CHARACTERISTICS OF THE DATA

THE HISTORY OF KENYAN ELECTION VIOLENCE

The peacefulness of the 2013 election is worth reflection and comment by both social scientists and political analysts because Kenyan multiparty elections from 1992 to 2013 have been characterised by varying levels of politically sponsored violence, often in the form of ‘ethnic clashes’ (Klopp Reference Klopp2001; Barkan Reference Barkan2004; Roessler Reference Roessler2005). In highly contested elections, electoral violence may be a mechanism either to force ideological voters of the competing party to vote in their favour, or instead to prevent them from voting at all (Chaturvedi Reference Chaturvedi2005). Researchers have established that former Kenyan President Daniel arap Moi privatised violence in a bid to stay in power while also following donor demands for multi-party elections. In order to accomplish both goals simultaneously, Moi sponsored ethnic clashes around election periods beginning in 1992 (Roessler Reference Roessler2005). In 1992, at least 1,500 people were killed, and 300,000 displaced. Some observers noted that this earlier violence set in place the dynamics – the use of informal militias, hate speech and mobilisation based on exclusionary and nationalistic ideologies – that would lead to further violence. The 1997 election was characterised by communal violence and foul play (Barkan Reference Barkan2004). Violence escalated before and after multi-party elections in Kenya in 1997 (Klopp Reference Klopp2001). The KANU government under Moi created militias of local youth to engage in ethnic clashes, paying them for each person killed. This multi-ethnic violence was part of a strategy of derailment of the opposition (Klopp & Zuern Reference Klopp and Zuern2007). Strikingly, there were no ethnic clashes in 2002. Klopp and Zuern argue that this ‘state of peace’ occurred, in part, because President Kibaki may have promised former President Moi impunity for crimes under his rule. Other observers have noted that in the 2002 election both main candidates for president (Mwai Kibaki and Uhuru Kenyatta) were Kikuyu and were also both part of a powerful economic and political elite class with strong personal and political connections to each other. Kibaki had served under Moi, and Moi had served under Kenyatta's father. This line up of Uhuru Kenyatta versus Mwai Kibaki as presidential candidates in 2002 may have resulted, in part, from Moi's political calculation to have a peaceful election during his transition and one that ensured Moi's protection.

THE ROLE OF INFORMATION TECHNOLOGIES IN DEMOCRATISATION

There is a growing literature arguing that Internet communications can be used to enhance political connectivity, encourage political behaviour in individuals and facilitate collective action (Postmes & Brunsting Reference Postmes and Brunsting2002; Tolbert & McNeal Reference Tolbert and McNeal2003; Weber et al. Reference Weber, Loumakis and Bergman2003; Kelly Garrett Reference Kelly Garrett2006; Krueger Reference Krueger2006; Feezell et al. Reference Feezell, Conroy and Guerrero2016). New media have been used to facilitate organising by political groups, confront non-democratic governments (Xenos & Moy Reference Xenos and Moy2007), and to organise political protests against leaders (Shirky Reference Shirky2011; Tufekci & Wilson Reference Tufekci and Wilson2012).

However, information technologies do not always contribute to transparent and effective electoral processes. Governments can also use technology to enhance surveillance and control communication (Deibert & Rohozinski Reference Deibert and Rohozinski2010; Shirky Reference Shirky2011). Both authoritarian and democratic governments have endeavoured to control new media by means of regulations, software and hardware (Rodan Reference Rodan1998). More dramatically, authoritarian governments (including those of Egypt, Ethiopia, Sudan and Uganda) have gone so far as to shut off Internet, cellular telephony, Twitter, Facebook, regular telephony and television broadcasting in an effort to control protest and limit dissent (Golkar Reference Golkar2011; Etzo & Collender Reference Etzo and Collender2010; Bowman & Camp Reference Bowman and Camp2013; Daily Nation 2016).

