The long-awaited rains are finally here and yesterday’s dry, cracked black cotton soil that we here call kagenyo has turned into a gluey, slippery mess that sticks three inches thick to the soles of your shoes. I am struggling to keep my sneakers on as I make my way up the path to Wanjĩra’s* homestead.

Wanjĩra greets me at her gate and stands there, not showing any signs of inviting me in. Her handshake is firm and her manner brisk, a big woman in a body fed mainly on stodge. Clearly, Wanjĩra is waiting for me to get to the point of my visit so, in the manner of country people, and to break the ice, I begin by observing that, thank God, the rains are finally here. Wanjĩra turns her head, points her chin at the field behind her wooden cottage and says that she’s wondering whether she should bother to start over again. She had planted the early-maturing Pioneer variety of maize seed in anticipation of the long rains but nothing had come of that and the shoots had died in the ground, beaten down by the unyielding sun. Will the rains be sufficient this time round? There follows an awkward silence; where does one begin when one is intruding on the already difficult lives of those displaced by politically instigated violence?

I had learnt only recently that there were internally displaced people living not five kilometres down the road from me, further inland, and I determined to find out their circumstances, concerned that there could be desperate cases—like those I had found at Shalom—living within my community. That is how I ended up at Wanjĩra’s gate, led there by her orphaned niece, a twenty-something young woman with an infant strapped to her back.

Wanjĩra was born and raised in Londiani, Kericho County. Like many Kikuyus of his generation, Mũreithi, Wanjĩra’s father, had been uprooted from his home in Mũrang’a and moved to a colonial village under the colonial government’s villagisation programme that, by the end of 1955, had “relocated some one million Kikuyu into 804 fortified, policed and concentrated villages from their scattered homesteads that were in turn demolished”. From here, having been fingerprinted and with a mbugi around his neck, “no longer a shepherd but one of the flock”,  Mũreithi was removed from the kiugũ, the cattle pen, as Wanjĩra sardonically described the village, shoved onto the back of a lorry and transported to Londiani on the other side of the country, never again to return to Mũrang’a. Mũreithi’s final destination was a settler’s farm where he earned a monthly wage of two shillings and fifty cents as a farm labourer. He married and brought up Wanjĩra and her siblings on that pittance but was never able to find the wherewithal to buy land of his own when independence came. A son had done well enough to purchase a quarter-acre in Karamton, Nyandarua County, and this is where Mũreithi was buried when he died.

Born in 1958 and now with a family of her own, Wanjĩra worked in the Londiani Forest planting trees in exchange for permission to grow crops in the clearings, while also slowly building up a herd of 38 cattle that she would graze in the forest. But the violence that broke out following the 2007 general election would prove to be the final straw for Wanjĩra and her family; she and her husband gathered up their eight children and fled Londiani. When the couple married, Wanjĩra’s father-in-law had made room on his one-acre piece of land for the couple to establish a home and raise a family. But beginning in early 1992, the family’s hold on life became increasingly tenuous as the clashes that broke out in late 1991 in Tinderet in Nandi District spread like wild fire to Londiani and other parts of the Rift Valley. The family hunkered down and survived the onslaught but found their lives once again threatened by the politically motivated ethnic violence that followed in the wake of the December 1997 elections. They survived that spate of violence too and carried on with their lives.

But a decade later, starting in April of 2007, Wanjĩra says that they began receiving anonymous written demands that they move away or face certain death. Living under constant threat of violence took its toll on Wanjĩra’s parents-in-law and both died within months of each other. Hardly were they buried on their one acre but Wanjĩra and her Kikuyu neighbours were surrounded by hostile youths blowing cow horns and wielding bows and arrows. The herd she had so painstakingly built over time was driven away before her very eyes and her home was razed to the ground. Wanjĩra and her family fled without a backward glance, her husband with three arrow wounds in his side.

A decade later, starting in April of 2007, Wanjĩra says that they began receiving anonymous written demands that they move away or face certain death.

Unlike the many displaced who ended up at the Nakuru Show Ground where disease was rife and the hardship beyond endurance, Wanjĩra and her husband took their family to Gatundu North. Someone had told them that they could live and grow their food inside Kieni Forest in exchange for providing labour to plant trees. From 2008 to 2013, the family joined those who had moved into the forest following the 1992 clashes, living under plastic sheeting in a river valley inside the forest, co-existing with marauding elephants as best they could until the government sent in the General Service Unit to evict them. Following a stand-off, the 805 families squatting in the forest were eventually paid 400,000 shillings each by the government in lieu of land, and it is this payment that enabled Wanjĩra and her husband, together with four other families that had also taken refuge in Kieni Forest, to buy land in Ndaragwa in Nyandarua County.

Like much of the land in this part of Nyandarua County that borders Laikipia East, the land on which Wanjĩra and her family finally settled had been occupied by a British settler in colonial times. The 3,400-acre ranch was eventually sold in 1964 to a group of Kenyans who ran it commercially for almost two decades, growing wheat and keeping livestock, before they subdivided the land among themselves. Over time, some of the owners have further subdivided their farms, bequeathing the parcels to their offspring or selling them to those like Wanjĩra’s family looking for land on which to (re)settle.

