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SUGOW & RUTENBERG – Securing Kenya’s Electoral Integrity in the Digital Age: Censorship – The Elephant

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Social media platforms have become increasingly central to democratic processes and civil society in Kenya must therefore remain vigilant of suppression of content online, whether by platforms or governments.
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On 21 October 2021, when faced with protests against the King, the southern African kingdom of Eswatini directed mobile operators based in the country to suspend access to Facebook. This is just one example—out of hundreds—where governments have turned to internet shutdowns as a means of suppressing opposition and stifling organising. At the same time, social media platforms have been accused of suppressing political speech when purportedly enforcing their terms of service. In our first article in this series, we highlighted some of the ways in which Kenyans have used social media platforms for civic participation and grassroots organising. Through these platforms, people across the world have enjoyed the ability to seek information, engage in debate, and drive movements.
The increasing centrality of these platforms to democratic processes such as elections means that the harm posed when access is disrupted is often immeasurable, though several researchers have attempted to quantify this harm qualitatively through citizens’ experiences, and quantitatively through economic impact. The Centre for Intellectual Property and Information Technology Law for example, has framed these harms as including increased citizenry backlash, economic losses, and eroded international reputation. In this article, we discuss the intentional suppression of political speech online by social media platforms and by governments, detailing the ways in which these manifest, and the dangers they pose to electoral integrity.
Almost exactly a year prior to the Kingdom of Eswatini’s blocking of Facebook, there were widespread protests in Nigeria over the Special-Anti Robbery Squad (SARS). Fed up with the corruption and brutality of SARS officers, citizens took to the streets. During these protests, it was reported that the army used live ammunition, resulting in the death of some of the protestors. When these reports were shared, Instagram’s algorithms flagged them as ‘potentially false’, further inflaming sentiments around the entire ordeal and leading Instagram to issue an apology.
This occurrence is but one example of the challenges facing content moderation by these platforms in Africa, and by extension the Global South. These platforms are empowered to enforce their Terms of Service (ToS) which, often, contain guidelines that restrict the spread of false information and hate speech. When detected, such content is either taken down entirely or downranked. However, enforcing these restrictions is often difficult. For one, due to the sheer amount of content shared, these platforms often use artificial intelligence to flag violations of their ToS.
These technologies are often trained on datasets that are not representative of the lived experience of Africans and as such, are biased from the outset. These biases manifest in erroneous actions such as Instagram’s response to the #EndSARS protests. Platforms such as Facebook are aware of these shortcomings; recently leaked internal documents revealed that Facebook’s artificial intelligence moderation tools were flagging cockfights as car crashes, and mass shootings as either paintball games or a carwash. While these platforms also have human reviewers to verify some of the actions taken by the moderation tools, these humans are almost always blind to the specific contexts and nuances of the societies to which the content they moderate relates.
Alive to these concerns, Facebook pledged to hire 100 moderators and trusted flaggers to cover every African market. It is not clear how many have been hired so far. It also remains unclear whether this would have a noteworthy impact as these “African markets” can further be segmented into thousands of language groups, all making use of these social media platforms, complicating moderation efforts. Erroneous flags that result in either the taking down or downranking of content have undermined efforts to raise awareness around injustice or to organise movements, as was the case in Tunisia when Facebook took down accounts belonging to 60 activists. These decisions are often consequential from a political perspective and take place in relative opacity.
These technologies are often trained on datasets that are not representative of the lived experience of Africans and as such, are biased from the outset.
Aside from errors in content moderation, social media platforms sometimes intentionally engage in suppression of speech at the direction of governments. Through transparency reports, Facebook and Twitter disclose instances where they have been requested by governments to either take down or restrict access to content based on such content violating local laws. With the enactment of laws criminalising the spread of subjectively defined false information (laws which Matt Bailey calls “fake censorship”), these platforms are effectively co-opted into censoring political speech which governments deem unfavourable.
During the 2017 elections, Facebook reported that it restricted access to 13 items that allegedly violated hate speech and election laws in Kenya. The specific content is not available on the transparency report, but this highlights the government’s ability to invoke local law to require these platforms to take down content. On the face of it, such an arrangement is understandable as governments are better placed to assess compliance with their laws. However, it becomes an issue where laws were enacted with a view to shrinking the civic space and suppressing any activism in the face of authoritarian tendencies.