Information technologies may actually make the political environment less stable and less predictable for both individuals and groups (Bimber & Davis Reference Bimber and Davis2003). Dale & Strauss (Reference Dale and Strauss2009) present impressive evidence that impersonal, noticeable messages, including SMS, increase the likelihood that a voter will make it to the polls, even if the voter and the messenger are not socially connected. Malhotra et al. (Reference Malhotra, Michelson, Rogers and Valenzuela2011) provide support for this finding, demonstrating that text messaging may be a key tool in voter mobilisation during elections.

THE INTERNET, SOCIAL MEDIA AND ELECTIONS IN AFRICA

Scholarship on the role of new media and information and communication technologies in African elections remains limited. The Umati Project was without a doubt the largest effort to date to monitor Kenyan hate speech online. Umati built on the success of the Ushahidi ProjectFootnote ⁵ and examined incidences of hate speech online (I-Hub Research 2013; Benesch Reference Benesch2014a).Footnote ⁶ For nine months (September 2012 to May 2013) Umati examined content from selected blogs, forums, online newspapers, Facebook and Twitter, collecting 5,683 examples of hateful speech (Benesch Reference Benesch2014a: 13). Additionally, vernacular content was also monitored.

The Umati report on online hate speech employed aspects of the Benesch dangerous speech framework, which is multifaceted and focuses on language that: targets a group of people; dehumanises the target; and contains a call to action such as a call to evict (Sambuli et al. Reference Sambuli, Morara and Mahihu2013: 26). The report stated that most Kenyans prefer to use English rather than vernacular when conversing online, and more than 90% of hate speech comments were drawn from Facebook, while Twitter contributed fewer than 5% (Benesch Reference Benesch2014a: 13).

In terms of scholarly research on new media in African elections, Catie Bailard conducted an important study preceding the 2010 presidential election in Tanzania. Using a control group of 65 people and an Internet group of 59 people (n = 124), Bailard found that access to the Internet negatively influenced citizen perception of election fairness (Bailard Reference Bailard2012). Bailard suggests that more research is needed to explore the subtle pathways through which information technology use may have a meaningful political impact. Chisango & Gwandure (Reference Chisango and Gwandure2011) assert that elections in Sub-Saharan Africa are characterised by ‘rhetoric and hate speech’ against opposition parties. Keith Somerville suggests that the Kenyan political discourse is inflammatory and often violent (Reference Somerville2011). Ligaga (Reference Ligaga2012) observes that the Internet in Africa in particular represents a relatively unmediated space of discourse, which is independent of mainstream media, and fairly free of state-centric control. Best & Meng (Reference Best and Meng2015) recently published an interesting paper on the role of Twitter in Kenya, Ghana and Nigeria in elections from 2011 through 2013, which found that Kenyan tweets were as likely to focus on tribal identity as campaign policy. While traditional media such as radio or print newspapers remain key, ideas of contentious speech and rapid distribution combine where SMS, cellular telephony, the Internet, and social media such as Facebook act as rapid avenues for the distribution of both ‘hate speech’ as well as ‘peace speech’.

KENYAN GOVERNMENT EFFORTS TO CONTROL POLITICAL SPEECH AND HATE SPEECH

As the millennium matures in its second decade, governments face a brave new world in the face of rapidly changing political communication and citizen behaviour. Newer information technologies throw a wrench into government efforts to reduce or eliminate political speech because they are much more difficult to regulate and censor than traditional print or broadcast media. Governments can employ several methods to prevent people from engaging in political communication, or indeed, to allow it. On the one end, political communication can be encouraged, with light requirements to hold protests or gatherings, such as getting a permit to hold a march. Alternatively, governments can attempt to prohibit political communication by preventing large gatherings, as occurred in Turkey in 2013.Footnote ⁷ Newspapers can be censored and television broadcasts can be tightly controlled, as is the norm in countries such as China, Myanmar and Iran. As a result, repressive governments – including Libya, the Sudan, Syria and the Egyptian government – have taken some extreme measures to control political communication over electronic and social media, including blocking Twitter and Facebook, and even shutting off cellular telephony and the Internet (Bowman & Camp Reference Bowman and Camp2013). Most recently, in the February 2016 Ugandan election, President Museveni shut off social media temporarily.