Just a kilometre or so down the road from Wanjĩra’s homestead, one such landowner sold some 30 acres of his land to the government to be subdivided amongst victims of the 2007/2008 post-election violence, each family receiving two and a quarter acres. Waithiageni does not know exactly how old she is. Ndiathomire, she tells me, I did not go to school. But she thinks she was about eight years old when her father moved the family from Mũrang’a to what was then Kisumu District. Waithiageni’s father had left his family behind and moved to Nakuru to work on a settler’s farm. Come independence, he applied to be resettled on the Koru Settlement Scheme and moved his family there.

Waithiageni now lives by herself in a corrugated iron shack by the side of a dusty track, having been chased off her father’s 20 acres at Koru and losing her only son in the 2007/2008 post-election chaos. To survive, the now elderly Waithiageni depends on casual work, when it can be found, and on the kindness of her neighbour Nyagũthiĩ, a mother of two grown-up daughters who escaped the violence at Londiani in late 2007.

A government vehicle dropped Waithiageni and her neighbours off in this shrubland in 2014, leaving them to get on as best as they could with no shelter and nowhere to relieve themselves. The closest source of water is a trek downhill to the Pesi River, the nearest school miles away and the health centre further beyond. No matatu comes this way and a boda boda ride to the trading centre along the Nyeri-Nyahururu road will set you back 300 shillings, a day’s wage in these parts. The 25,000 shillings they had each received to build a home and the 10,000 shillings start-up capital did not stretch far enough and eight of the twelve families left within the year to find a more hopeful livelihood elsewhere.

Kenya is a state party to the Great Lakes Pact, one of the few international agreements that address displacement in a comprehensive and holistic manner. Kenya domesticated the Pact’s Protocol on the Protection and Assistance to Internally Displaced Persons through an act of parliament on 31 December 2012. It establishes a legal framework for the protection of IDPs through the incorporation of the United Nations Guiding Principles on Internal Displacement into domestic law.

A government vehicle dropped Waithiageni and her neighbours off in this shrubland in 2014, leaving them to get on as best as they could with no shelter and nowhere to relieve themselves.

Specifically, Section 9 of the IDP Act foresees that “The Government shall create the conditions for and provide internally displaced persons with a durable and sustainable solution in safety and dignity. . .” and that, among others, the following conditions for durable solutions shall apply: long-term safety and security; enjoyment of an adequate standard of living without discrimination; access to employment and livelihoods; and access to effective mechanisms that restore housing, land and property.

In November 2013, Nelson Ributhi Gaichuhie, then Chairperson of the Departmental Committee on Administration and National Security, made a statement in parliament to the effect that the government had fully complied with Section 9 (3) of the IDP Act, saying that those affected had been provided with relief food and decent housing. However, to put it in Kenyan parlance, things on the ground are different. Eight years after they were dumped by the government in their new “home”, Wathiageni and her neighbours still live in what can only be described as hovels lacking even the most basic of amenities. Eight long years on, the government has yet to undertake the necessary surveying to allow for subdivision of the land into individual parcels and so, unable to work their land, and without title, they live huddled together on a bare patch by the roadside, walking miles each day in search of casual labour on other people’s farms.

As for Wanjĩra’s family, the 400,000 shillings that it finally received in compensation was just about enough money to buy two acres of land and put up a small wooden structure to house the family of ten. After years of ill health compounded by the hellish living conditions in Kieni Forest, Wanjĩra’s husband died in 2016 and was buried on his land. Her first-born son followed soon after. Her seven surviving children are now grown and two have established their homes on the family’s land. Wanjĩra says that, having lost everything in Londiani, rebuilding what the family lost without resources seems like an insurmountable challenge. On a neighbouring farm is a neatly tended field with onions planted in zai pits. Wanjĩra tells me the land is leased by a farmer with the means to bring water up from the Pesi River about a kilometre away. Wanjĩra hasn’t those means; she must wait for the rains.

The second of the Great Lakes Pact’s ten protocols that is particularly relevant to the internally displaced is the Protocol on the Property Rights of Returning Persons that requires member states to provide legal protection for the property of the displaced and establish legal principles on the basis of which they are able to recover their property. But while the IDP Act requires it to ensure “access to effective mechanisms that restore housing, land and property”, the government appears to have thrown in the towel even before it has started. The following statement from Gaichuhie to parliament makes clear that the government has no plans to ensure that those who lost land and property recover them or are adequately compensated:

“Some of them have title deeds. Very few of them have not been able to go back to where they were living. But I can tell you that most of the IDPs were business people in major towns. That is why the Government has decided that rather than wait to buy land and give it to somebody who had a big supermarket in town, it would give such individuals Kshs400,000 to start businesses. So, not all the IDPs had land. Some of them were businessmen. Some had land for which they did not have title deeds”

The IDP Act became operational in 2013 but the constitution of the National Consultative Co-ordination Committee (NCCC), the body tasked with implementing the Act, was only gazetted in October 2014 and the Chair of the committee appointed in November 2014. Patrick Githinji, who had been appointed to the committee as one of the two IDP representatives foreseen in Section 12 (3)(i) of the Act, and with whom I spoke at length on the 3rd of August 2022, explains that the committee commenced its work in April 2015, and its first task was to vet the internally displaced still living in 65 camps across the country with a view to compensating them and shutting down the camps. This task was accomplished by mid-2016 and—with the exception of Muhu Camp in Nyandarua County and Donga Farm in Subukia in Nakuru County, because the land bought by the government for the resettlement of these IDPs is in dispute—all the camps were closed and 11,000 households were paid 200,000 shillings each, the government having argued that it could no longer afford the 400,000 shillings it had paid to Wanjĩra’s family and others in 2014.