In our previous article, we highlighted the subjective and selective application of Kenya’s Computer Misuse and Cybercrimes Act. Applied to this context, if the government were to request a takedown based on this law, Facebook or Twitter would simply comply, furthering the potential for suppression. While these platforms make it clear that they screen these requests prior to complying, the growing use of local laws which impose liability on platforms for failure to comply would incentivise them to err on the side of caution and blindly comply with requests. Turkey for example recently enacted a law that requires platforms to respond to complaints within 48 hours or face fines of up to US$700,000. That being said, some platforms such as Twitter have made it clear that where the complained of content does not violate its ToS, it would only restrict access in the jurisdiction with the law in place.
There is a discernible trend towards bringing these platforms under the control of governments. India recently withdrew safe harbour protections from Twitter due to its taking down of content associated with the ruling party. It also came under fire for allowing content critical of the government; the police raided Twitter’s offices in Delhi. India enacted new guidelines requiring platforms to appoint local representatives to handle complaints. Following these rules, the Indian government’s takedown requests have increased, often targeting content that is critical of the government or the ruling party. The co-opting of these platforms by governments or public authorities may sometimes put lives at risk. Recently, the Facebook Oversight Board recommended an independent investigation into Facebook’s suppression of pro-Palestine content at the request of the Israeli government. According to activists, this suppression sometimes puts lives in danger as they were unable to share information regarding the state of security at the time.
In some instances, when unable to lawfully secure the takedown of content on platforms, governments resort to internet shutdowns to quell opposition. In the past decade, it is estimated that several governments have either wholly or partially shut down the internet a total of 850 times, with 90 per cent of these instances taking place in the last 5 years. These shutdowns occur on a spectrum, from blocking specific websites such as social media platforms, to completely shutting down access to the internet for entire regions. A report by Jigsaw and Access Now documented some of the most recent internet shutdowns such as by Uganda earlier this year, and Tanzania late last year.
These shutdowns are easier to implement where there are few internet service providers operating in a country, and where the government maintains significant control over them. These shutdowns have untold political and economic consequences (due to the informal sector’s use of social networks such as WhatsApp to trade). In Myanmar for example, it is estimated that approximately 2.5 per cent of the country’s Gross Domestic Product was lost due to a partial internet shutdown – the military junta blocked access to Facebook during the day, and wholly shut down the internet every night for 72 consecutive nights. It must however be noted that using economic statistics as a measure of impact is not highly accurate in several African countries due to informal and unreported economic activity.
Erroneous flags that result in either the taking down or downranking of content have undermined efforts to raise awareness around injustice or to organise movements.
While these shutdowns are often linked to temporal events such as elections, they may sometimes persist indefinitely. In June 2021, Nigeria indefinitely banned Twitter after it enforced its ToS against President Buhari and deleted one of his tweets for violating its policies. Since the ban, researchers have estimated that Nigeria has lost US$366 million due to a decrease in economic activity which ordinarily took place through the platform. To lift the ban, Nigeria is requiring Twitter to comply with a raft of measures such as registration in Nigeria, payment of local taxes, and appointing a representative. In the past two years alone, internet shutdowns have been reported in Algeria, Burundi, Eswatini, Ethiopia, Guinea, Mali, Sudan, Togo, Tanzania, Uganda, Zambia, and Zimbabwe. Bearing in mind the persisting pandemic and the centrality of digital interactions during this time, these shutdowns have set a dangerous precedent, both for public health and for political speech.