Kenya used a slightly softer approach. Under the Kenyan Information and Communications Regulations of 2012, service providers were ordered under article 4 (c) to ‘register users of its system, keep a record of all registrations of subscriptions made, and provide a copy of this record to the regulator upon request by the Commission’.Footnote ⁸ The registration process requires address details, and production of an ID from residents or a passport from aliens in order to receive the sim card required to use a cellular phone in Kenya. Although larger Information Service Providers (ISPs) such as Safaricom and Airtel comply, compliance is not perfect, and smaller providers such as YU do not maintain an effective registration system. This approach registered a large number of cell phone users, but undoubtedly left a large minority of cell phone users unregistered. According to Reuters, Kenya ordered that all lines that could not be traced to a known user be de-registered in an effort to discourage people from sending out provocative texts.

In March 2012, about 10 months before the election, Kenyan ISPs were directed by the GoK to install hardware that would eliminate anonymity of e-mail senders and other web users by December 2012. This effort was pitched by Michael Katundu, acting director for Information Technology at the CCK as critical to the ‘war against terror’ (Kagwe Reference Kagwe2012). However, in the authors’ view it is more likely that this software was, in part at least, a way of monitoring political messages in preceding Kenya's general election. In March, the CCK demanded that mobile operators install the Network Early Warning Systems (NEWS), an Internet traffic monitoring tool. This allowed the CCK to monitor both incoming and outgoing email traffic ‘in an effort to detect and facilitate responses to possible cyber threats’ (Business Daily, the Standard 2012).

Internet service providers protested that this software requirement was in breach of Article 31 of the 2010 Kenyan Constitution, which grants citizens the right to privacy, including a clause preventing infringement of ‘the privacy of their communication’. Prominent Kenyan lawyers also protested. Paul Muite asked that the Kenyan government seek a court order before installing the sensors. According to Citizen Lab, other countries that have employed such domestic surveillance tools include Afghanistan, Bahrain, China, India, Indonesia, Iraq, Kuwait, Lebanon, Malaysia, Nigeria, Qatar, Russia, Saudi Arabia, South Korea, Singapore, Thailand, Turkey and Venezuela.Footnote ⁹ The fact that Kenya is on this list suggests that the Kenyan state currently values security and surveillance over citizen privacy and freedom of expression.

Safaricom (a major mobile telephony provider and information service provider in which the Kenyan government has a significant number of shares) issued guidelines in June 2012 for political mobile advertising aimed at reining in negative political messages nearly nine months ahead of the general election. In September 2012, the CCK issued similar guidelines. Political text messages were limited to English and Swahili (BBC News 2013). Politicians had to send bulk campaign messages for screening through their mobile operators 48 hours in advance.

By February 2013, one month before the election, the NCIC flagged key vernacular words in Kikuyu, Luo and Kalenjin. The NCIC expressed a concern that those communities in particular, who were implicated in the 2007 electoral violence, might use SMS to insult each other (The Star, 13 February 2013). Key words such as ‘thief’, ‘uncircumcised’, ‘dog’, ‘monkey’ and other animal phrases used in political contexts were expressly flagged by the NCIC, because these phrases had been widely used during the 2007/2008 election violence (Capital FM, 7 February 2013). Those found guilty of ‘fanning hatred through text messages’, faced fines of up to $56,000 or three years in jailFootnote ¹⁰ (BBC News, February 2013). Warning notices were sent in February to as many as 30 bloggers.

