters and public servants we need,” Oxfam International’s Tax Policy Lead, Susana Ruiz, said. “Whenever a politician or business leader claims there is ‘no money’ to pay for climate damage and innovation, for more and better jobs, for a fair post-COVID recovery, for more overseas aid, they know where to look.”

Elsewhere, authorities in Pakistan, the Czech Republic, Mexico, Spain, Sri Lanka, Australia and Panama have announced investigations against fellow countrymen mentioned in the project.

Pakistan’s Prime Minister Imran Khan “welcomed” the findings, and vowed to investigate and take action against those found to have done wrong.

“I call on the international community to treat this grave injustice as similar to the climate change crisis,” he tweeted. “If unchecked, inequalities between rich & poor states will increase as poverty rises in the latter. This in turn will lead to a flood of economic migration from the poor to the rich states, causing further economic & social instability across the globe.”

More than 700 Pakistanis, including cabinet members, ministers, financiers, retired generals, businessmen and media owners have been mentioned in the Pandora project.

The country’s Information Minister, Fawad Chaudhary, told OCCRP on Monday that the prime minister has set up a team “under his Inspection Commission to investigate the Pandora Leaks.”

Others couldn’t see any wrong in the findings.

Putin’s spokesman Dmitry Peskov said that the Russian government didn’t see “any hidden wealth in the Pandora Papers, no reason for official investigations.”

The International Consortium of Investigative Journalists said that its project identified “nearly 3,700 companies with more than 4,400 beneficiaries who were Russian nationals – the most among all nationalities in the data. The figure includes 46 Russian oligarchs.”

Cypriot President Nicos Anastasiades also denied wrongdoing in a statement issued after reporters revealed that a law firm he once founded and which is still named after him, had helped a Russian senator hide his assets.

While the Czech Republic said it will investigate those named in the Pandora project, Prime Minister Andrej Babiš, who allegedly transferred $22 million through offshore companies and bought a chateau on the French Riviera, said he expected an attack ahead of elections.

Babiš told CNN Prime News he bought the property with “taxed money.”

As the findings of the Pandora Papers reverberate across the globe, prompting calls for investigations and resignations, some reporters who took part in the project are beginning to feel the heat too.

Noël Konan, a journalist from the Ivory Coast and part of the Pandora Papers reporting team, is already facing pressure to drop a story revolving around his country’s politicians.

“I note, with great regret, that following the announcement of the imminent publication of my investigation, I am under pressure at the moment and some online sites are making publications in order to discredit my investigation,” he tweeted Monday.

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Securing Kenya’s Electoral Integrity: Regulating Personal Data Use

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

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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