Earlier this year, Kenya’s Cabinet Secretary for Interior and Coordination of National Government publicly assured Kenyans that the government would not shut down the internet. A few months later, he cast doubts over the strength of this assurance by stating that the government would not hesitate to shut down mainstream media involved in disseminating harmful content by invoking the Public Order Act. For this reason, such assurances ought not to detract from ongoing efforts to remain vigilant of suppression of content online, whether by platforms or governments. Organisations such as Access Now and the Open Observatory of Network Interference (OONI) have been tracking internet shutdown trends across the world and raising awareness – Access Now through its #KeepItOn program and OONI through its publicly accessible probe and shutdown reports. These efforts ought to be amplified by civil society in Kenya and could be plugged into by regulators such as the Communications Authority (CA) to demonstrate the goodwill in the Cabinet Secretary’s commitment not to shut down the internet. It would also be prudent for the CA to commit to transparency in any takedown requests they make to social media platforms. On their part, these platforms should also work with the electoral body—the IEBC—and the CA to make transparent the moderation tools they intend to deploy in Kenya during the elections. Such a collaboration ought to also involve civil society so as to boost accountability.

This is the fourth 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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Abdulmalik is a legal researcher and consultant who holds a law degree from Strathmore University. His research interests include content moderation, intermediary liability and more broadly, the nexus of social media and democracy. Abdulmalik has published academic articles in peer reviewed journals, and has previously consulted for the World Bank. He currently serves as a non-permanent member of the Strathmore Law Clinic’s Oversight Board. Dr. Isaac Rutenberg is a Senior Lecturer and the Director of the Centre for Intellectual Property and Information Technology Law at Strathmore Law School in Nairobi, Kenya. He is also an Associate Member of the Center for Law, Technology, and Society at the University of Ottawa, Canada.
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Our contradictions point to a country that is deeply conflicted about itself. We are inauthentic and sadistic, bent on exerting and affirming the power of the colonial state, no matter what it does to us.
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I vividly remember an incident that occurred when I was a graduate student in the US. We were having this conversation with an American on campus, when I animatedly said, “I’m so loving this!” The American then saw fit to correct my English, and promptly told me, “In English, we don’t say ‘I am so loving.’ We say ‘I love.’”
This ignorant American, in his own country, seemed unaware that “I’m lovin’ it” was a phrase that had been popularized by the Justin Timberlake song “I’m lovin’ it” and, in a classic manipulation of culture by corporations, had become the tagline for McDonalds commercials. I said, “I’m so loving” very aware of that dynamic. I was also teaching undergraduate American students. They said this all the time and I was simply borrowing a phrase from them.
This American knew I was a graduate student and I must have had a fairly decent command of English, but that did not count. His boldness came from his assumption that, listening to my Kenyan accent, I couldn’t possibly know English well enough to play around with the language. He needed to remind me that when it comes to the English language, he ranks higher than I do.
The incident is an illustration of how purist notions of language and grammar are not innocent of certain social assumptions, and most of all, innocent of power. What language is considered “correct” depends not simply about what people say, but also about our assumptions about a person and their social status.
This complexity of language is exemplified in Health Cabinet Secretary Mutahi Kagwe’s recent humiliation of Kenyan nurses who purportedly failed the English language test necessary for them to work in the UK. The contradictions of the whole incident are mind-boggling. All the social dynamics of language were forgotten when the media, true to its hatred of educated Kenyans, celebrated that Kenyan nurses had failed the entry English test requirements.
Unlike what Kenyans are celebrating, Kagwe did not suggest that the nurses could not speak English. His beef was that they did not prepare for the tests well enough. In fact, he added that the role of the health workers is to prepare for the exams, and at no point did he express concern about the ability of the nurses to communicate in English.
But more troubling is that as the media and Kenyans sadistically celebrate the nurses’ failure, they forget how twisted and insidious the context of the conversation is. The context is the Cabinet Secretary for Health, whose job is to take care of Kenyans’ health, in a government that is supposed to provide work opportunities for Kenyans, telling the clinical officers that he will negotiate and sell their labour to countries abroad. And the conference attendees accepting this logic and clapping.
As Mkawasi Hall recently said in a conversation with me on this matter, the idea of governments looking for foreign employers for their own citizens comes from a very dark and troubling place, where the government abandons its contract with the citizens and chooses instead to sell them to foreigners as labour.
The idea of governments looking for foreign employers for their own citizens comes from a very dark and troubling place.