Further, the NCIC closely monitored political campaigns. For example, government sponsored NCIC field officers went so far as to attend political rallies to monitor what was said, and warning those they believed were guilty of incitement (Africa Research Bulletin 2013). Further, the independent Media Council of Kenya, created by Constitutional article 34(5), monitored radio stations, TV channels and newspapers round the clock to keep track of ‘retrogressive utterances’ (BBC News February 2013). Former Permanent Secretary for Information and Communications Dr Bitange Ndemo reported that cell phone service providers blocked 300,000 hate speech texts per day to prevent a repeat of 2008 post election violence. In the authors’ view, this is somewhat unlikely, as it would have strained the capacity of the providers. However, Ndemo's comments may have been aimed to ensure that Kenyan citizens were aware of the coercive power of the Kenyan State. Hate speech expert Susan Benesch terms approaches such as blocking access to SMS and the Internet, or prosecuting inflammatory speakers as ‘punitive or censorious’ (Benesch Reference Benesch2014b: 4).

The final step in controlling political communication was a massive media campaign by both the GoK and mainstream media promoting peace. As the BBC aptly noted, ‘a media blitz of tolerance’ flooded the airwaves (BBC News, 26 February 2013). The Luo vernacular radio Ramogi FM hosted peace road shows and the Kalenjin-language radio station KASS FM – which was previously implicated in hate speech – played songs calling for peace and cohesion. Even the General Services Unit, the elite Kenyan military unit comparable to the Marines special forces, released a song called Mungu Baba (God is our father) in conjunction with the Kenya Symphony Orchestra highlighting ethnic and gender diversity and praying for peace. Artist Solo Muyundo painted the words ‘Peace Wanted Alive’ on a sidewalk in Kibera (Benesch Reference Benesch2014a). Donors got involved as well. A USAID/Mercy Corps funded project ‘Yes Youth Can’ created coding which allowed Kenyan subscribers to post directly to the project's peace oriented website via SMS (Docksai Reference Docksai2013). UNICEF sponsored a Kenyan patriotic peace song, ‘Amani’ by Boma, which featured photos of young people of different ethnicities, possibly located in Kibera, holding signs saying ‘Amani’ meaning peace in Kiswahili. Indeed, Nation journalist Murithi Mutiga aptly termed this massive nationwide multi-sectoral effort ‘the peace industry’ (Benesch Reference Benesch2014a). A high-ranking Kenyan working at a multilateral NGO dedicated to freedom of information informed the authors that the ‘media combined efforts with peace organisations in getting out messages’ (Media NGO official, int., 28 June 2013). Seen as a whole, this sustained and concentrated effort to focus on peace preceding the election appears to have had the effect of suppressing contentious speech, at least for the period immediately before and after the election.

ANALYSIS OF FREQUENCY OF TEXT MESSAGES BY DEMOGRAPHIC GROUP

Both sets of data collected for this study indicate that communication via SMS about the Kenyan election of 2013 was high. Indeed, about half of those interviewed the week of the election received political text messages from family and friends the day of the election, whereas in the follow-up poll, about one fifth of those interviewed reported that they received an SMS on the actual day of the election about the election or politics (Table II). These high levels of communication over SMS are notable because the GoK actively warned citizens not to send political messages on the day of the election.Footnote ¹¹

ANALYSIS OF CONTENT OF SMS/TEXT MESSAGES SENT ON ELECTION DAY

As noted above, text messages represented a rich source of communication in the 2013 Kenyan general election, between candidates, voters, friends, relatives and even strangers. Certainly, there was a lot of political talk, in English, in Kiswahili, and in various vernacular languages about the election in homes, public transportation, bars, private residences and the street. The benefit of tracking communication over SMS is that the communication is written, and therefore can be recorded. The election week interviews were very useful in helping to document the kind of text messages that voters and citizens sent to each other about the election, during the election.

The most common kind of text message received was one from family and friends encouraging a fellow voter to go the polls. Such reminders can be very effective in increasing voter turnout (Dale & Strauss 2009). The follow-up poll indicated that two-thirds of voters who reported receiving an election-related message received one encouraging them to go vote, or checking to see whether they had voted. Numerous citizens interviewed shared the messages they had received encouraging them to vote. The language was very consistent across regions. For example, ‘Wake up, come and vote.’ [I also heard a] Vuvuzela. I received ten [messages] before 5 a.m. Several people we spoke to during election week also mentioned receiving messages of peace. Peace-related messages were often detailed and thoughtful.