While the IDP Act requires it to ensure “access to effective mechanisms that restore housing, land and property”, the government seems to have thrown in the towel even before it has started.

The next task of the committee was to ensure the compensation of the so-called Integrated IDPs (that is, those living dispersed among communities, whether with relatives or friends or in rented accommodation in urban or peri-urban areas) who numbered 193,000 households according to government records. They were offered a paltry 10,000 shillings in compensation which they turned down. Further negotiations raised the sum to 50,000 shillings but in the end, the government reviewed the list, reducing the number of integrated IDPs to be compensated to 83,000 households. Of these, 30,000 households were never paid, the government having recalled the funds from the disbursing banks. As it turns out, Wanjĩra and Waithiageni are the lucky ones.

According to an undated confidential report of the Refugee Consortium of Kenya available online, the NCCC is no longer operational. This is confirmed by Githinji who says that although the term of the first NCCC was to end in December 2017, by September of that year the NCCC secretariat had been shut down and seconded staff recalled to their respective ministries.

Together with other members of the National IDPs Network-Kenya, Githinji eventually petitioned the Senate in October 2020, alleging that there were attempts to repeal the IDP Act. In their petition, the group also claimed that land bought by the government to resettle IDPs had been illegally allocated to non-IDPs or grabbed by individuals, and that many IDPs continue to languish in makeshift tents. They also accused the government of refusing to release the funds due to Integrated IDPs because of identification errors introduced into the records by the government’s own officials, and lamented that there was no government authority at whose door they could lay these claims.

Further negotiations raised the sum to 50,000 shillings but in the end, the government reviewed the list, reducing the number of integrated IDPs to be compensated to 83,000 households.

Upon receipt of the petition, the Senate invited the group to appear before the Senate Committee on Lands, Environment and Natural Resources chaired by Sen. Mwangi Githiomi in November 2020, where, following a two-hour meeting, they were advised to table a fresh petition using the Senate’s guidelines. This they did and it was agreed that the group would again meet with the Senate Committee after the Christmas recess, in February 2021. They have no news since.

By the time the IDP Act was enacted in December 2012, another 112,000 people had joined the ranks of the internally displaced, followed by a further 55,000 in 2013, over 220,000 in 2014 and over 216,000 by mid-2015 (even as the NCCC was finally sitting down to its task), most of them victims of inter-communal violence. Meanwhile, as recently as October 2021, members of the National IDPs Network-Kenya were appealing to President Uhuru Kenyatta to finalise the resettlement and compensation process for those IDPs that were forced to flee their homes in 2007/2008 before the end of his term. Both President Kenyatta and his Deputy William Ruto had made numerous promises on the campaign trail in the run-up to the March 2013 general election—while facing charges of crimes against humanity at the International Criminal Court in the Hague—that all the displaced would be resettled within the first 100 days of their administration if they were elected.

In the face of government inaction, some of the Integrated IDPs who were denied compensation in 2017 have converged on Kianjogu, in Laikipia County, occupying land that was purchased by the government for IDP resettlement but never subdivided. They arrived in March/April of this year from Nyeri, Nairobi, Uasin Gishu and other counties across the country and are living in Kianjogu much as they did when they were first forced to flee their homes, massed together in unsanitary conditions and refusing to yield to threats from the government.

It would appear that the IDP Act was cynically enacted for the sole purpose of creating a vehicle—the NCCC—to facilitate the closure of the tens of camps strewn across the country and disband their residents; out of sight out of mind. If that is the case, then the government has circumvented its duty not only to address the plight of generations of IDPs, but to also provide assistance and protection to the newly displaced, and to put in place structures and measures to prevent further internal displacement. The outgoing government of Uhuru Kenyatta and his deputy William Ruto has instead chosen to perpetuate the generational suffering of Kenyans who were first forcibly evicted or were caused to leave their homes by the brutal and inhumane rule of the British colonial government.

Over the century since the Maasai were forcibly removed from their lands in Laikipia to make way for white settlers in 1904, successive regimes have overseen the destitution of hundreds of thousands of Kenyan families. In the post-independence era, many have been forced to leave their homes by politically instigated violence where community is set against community, or by drought, famine, man-made disasters such as the Solai Dam tragedy and development-induced displacement. These hundreds of thousands of our co-citizens exist in the shadow of our lives and many lie in unmarked graves awaiting increasingly illusive justice.

The new government must, therefore, and with great urgency, operationalize the IDP Act and revive and properly reconstitute the NCCC so that it can continue with the arduous task of ensuring that durable and sustainable solutions are found for all the internally displaced. In finally beginning to properly address the plight of the internally displaced, the incoming government will not be without resources: in particular, a policy paper drawn up by the Internal Displacement Monitoring Centre dissects the IDP Act and makes concrete recommendations that, if applied, will equip the nation with an internal displacement response system that is fully operational.

It is unacceptable that over the almost sixty years of Kenya’s independence, successive leaders have built on the colonial legacy of dispossession and destitution of Kenyans. Whoever takes the helm after the 9 August general election must find the moral courage to put an end to the suffering of these Kenyans who, as much as anyone else in this country, have a right to expect a life lived in safety and in dignity.