This idea is even worse than what Fanon predicted when he said that the African comprador elite would sell their beaches and landscapes to European tourists and make their countries the brothel of Europe. In this case, we are returning to the Middle Passage four centuries ago where African chiefs kidnapped and sold people into slavery. To add insult to injury, our current chiefs have not learned that it is not money, but African labour, that made the West rich, and they are astonishingly ignorant of Walter Rodney’s argument that the export of African labour underdeveloped, rather than developed, Africa. It defies imagination that the African bourgeoisie can think that the export of African labour will develop Africa because the bourgeoisie are English-speaking, suit-wearing Africans getting dollars from remittances rather than the chiefs receiving guns and cloth of four centuries ago.
Reading Kagwe’s words in print, without the performance, makes the cruelty and absurdity more visible. This is what Kagwe said:
The quality of service that we provide must be at the highest standard possible. Equal to anywhere on earth. If you do that, it will be possible for us to make Kenya a health tourism destination. And if that happens, you (pointing at the audience) will benefit.
As far as I am concerned, we will continue to negotiate for you, and ensure that you work in both Europe and the Middle East. We also have negotiations going on with the Middle Eastern region, and THEY NEED YOU PEOPLE (Kagwe’s emphasis). They need you people (audience applause) and therefore you must make sure that you go there.
But in order for that to happen, we have got to make sure that the standard of our training is one that is universal. . . . Let me tell you what has happened. And this is the truth.
When we test, because there are certain tests that one has to do, depending on the region in the world that you are going to . . . for instance, the ones who are going to England have got to do tests in English, and they have got to do tests I think in computers. Our failure rate, particularly in English, is extremely high (audience laughter). We sent 300 people to do the English exams. Ten passed (Audience laughter and whistling). Ten.
So I am challenging you that this is going to happen. We are going to negotiate, yes, but you are going to have to pass the exams. Not me. You (audience laughter). So when we do those exams, let’s prepare ourselves. Let’s set the standards, so that we are sure that there is no exam anywhere on earth, that a clinical officer training in Kenya can fail.
And therefore when we talk about technologies, when we talk about the future, we need to prepare ourselves to be in that space.
It is clear that Kagwe does not care for the English communication skills of Kenyans. He cares that they pass the tests. That the media and their Kenyan adherents do not see this distinction between communicating in English and passing tests in English is baffling, given that the same people vilified 8.4.4 and praised the Competency Based Curriculum for doing away with exam obsession. Mark you, this saga comes in the week where KICD has announced the assessments of Grades 4 and 5, and Kenyans are responding with wishes of good luck to the children, despite the repeated claims that the assessments are not examinations.
So the Kenyans saying that nurses need to pass English tests to prove they can work in English are contradicting themselves. They want to equate passing tests to ability to work, yet, 1) they lament about the obsession with exams, and 2) they do not want to listen to the fact that most educationists agree that passing tests makes you a good test taker and says little about your skill in the work place.
Now let’s go to the tests themselves. Kenyan media is mocking nurses based on information from a generic website calling itself SCL Online that claims that the tests are mapped “against the Common European Framework of Reference used to describe language ability.”
First, this SLC Online is not an official examinations body. The media has not done the homework of verifying that this so-called test was the one administered to the nurses. Second, the Common European Framework is for European countries where citizens speak another European language as their first language. In other words, the framework is for a European French speaker or German speaker seeking to work in the UK, or for a European English speaker seeking to work in Spain or in Holland. Those standards do not take into account former colonies where European languages are still imposed through the education system and exist in a coercive relationship with local African languages. So testing Africans from English-speaking Africa using European standards does not gauge the English language competence of Africans.
Let’s dig further into the abuse. According to Kenyan media reports, “nurses had 20 minutes to complete 60 multiple choice questions,” and some are listed here:
First, the structure of the questions is misleading and confusing, because one can put an infinite number of English words in the blanks that can correctly complete the sentences. Question 4, for example, does not capture the Kenyanized version of questions in English. A normal Kenyan expression would be “Tom works where?” It may not be the way English natives would ask the question, but heck it works. An English speaker who knows that the Kenyan is a foreigner would not have trouble understanding what the Kenyan is asking.
Unless, of course, the English patient, like my American interlocutor, is hostile to foreigners and is trying to prove a point about ownership and power. And we do know that in the post-Brexit, COVID anti-vaxxers English empire, many English subjects of Her Majesty are hostile to healthcare workers, whether they are White and English or not.