Several messages with a clearly campaign-based message were sent on the day of the election. According to the follow-up poll, messages about a specific candidate were relatively common, ranking right after messages encouraging people to go to the polls (Table II). Family and friends were often encouraged by fellow voters to vote for a specific candidate or party, sometimes in a fairly direct manner.

In terms of campaign messages that did not come from specific family or friends, respondents were often not clear about who had sent them the message, or where the messages had come from.

Some text messages encouraged voting for a specific local candidate.

Despite repeated warnings on television, radio, newspaper and social media against such expression, as many as 14% of the election week interviewees reported receiving messages that they characterised as provocative (ulipokea maneno ya kukera?) or threatening (ulipokea maneno ya kutisha?). These messages range from intimidation to avoid the ballot box, to the extremely obscene, to the insulting. One of the most disturbing messages shared with interviewers specifically warned a voter against exercising the franchise on the basis of religion: ‘You should not vote, you daughter of Osama bin Laden.’

Twelve voters interviewed during election week reported receiving messages that they felt were threatening. One of them received the following message: ‘Even if you vote, your vote will not count.’ It was not always obvious that the messages were, in fact, threatening. Rather, these messages aim to get a point across, and hopefully persuade voters in a certain direction. One voter found the message below to be provocative, although other voters found the message humorous, and several burst out laughing when told about this message: ‘CORD ikishinda mtajua malenge ni mboga’ (If CORD wins, then you are going to realise that the pumpkin is also a vegetable). This message was very intriguing, because it is only meaningful in context. If you are not a Kenyan, you may have trouble deciphering the meaning. The pumpkin may be a food that is not eaten in Kenya until times are desperate. Accordingly, the subtext of this message is that there are going to be ‘dire consequences’ if CORD is elected. Other messages were more direct regarding why one party was more desirable than another: ‘Voting for CORD will be suicidal and will lead to bloodshed, anarchy and mayhem.’ Although this message does not threaten force directly, it suggests that voting for one party will lead to violence, and the use of force.

Other messages indicated how difficult it is to correctly interpret political speech, particularly over text, which tends to be short. For example, ‘democracy is kifua’. This message again uses a sophisticated combination of Swahili and English, both allowed by the regulators’ pen. It can be interpreted as ‘democracy is ‘force’’. It could be read to mean that democracy must be gained by force, or muscle. Or, it could be read as ‘Democracy is forced [on a people]’, or ‘the people have no say’. In Kiswahili ‘kifua’ (chest) is associated with ‘force’ as in ‘usitumie kifua’ ‘do not use force’, which suggests that people were being forced to vote in a certain way, and that was threatening to them. This text was reported by a voter who cast their vote in Garissa, which is a location with high violence levels. Furthermore, the person interviewed reported feeling scared while voting and mentioned the presence of the terrorist group Al Shabaab in the vicinity. Given the brevity of text messages, these snippets of meaning are highly contextual. Yet, this example shows the difficulty of determining whether a specific message is hate speech.

Other types of political speech did not reference violence at all, yet contained political subtexts. An interesting text message which was a variation on ‘vote wisely and peacefully’, is shared below: ‘It's your vote that will count on 4th March. Not pollster's agenda. Vote right.’ This message is intriguing because one of the last reputable polls in the period right before the election had presidential candidate Uhuru Kenyatta with a very slight lead. Several other polls showed opposition presidential candidate Raila Odinga in the lead. Depending on whom this message was sent to, and who sent it, it is likely to be an encouragement to vote for a co-ethnic.

On the one hand, this message could be viewed as ‘inciting’, because it aims to weaken voter confidence in the electoral system. Alternatively, this message could simply be a statement of opinion by a voter of the difficult situation faced by the IEBC.