So far in this series we have commented on several aspects of the upcoming general elections in Kenya. One of our articles, which was published on 8 July, focused on the Independent Electoral and Boundaries Commission’s (IEBC) election preparedness. In it, we discussed the IEBC’s supplier of the Kenya Integrated Elections Management System (KIEMS) kits, Smartmatic International Holding B.V (Smartmatic). For the reader’s benefit, KIEMS refers to the integrated elections management system which the IEBC is required by law to deploy in all elections. It comprises biometric voter registration, electronic voter identification and results transmission – a combination of both hardware and software. Following our article, Samira Saba, Smartmatic’s Director of Communications, reached out to us seeking to set the record straight in relation to claims around the credibility of Smartmatic’s systems. In our article, we cited the Philippine Cybercrime Investigation and Coordination Centre’s conclusion that Smartmatic’s system was ‘compromised’. Smartmatic elaborated on this claim, stating that the finding by the Philippine authority related to a now former Smartmatic employee sharing non-sensitive day-to-day operational material with individuals outside the company who then proceeded to unsuccessfully try and extort Smartmatic. In addition to offering this explanation, Samira informed us that with election day approaching, the likelihood of misinformation is only likely to increase and as such, she was ‘at [our] disposal to clarify any doubts [we] may have about’ Smartmatic.

In the interest of transparency and considering recent news reports around Smartmatic, we took up Smartmatic’s invitation to clarify their role in Kenya’s elections. In this article, we interrupt our regular Road to 9/8 series to set out and analyse Smartmatic’s responses.

But let us first set the constitutional context. Article 81 of our Constitution requires our elections to be “transparent” and “administered in an impartial, neutral, efficient, accurate and accountable manner”. Article 86 of the Constitution requires the IEBC to ensure that “whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent”.

Has the IEBC and its relationship with Smartmatic met these constitutional tests?

Scope of inquiry

Our queries to Smartmatic focused on the following areas. First, we asked Smartmatic to shed some light around its ownership structure and its contract with the IEBC. Second, we inquired about Smartmatic’s proposed activities in the elections, specifically focusing on whether they would be handling any voter data, the reliability of the results transmission module of the KIEMS kits, their system’s critical dependencies and fallbacks, and whether they had confirmed the condition of any legacy KIEMS kits from 2017 which the IEBC intends to reuse. This is particularly relevant as, according to the publicly available tender document, the scope of Smartmatic’s mandate extends to providing the software which will run on all the KIEMS kits in the IEBC’s possession, not just those Smartmatic supplies. Finally, we asked Smartmatic about the recent arrest of Venezuelan nationals affiliated with them, and their relationship with an entity mentioned in a press release by the Directorate of Criminal Investigations (DCI), Seamless Limited.  You can find here the specific questions we posed to Smartmatic and their responses.

Who is Smartmatic?

In May 2021, the IEBC published an international tender seeking a service provider to supply, deliver, install, test, commission, support and maintain KIEMS kits for the 2022 elections. Following the tendering process where five entities put in their bids, the IEBC awarded Smartmatic the contract. This decision was challenged at the Public Procurement Administrative Review Board by an interested tenderer, Risk Africa Innovatis, which alleged that the tender documents did not specify preference margins for local suppliers as required in public procurement law and also did not require international tenderers to acquire at least 40% of their supplies from local suppliers as required in the Public Procurement and Disposal Act. While the Public Procurement Administrative Review Board nullified the award and directed the IEBC to tender afresh, this was subsequently overturned by the High Court and Court of Appeal on the basis that Risk Africa Innovatis technically did not have standing as it did not put in a bid. With the legal challenge out of the way, the IEBC proceeded to sign a contract with Smartmatic. We understand from the IEBC, that the value of this contract is approximately KES 3.2 billion. For comparative purposes, the IEBC’s contract with Safran Identity and Security SAS (now IDEMIA) in 2017, costed USD 39.9 million (KES 4.3 billion at the exchange rate prevalent in 2017) and entailed the supply of 45,000 KIEMS kits. While the IEBC may seem to have cut costs, it is worth highlighting that it is only acquiring 14,100 KIEMS kits from Smartmatic, less than a third of the amount it acquired in 2017. We understand from the IEBC that 41,000 kits which it acquired in 2017 are still functional. Whilst such contracts may differentiate between the price of hardware, software and support and maintenance, a back of the envelope approach to pricing based on the number of KIEMS kits supplied would suggest that Smartmatic is materially more expensive than IDEMIA.

When Smartmatic approached us, they introduced themselves as the ‘undisputed leader in the elections industry’, having ‘deployed election technologies in 31 countries.’ Founded in Florida in 2000, Smartmatic has gone on to notably provide technology for elections in Belgium and Norway, among other countries. They further cited accolades such as recognitions by the United Nations, European Union, and the Carter Centre. However, with the existence of news reports relating to Smartmatic’s ownership structure and bearing in mind the consequential role they are playing in Kenya’s democracy, we asked Smartmatic to provide us a with further detail on its organisational structure and ultimate beneficial ownership. We also asked if they would be willing to share its contract with the IEBC in the public interest.

We understand from the IEBC that 41,000 kits which it acquired in 2017 are still functional.

