Abstract
The 2013 general election marked the entry of data-driven campaigning into Kenyan politics as political parties begun collecting and storing voter data. More sophisticated techniques were deployed in 2017 as politicians retained the services of data analytics firms such as Cambridge Analytica, accused of digital colonialism and undermining democracies. It is alleged that political parties engaged in regular targeting and more intrusive micro-targeting, facilitated by the absence of a data protection legal framework.The promulgation of the Data Protection Act, 2019, ostensibly remedied this gap. This paper analyses whether, and to what extent, political parties can rely on the same–or similar– regular targeting and micro-targeting techniques in subsequent elections. While regular targeting differs from micro-targeting as the latter operates at a more granular level, both comprise of three steps- collecting a voter’s personal data, profiling them, and sending out targeted messages.
 This paper considers the legality of each of these steps in turn. It finds that going forward, such practices will likely require the consent of the data subject. However, the Act provides for several exceptions which political parties could abuse to circumvent this requirement. There are also considerable loopholes that allow open access to voter data in the electoral list as well as the personal data of the members of a rival political party. The efficacy of the Data Protection Act will largely rest on whether the Data Protection Commissioner will interpret it progressively and hold political parties to account.
Highlights
Data-driven campaigning and its attendant consequences on the health of a democracy were initially thought to be the concern of the Global North
The first group relates to the activities of Cambridge Analytica, which had created a detailed profile of Kenyan voters that included key national and local political issues, levels of trust in key politicians, voting behaviours, and preferred information channels (BBC, 2018 March 20)
A second solution that does not involve an overhaul of the existing framework would be for the Independent Electoral and Boundaries Commission (IEBC) to rely on the ground of “unwarranted invasion of the privacy of an individual” (Access to Information Act, s. 6 (1) (d)), under the Access to Information Act to only allow a limited class of persons to access the list such as political parties and candidates though their ability to redact the ID number seems to have been curtailed by the court clearly
Summary
No confounded algorithm or fancy numbercrunching was going to affect Kenya’s ethnic-based politicking. Deploying such tactics here would be an exercise in futility. In the 2013 and 2017 general elections, the major political parties are alleged to have engaged in data-driven campaigning The analysis commences by distinguishing between regular targeting and political micro-targeting. This is followed by a brief overview of justifications in the literature for regulating these practices. The paper analyses whether—and to what extent—the DPA has affected the legality of the methods of targeting and micro-targeting utilised in the previous elections. General Data Protection Regulations (GDPR), and the United Kingdom’s (UK) Data Protection Act (UK DPA) on the other
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