It should be noted that a rumour in a text message that went viral in 2007/2008 and led to rioting alleged – incorrectly – that Raila had been imprisoned (Osborn Reference Osborn2008). Indeed, spreading misinformation via text messaging, blogging and Facebook may actually be more damaging than speech which threatens violence (Osborn Reference Osborn2008). Michelle Osborn notes that text messages stating that notable ODM officials had been arrested and were targets of assassination plots may have contributed to the second wave of violence in 2008. Notably, the SMS message noted above about the rigging by the IEBC contained no threats of violence, and no banned words. Accordingly, this message could be viewed as a sophisticated evasion of the Kenyan anti-hate speech regulations. These examples demonstrate that it is impossible to completely control contentious speech that can be sent across cellular telephony.

Our election week interviews did not yield any messages that suggested a certain ethnic group be attacked. Further, no one we spoke to during election week reported receiving a text message containing the ‘banned’ vernacular words. But short of that, messages ran the gamut. Several persons interviewed the week of the election mentioned that they had been so offended by messages they had received that they deleted them immediately. Given that the research team conducted the majority of the interviews on the actual day of the election this may mean that people received messages that they found very upsetting, or that made them fearful. This may have been because citizens were afraid they would get in trouble if they shared such messages. Although it is likely that the follow-up poll understated the number of hate messages received, the initial election week study also did not find high percentages of negative messages. These low numbers are also supported by the Umati paper, which found no more than 10 ‘hate speech’ messages online on any given day of the week of the Kenyan election of 2013 (Sambuli et al. Reference Sambuli, Morara and Mahihu2013: 23).

THE LEGALITY OF HATE SPEECH

Pursuing this line of argument, if the GoK indeed did censor speech in 2013, is such censorship allowed by Kenyan law? The Kenyan Constitution (2010) does have strong guarantees of freedom of expression as well as freedom of the media. Article 33(1) gives citizens the right to freedom of expression, including the right to receive, seek or impart information or ideas. Article 34(1) guarantees freedom and independence of the electronic, print and other types of media, but again this protection does not apply to the areas delimited by 33(2). Article 34 does provide citizens some protection, enjoining the government from interfering with broadcasting or publication via any medium.

The right of freedom of expression in Kenya, however, is a limited right. Under Article 33(2) of the 2010 Constitution, freedom of expression does not extend to the right to propagate war, incite violence, participate in hate speech, advocate hatred or support discrimination. Hate speech was criminalised through the passage of the National Cohesion and Integration (NCIC) Act of 2008.Footnote ¹³ The NCIC was established in 2008 as an independent body to spearhead national reconciliation, cohesion and integration and to eliminate discrimination, especially ethnic, racial or religious discrimination, after Kenya went into post-election violence. Under section 13 of the NCIC Act, the focus is on speech that is ‘threatening, abusive, or insulting’, if the person ‘intends to stir up ethnic hatred’. Under the NCIC, Ethnic hatred refers to colour, race, nationality or ethnic or national origins but excludes religion, gender and other group categories. A key provision in the NCIC Act is in Section 62. This section holds liable any media enterprise for publishing any utterance considered to amount to hate speech.

The language of the Kenyan Constitution as well as the NCIC Act of 2008 specifically acknowledges the emergence of new media. Yet, because the Kenyan Constitution is relatively recent, the courts have not had the occasion to interpret the meaning of ‘hate speech’. Nor have the Kenyan courts made definitive statements about where freedom of expression ends, and where hate speech begins. These questions remain largely open, and the Kenyan General Election of 2013 represented a testing ground where the Kenyan government could attempt to push the interpretation in its favour.

During the electioneering period, Kenya's government monitored blogs and social media outlets for hate speech and consequently launched several investigations against bloggers for their alleged hate speech activities (Mukinda Reference Mukinda2013). However, it is not clear whether these cases were prosecuted. So although both the Kenyan Constitution and the NCIC Act ban hate speech, lack of enforcement may render those provisions weaker than they appear to be in the legal texts. Additionally, the GoK has not developed a clear framework to regulate hate speech online, or over social media, although some observers believe that the GoK should step in to tackle hate crimes on the Internet when necessary (CHRIPS 2013).