In response, Smartmatic did not provide us with its ownership structure, only stating that Smartmatic Corporation is currently incorporated in Delaware, USA. Two of its founders, Antonio Mugica and Roger Piñate run the company. By its own account, 83% of the shares in Smartmatic Corporation (which is the entity incorporated in the USA) are owned by SGO Corporation Limited, a holding company incorporated in the United Kingdom. SGO in turn is owned by the Mugica and Piñate families. The remaining shares in Smartmatic Corporation are held by employees and angel investors. According to the response we received, Smartmatic International Holding B.V.—the company which received the tender from the IEBC— ‘is part of this structure’. Smartmatic also declined to share its contract with the IEBC on the basis that confidentiality requirements prevented them from doing so.

A publicly available search on SGO Corporation reveals that it had, as directors, Lord Malloch Brown, but he resigned on 4th December, 2020, Sir Nigel Knowles but he resigned on 18th May, 2021 and David Giampaolo but he resigned on 9th August, 2017.  As far as we can tell SGO Corporation Limited only has two directors, Antonio Mugica and Roger Piñate. From what we can tell, when Sir Nigel Knowles, Lord Malloch Brown and David Giampolo resigned, they were not replaced by other independent directors.

Elections are credible when the processes around them are transparent and capable of easy diligence.  The KIEMS kits and the software relating to them are at the very heart of the election process. So Smartmatic are central to our elections. Being absolutely clear as to who Smartmatic is, what their corporate and governance structure is, their precise shareholding and their funding structure should be a matter of public record.  The IEBC should have required this and should have shared this information with the public.  We consider that even if the IEBC did not, Smartmatic should have volunteered this information in response to our request.  Again, through this article, we request them to do so.  We consider that it does not behove Smartmatic, whose business model is designed to be at the nerve centre of democratic transitions, to be less than fully transparent about such matters. Being less than fully transparent creates a cloud of mistrust and uncertainty especially when one considers the history of Kenya’s elections particularly since 2002 and the palpable tensions that surround elections.  This is all the more the case because Smartmatic, on their website, proclaim that “transparency is at the core of what we do”.  Yet the company that ultimately owns Smartmatic only has the founders as directors and does not have any independent directors. One can expect robust corporate governance when independent directors are present and the likelihood of less robust corporate governance when they are absent.

What is Smartmatic’s role in the 2022 Kenyan elections?

In the run up to the forthcoming elections, there have been numerous news reports around the procurement of KIEMS kits and their reliability. For example, it was reported that once Smartmatic was awarded the contract by the IEBC, they had a challenge kicking off as the IEBC’s previous service provider, IDEMIA, allegedly held on to voter data due to a pending KES 800 million payment from the IEBC. A few months after, once the voter register was updated, the IEBC allegedly reported a failure rate of nearly 60% during a dry run of the results transmission system. Bearing the recent developments in mind and considering the importance of these kits, we sought to have Smartmatic clarify whether they would be handling voter data in accordance with the Data Protection Act, 2019 (DPA); whether, in addition to supplying new KIEMS kits, they had confirmed the condition of the remaining 41,000 KIEMS kits which the IEBC had procured in 2017; whether they would be willing to comment on the failure rate recorded during the dry run of the results transmission system; what critical dependencies their systems rely on; and what fallbacks they have in place.

Smartmatic, in a broad response to our queries, directed us to a press statement issued by the IEBC on 26 July, stating that the IEBC is the only entity at liberty to speak authoritatively about the election process. We are unclear as to why Smartmatic believe they are not at liberty to speak about matters in the public domain. They also refrained from commenting on the technical points regarding the reliability of the KIEMS kits, the failure rate, and their use of fallbacks. We consider that this is another missed opportunity by Smartmatic. In relation to their handling of voter data, Smartmatic stated that it ‘does not own or copy any personal data about voters in Kenya.’ They further went ahead to indicate that they are not in charge of processing results as the results are manually counted in each polling centre and tally reports are physically transported to tallying centres. By its account, Smartmatic does not play a role in any of these functions. Their KIEMS kits will only be used to transmit statutory tallying forms that are manually completed by the IEBC’s officers, not to tally any results. These tallying forms will be published by the IEBC on a public site and an official tally will be done manually in the tally centres.

It was reported that once Smartmatic was awarded the contract by the IEBC, they had a challenge kicking off as the IEBC’s previous service provider, IDEMIA, allegedly held on to voter data due to a pending KES 800 million payment from the IEBC.

Smartmatic’s account of the election process is broadly accurate, but major questions remain unanswered. In accordance with the Elections Act and its subsidiary legislation, the voting process begins when a voter is biometrically registered through a KIEMS kit prior to the elections. On election day, a voter is identified using the KIEMS kit’s electronic voter identification system. After being identified, they vote and are marked, through the KIEMS kit, as having voted. Tallying commences immediately voting ends and the presiding officer is required to complete the statutory Form 34A with the final result of the vote. While the tallying process is entirely manual, the eventual tally must be keyed into the KIEMS kit’s results transmission system and a scan or photo of the Form 34A uploaded. The same process is replicated cumulatively at the constituency and national levels with the Forms 34B and 34C respectively. All ballot papers and physical copies of the forms are delivered to the national tallying centre for verification before a declaration is made.