Testing Africans from English-speaking Africa using European standards does not gauge the English language competence of Africans.
When I saw question 5, my instinct was to fill the blank with the word “drink”, only to realize that the task is to choose the correct negation of the verb “to like”. This question is abusive, because before correctly answering the question, one has to realize that the question is about negation, rather than about the verb “to like”. I can categorically say that this question does not test language competence. This test did not need knowledge of English as much as practice at test-taking. Both Kagwe and the nurses’ unions are agreed that the issue is preparing for the tests, not nurses’ language skills.
My next point about this sadistic fascination with Kenyan nurses failing English exams is related to the fact that Kenya is a country where people will pontificate about African languages and fake laments about colonial languages. Why should we accept to have a colonial power sneering at our competence in English? As many sane Kenyans have pointed out, when Cuban doctors were brought to work in Kenya, they were not tested for their competence in Kiswahili. In fact, the same media enjoying the problems of Kenyan nurses was very generous in their reports of Cuban doctors also learning Kenyan languages. Why can’t we demand such consideration of the UK, since we teach in their language?
My last point on language learning comes from my own expertise in teaching French as a foreign language. There has been a debate in language teaching circles about whether to train people to speak a foreign language correctly, or to train them to communicate. About two decades ago, there was a feeling that the insistence on direct translation and correct grammar in foreign language teaching did not make learners competent in communication when speaking the language in the real world.
Speakers of a language also do not necessarily speak the language in the grammatically correct way. We should know this because of how Kenyan speakers of Kiswahili mix up their ngeli, for instance saying “kitabu yake” instead of “kitabu chake”. In front of Tanzanians who take Kiswahili seriously, a Kenyan will concede that they do not speak Kiswahili well. But the same Kenyan would probably laugh at a European who speaks Kiswahili using the correct grammatical form, saying that the European does not speak Kiswahili like a Kenyan.
In the post-Brexit, COVID anti-vaxxers English empire, many English subjects of Her Majesty are hostile to healthcare workers, whether they are White and English or not.
On the other hand, language purists also pointed out that it is difficult to communicate when you do not respect the basic language rules. What this debate meant for us as teachers is that we had to strike a balance between torturing students with grammar and getting them to communicate. For some grammatical errors, it takes time for a speaker to consistently use the correct grammatical form, even though they may know the correct one. For instance, a common error we see in Kenya is the mixing up of gender pronouns in English. And the reason for this is simple: Kenyan languages don’t have a gender distinction in pronouns. The English have he-she, in our languages we just have “anakunywa maji” for both people and animals. Are we going to humiliate Kenyan speakers because they got a pronoun wrong? Rules of grammar are dependent on many social factors besides the ability to correctly take a test.
Finally, it seems absurd that, with the pronouncements by the private sector, politicians and even Education Cabinet Secretaries that Kenya is wasting too many resources on the arts, Kenyans should be concerned about the language skills of scientists. Where exactly do we want Kenyan nurses to perfect their English, if in the same breath we are saying that the arts should not be taught? Or do we want to blame parents for not teaching their children English, now that CBC makes parents cover up for the faults of the education system?
The fact that Kenyans have been quick to enjoy the humiliation of nurses, sold off by their own government to a former colonial power, despite all their proclamations of “titi la mama li tamu”, shows that we are dealing with deep cognitive dissonance and sadism when it comes to examinations and language. We make formulaic praises of local languages, we make formulaic laments about obsession with exams, but as soon as a Cabinet Secretary faults Kenyan nurses for failing English tests, we rejoice and sing about quality, competence and the failure of the education system.
Where exactly do we want Kenyan nurses to perfect their English, if in the same breath we are saying that the arts should not be taught?
These contradictions point to a country that is deeply conflicted about itself. We Kenyans are inauthentic and sadistic. We care less for who we actually are and prefer to stick to a make-believe narrative about ourselves, a narrative that is based on fake websites and international (read Anglo-American) recognition. Like my American interlocutor, we are deeply embedded in exerting and affirming the power of the colonial state, no matter what it does to us. We are completely hostile to analyzing power, so we prefer technical explanations and are hostile to social analysis. We lack our own Kenyan narratives about ourselves and keep measuring ourselves by the narratives of the UK and the US. This situation is completely violent, and it shows up in the rise of domestic violence, suicide and mental illness.