While Smartmatic’s claim that it neither owns nor copies any voter data may be technically accurate, it does not substantively respond to our query relating to compliance with the Data Protection Act, 2019. In the tender for the supply of KIEMS kits, the IEBC specified that the successful bidder would be required to undertake voter data migration from the previous system to the new one. Further, KIEMS contains three modules: biometric voter registration, electronic voter identification and results transmission. Two of these modules directly involve the handling of voter data such as national identification numbers. Based on our understanding of the tender, the supplier of KIEMS kits is also required to provide the software which the kits will operate on and on election day, is also required to provide technical support in relation to both hardware and software. With this in mind, it seems unavoidable that Smartmatic will handle voter data.  Its compliance with the DPA therefore remains an open question. In fact, the impasse with IDEMIA over voter data seems to confirm it. We must then think about its compliance with the obligation to register with the Data Commissioner, the provisions on cross border transfers of personal data, and, where it temporarily stores data, the requirement to maintain a server or a copy in Kenya. We point out that the IEBC has also contracted other service providers for among other things, maintenance services for its data centre, the supply, delivery and installation of network monitoring tools, the supply of the KIEMS network, and the supply of security information and event management, so Smartmatic is not solely responsible for the data life cycle.

On the reliability of the results transmission system, Smartmatic also did not respond. In the tender calling for bids for the supply of KIEMS kits, the IEBC specified that the successful entity (now Smartmatic) would be required to provide software support for all KIEMS kits, and as established, the KIEMS includes a results transmission module.  Smartmatic did not respond to our request for comment on the failure rate recorded during the IEBC’s dry run. Further, they also did not confirm whether they verified the condition of the legacy systems owned by the IEBC. This leaves a host of open questions: since we presume the Smartmatic’s software will run on both the KIEMS kits they have supplied to the IEBC and on the legacy systems, how do we allocate responsibility for their proper functioning as between Smartmatic and the IEBC?  How will we know whether the failure of an KIEMS kit to operate is attributable to IEBC or Smartmatic or whether the kit that failed was supplied by Smartmatic or was a legacy unit?  Is Smartmatic’s limited responses consistent with their public proclamation that “transparency is at the core of what we do”.

Who are they working with?

In late July, three Venezuelan nationals entering Kenya were arrested while in possession of election materials. The DCI confirmed the arrest of Joel Gustavo Rodriguez, Carmago Castellanos Jose Gregorio and Salvador Javier Suarez. According to the DCI, the trio attempted to enter Kenya while in possession of stickers used to label election elections equipment. It was apparently not immediately clear to the authorities that these individuals were employees of Smartmatic or agents of the IEBC. In the DCI’s press release, it was alleged that the individuals came to Kenya at the invitation of Abdullahi Abdi Mohamed, an individual associated with Seamless Limited.  Little is known about Abdullahi Abdi Mohamed and his LinkedIn profile has been deleted. The IEBC responded to these events by issuing a press release confirming that the individuals were employees of Smartmatic and that the materials in their possession were non-strategic in nature. The IEBC went further to indicate that Smartmatic had a local partner in Kenya as required by the tender but did not specify who the partner was. We asked Smartmatic to confirm whether the three individuals were their employees. We also asked them to confirm whether they had procured the services of Seamless Limited, and if so, to shed some light on Seamless Limited’s specific role in the elections and its capacity to carry out this role.

Smartmatic confirmed that all three Venezuelan nationals were employees of Smartmatic, employed through one of its subsidiaries in Panama. All three have permanently resided in Panama for approximately 10 years and have worked on elections in several countries. In relation to the stickers in their possession, Smartmatic informed us that they were merely logistical in nature and not electoral material. They further indicated that the stickers ‘were printed according to the guidelines in the gazette notice published on July 1, 2022’ by the IEBC. Regarding its affiliation with Seamless Limited, Smartmatic declined to comment on the basis of having signed a non-disclosure agreement.  Their exact quote was “As per NDA signed, we don’t comment on partners.”

The response provided by Smartmatic in relation to the stickers, while technically accurate, raises many questions. For one, it is not clear why Smartmatic’s employees were carrying the stickers in their personal luggage. Further, it is also not clear on what basis Smartmatic was printing and supplying the IEBC with such stickers, yet it was not within the scope of the tender for the supply of KIEMS kits, and the IEBC is required to tender offers from the public for all supplies. For illustrative purposes, the IEBC has tendered for the supply of non-strategic election materials such as reflective jackets. The gazette notice which Smartmatic referenced only contains the official list of polling stations. It does not contain any guidelines for Smartmatic to adhere to.

In relation to Seamless Limited, the tender published by the IEBC required Smartmatic to provide proof of technical support staff with a local registered office in Kenya.  In a press statement, the IEBC indicated that Smartmatic complied with this requirement and procured a local partner in Kenya.  The IEBC did not name the local partner. News reporting alludes to this local partner being Seamless Limited. However, Smartmatic declined to confirm or deny this.  We reached out to Seamless Limited for comment but are yet to receive a response as at the date of this publication.  As far as we can tell, its website is generic in nature and does not refer to its role in the elections. The phone number quoted does not connect. Its offices are based, it appears, in a co-working space.

Again, both the IEBC and Smartmatic are failing to be as transparent as we consider they should be in the context of a democratic election process.  We do not consider that relying on a non-disclosure agreement (NDA) is a good ground for refusing to even confirm the identity of the local partner that Smartmatic has chosen to work with, more so considering that Seamless did not consider itself bound by this NDA and confirmed its relationship with Smartmatic in a statement to the press.  Smartmatic could have chosen to simply deny any connection with the entity known as Seamless Limited. They have not done so.  So, we have no option but to assume that Seamless Limited is Smartmatic’s local partner, especially since news reports  suggest that Abdullahi Mohamed has confirmed the existence of a relationship between Seamless Limited and Smartmatic.  If so, then who is Seamless?  What qualifies them to also be at the heart of our democratic process?  What is their precise role in the forthcoming elections? How do we hold them accountable for this role?  We have no answers to any of these questions.

Conclusion

As Kenyans vote they deserve full adherence to the Constitution by the IEBC. A clear picture from the IEBC and Smartmatic on the ownership, corporate structure, funding, and governance structure of Smartmatic were necessary for these constitutional thresholds to be met. It should have been easy and simple to do. It has not been done. The role of Seamless Limited remains more than opaque, with Smartmatic referring to an NDA and the IEBC referring to a local partner but not naming that local partner. Kenyans can draw their own conclusions about this obfuscation.  IEBC and Smartmatic should both be able to confirm who the “local partner” is and what their precise role is. Many questions, not too many answers and only days to the election.  It all seems so sadly familiar.

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This article was published in collaboration with Africa Uncensored. 

Sajjabi, say Baganda, liwoomera ku ngabo. 

Loosely translated: “He may be a bad person, but he sure is sweet with a shield (i.e. a real asset in battle)”, or even: “Horses for courses”, as the English might say.

On July 7th Boris Johnson announced his resignation as UK Prime Minister. He will formally leave office in a matter of weeks. Johnson becomes the third Conservative Party British Prime Minister to resign from the post in six years, and the fourth in twelve. The process of replacing him is underway, from a choice of candidates no better, and in some cases, worse, than he is.

So far, his party, elected to government in 2010, has managed to retain power even while shedding party leaders who, under the British system, become Prime Minister.

This is the latest development in a cascade of events triggered by the 2016 decision to hold a referendum on Brexit—whether Britain should exit her 40-year membership of the European Union or not.

The referendum itself was a product of earlier developments, namely the attempt to manage the political turmoil caused by the long overdue 2008 economic crash, which triggered a panicky “do something” mentality among the political and media classes.

Basically, it amounted to blaming the country’s current economic woes on Britain’s membership of the European Union. The Labour Party’s Gordon Brown, who had inherited the post from the long-serving Tony Blair and with it the downside of Blair’s artificial economic growth, had failed—since he had served as finance minister under Blair—to distance himself from the rising economic drama, going on to lose his parliamentary majority in the 2010 election. Gordon resigned and the Conservative Party formed a coalition government with other parties.

The British public and establishment both could hardly say much else; there are no other explanations, palatable to them, for their current mess.

It can be very hard to recognise a collapse from the inside, but the fact is that economics over there is dead, and this has thrown its avatar called politics into turmoil. And it is no longer politics. It is the ghost of politics: it cannot explain the economic crisis; it cannot listen to experts on the matter of the climate emergency; it cannot even fix basic service and infrastructure problems.

Mistaking motion for progress, David Cameron, after renewing his mandate following an election that gave him full control of government, eventually decided to use it to end the “blame the European Union” debate. Hence the referendum. Unfortunately, only erroneous information was available for the subsequent discourse, and the result was Brexit: a decision to leave the European Union and the vote that got rid of Cameron. There followed a messy parliamentary process to turn Brexit into international and domestic law that got rid of his successor Theresa May, and finally a law in need of implementation that has bedevilled Boris Johnson.

The outbreak of the COVID-19 pandemic only served to delay and to distract from this process. But the day came when the confused anger of the British public about why they are so poor while living in the world’s 5th richest country felled another leader.

The underlying purpose to all this manoeuvring had always been one: a mobilisation necessary for the isolation and defeat of alternative ideas that were beginning to take root in the population and eventually found organised expression through a tendency to the left that soon took leadership of the main opposition Labour Party under the beleaguered leadership of Jeremy Corbyn. For all his perceived shortcomings, Corbyn came across as a person with a real understanding of the deteriorating living conditions of ordinary people, and a genuine belief that another way was possible.

The day came when the confused anger of the British public about why they are so poor while living in the world’s 5th richest country felled another leader.

You see, the most contentious question at the heart of British politics for nearly two centuries has been about the best way to distribute the proceeds from their expanding global economic earnings that up to now are a significant contributor to the “British” economy. The birth of the Labour Party in 1900 was the ultimate political product of those contestations.

Corbyn tried to reclaim that old Labour Party from the Blair legacy that had merely been an adaptation to the new economic and political realities began and imposed in the 1980s neo-liberal era under then Conservative Prime Minister Margaret Thatcher.

Had Corbyn succeeded, it would have amounted to a near-complete reversal of Thatcherism. A surrender. The mission of the entire political establishment, aided by the corporate media, was and is to defend the Thatcherite neo-liberal ring for as long as possible, that’s all. So Corbyn was vilified, and a national myth, amounting to a dangerous nostalgia, and a distraction from truth, which is its intention, was promoted instead.

This meant the British excavating all those elements of nostalgia that could be safely invoked for the purpose of making them feel good—without exposing the historical seedy underbelly of Empire—as a cultural ploy. Johnson was the perfect tool for this: embodying a pandering to imagery and language rooted in a comforting cultural ecology reminiscent of the Billy Bunter cartoon character and the whole anachronistic Harry Potter ethos.

But British/English identity is a construct of the imperial class. The then nascent bourgeois classes of Western Europe developed two key institutions: exclusive schools and the armed forces, which in turn created a cadre template invested in racism, class aspiration, greed, callousness, cynicism and a fundamentally dishonest ethos. Basically what one would need to be in order to conquer much of the world.

All the branches of the British state have always had such people in senior management.

In this sense, anyone can become, or at least aspire to become a part of the British management class; you just need to have attended the institutions that teach these values. Boris Johnson was perfect for the task then at hand: a classic neophyte, being descended from (white) immigrants himself—neophytes are always more fanatical than the originators.

There is a lot of historical precedence to this. What the English present as a scamp and “naughty boy” is actually a dangerous sociopath. There have been plenty of them. There were the 16th Century sea pirates Sir Walter Raleigh and Francis Drake, licenced to pillage by Queen Elizabeth I. There was the consummate conman known as the African explorer Henry Morton Stanley (1841-1904), as well as Robert Clive (1725-1774) whose licenced colonial British East India Company gave a whole new meaning (and even word: “loot”) to the practice of mass murder and plunder. In many cases, they are discarded and disgraced once they are no longer useful: Raleigh ended up being executed by the very state he had once served, and Clive committed suicide years after being accused in parliament of having enriched himself at the expense of the country. Now Boris Johnson has also been dumped.

Johnson was the perfect tool for this: embodying a pandering to imagery and language rooted in a comforting cultural ecology reminiscent of the Billy Bunter cartoon character.

The rest of the candidates to replace him are largely ideologically the same. Just not necessarily white-skinned immigrants like him. They are made up of the very people who forced Johnson to quit after seeing that his devotion to scandal would likely be a liability at the next election.

Of the few non-whites that have also aspired to premiership—and one remains in the running—their only real challenge is how sellable their dark skins are to the wider electorate that has historically been indoctrinated to dislike, despise and distrust non-white people.

However, therein lies the hypocrisy. Whatever their skin-colour, none should pretend that they did not know exactly who Johnson was; they did. And what he was, was exactly what they needed to fight off Corbyn’s socialism at the time: a typical specimen of English nastiness as perfected by the English middle classes, the cleverest part of which is pretending not to know how nasty they are, and the damage their nastiness has inflicted on those subjected to it.

Whoever replaces him will do no better in substance. It will just be a change in style. What we are witnessing with the ruling Conservative party is not a party problem. Because the issues they are faced with are not personal to Johnson; trying to personalise the crisis to Johnson—whose character was already a matter of long-standing public discourse well before he became prime minister—or even to his party, is actually very disingenuous. First, because, as I have said, they needed such a person to deliver the fullness of Brexit. Secondly, because this crisis is not a problem of his party alone; they are problems of the entire British political system as it stands (any of the major parties, if in power, would have been split by Brexit) and of the economic arrangements on which it stands and is expected to manage.

In short, what Britain is faced with is a Great Unravelling, with political, social, economic, constitutional crises coming at once. Key questions, such as the rising cost of living, Brexit’s disruption of travel and commerce with the European landmass, and a looming break-up of the kingdom by those countries within it that wished to remain in the European Union but were outvoted by the much larger, specifically English, ethnic population, are all now beyond the ability of “normal” politics to resolve.

All this is because the problem really began between the 1940s and the 1960s, when the formal British Empire began to dissolve but the UK’s rulers failed to wean themselves and their populations off the standards of living they had derived from it, even as that wealth diminished. This broke the social democratic compact, which is what Thatcherism was about: the pie to be shared out had become smaller, so if it was to come down to a choice between enabling the continuance of private profit-making from overseas or creating a more egalitarian state at home, then the needs of the masses would have to be dumped from public policy budgets.

You see, “politics” is about the management of the economically-created social dynamics of society. When there is no economics to manage (or it has gone beyond the possibilities of management), then there can be no sensible politics. It becomes un-anchored.

What Britain is faced with is a Great Unravelling, with political, social, economic, constitutional crises coming at once.

The United Kingdom economic crisis is real, is severe, and cannot be fixed within their preferred frame of thinking. And, by keeping this current course, it is also going to be terminal.

Clearly, the only way out of this is to discuss the redistribution pattern of existing wealth created by the UK, but the epic stubbornness of the English ruling class will ensure that this does not happen; they will doggedly soldier on regardless of the damage they may cause to their own society, other societies, and the global natural environment.

The extent to, and ruthlessness with which, the Jeremy Corbyn faction and agenda were discredited and suppressed by the state and corporate media, and even by the Labour Party’s internal administration itself, shows how determined those who really run Britain are to maintain this direction against all odds.

Keir Starmer, the establishment journeyman politician installed into the Labour Party leadership from where he has hounded the Corbynites, may follow. He was nothing more than a blocker; a place-holder. Unless (or perhaps even if) Corbynite ideas persist among the masses in an organised way, he is also no longer needed.

So, it is a crisis specifically of England, the ground-zero of the British Empire project, and of England’s Englishness.

The only way to get out of this, would be for them to stop being the English invented by the empire and rediscover how to simply be a people.