We need to abandon our narrative of Kenya as an “island of peace in a sea of turmoil”, and accept that we need healing from this violence that we have pushed underground into our abusive relationships in our private spaces. Other African countries may have wars with weapons against flesh and blood in the battlefields, but in Kenya, our battle is against our soul. And if we don’t treat it urgently, in a not so distant future we will be turning the violence, of which the police are already doing a dress rehearsal, into a fully-fledged war between citizens. It’s time that we Kenyans faced up to our reality of who we are to heal ourselves of our contradictions.
Thousands of old refrigerators, freezers and air conditioners containing hazardous substances are finding their way into the country, putting the lives of Kenyans at risk and contributing heavily to global warming.
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On a cold Friday afternoon in July, Wambui is standing in the doorway of her roadside shop scrolling on her tablet. The street outside is empty. A woman wrapped in a Maasai shawl sits in a white plastic chair inside the shop. In front of her are plastic toys, vacuum cleaners, and electronic cutting equipment. A CCTV camera is mounted in the ceiling.
The shop is on a busy street in Ngara, Nairobi, and as I approach, Wambui calls to me to have a look at her wares.
“UK fridges are of high quality,” says the shopkeeper. A small refrigerator with no brand name is going for KSh20,000. “But I’ll sell it to you for KSh18,000. It is the best I can do,” she says.
Wambui has been in the business of selling imported second-hand appliances for about a decade. She says it is impossible to recall the number of cooling appliances she has sold, all imported from the UK through a middleman.
Inside the freezer compartment of one of the fridges are phone numbers in blue; 0870 is a premium help number for Domestic and General, a repair company in the United Kingdom, 0121 is a Birmingham number for spares. Birmingham is the United Kingdom’s second largest city.
Despite being a signatory to international treaties regulating and banning the dumping of damaged and end-of-life electronics, Kenya still imports large quantities of electronic and electrical goods that are considered too inefficient to be sold in the country of origin. The appliances enter the country legally and a tax is paid to customs for their clearance.
Nairobi, Mombasa and Eldoret have thriving second-hand markets for cooling appliances, numerous repair shops and dealers in scrap. I visited some 20 shops, the majority of which were selling appliances from the United Kingdom while others were trading in appliances from Germany, United States, India, and even Sweden in one case.
Nearly all the shops have an online presence, either on Facebook, on Instagram, Pigiame.co.ke, and Jiji.co.ke, while some use WhatsApp groups to post photos of appliances and their prices.
But this trade in obsolete and inefficient second-hand cooling appliances that are harmful to the climate is not regulated. In effect, Kenya lacks a proper e-waste law and does not have the capacity to manage hazardous substances from cooling appliances that have reached the end of their life. An Electronic Waste Bill was formulated in 2013 but was never passed into law.
“Heavy metals like mercury, zinc, cadmium are harmful when they come into contact with the human body or natural resources like water,” says Boniface Mbithi, the Chief Executive Officer of WEEE Centre, an e-waste recycling company. “When plants absorb water that is already contaminated with heavy metals, and people eat these plants, [this] causes cancer, kidney failure, or even leads to mental disorders.”
This trade in obsolete and inefficient second-hand cooling appliances that are harmful to the climate is not regulated.
Tony, a fridge repairman, sells fridge compressors and freezers from Germany and the United Kingdom. He cannot afford direct shipments like Wambui but he has his way of getting around that obstacle; sourcing his goods from towns like Mandera and Garissa that border Ethiopia is his best alternative. He is unaware that old, inefficient refrigerators can leak harmful gases into the atmosphere during repair.
“I have to check if they are working before they are released into the market. Some come broken. I repair them, refill the gas, and change the compressor,” Tony said. But despite his best efforts, not all appliances are reparable. Those, Tony says, are sold as scrap in the informal recycling sector.
Unaware of the harm refrigerants can cause, scrap dealers release the gases into the atmosphere as they try to recover valuable components from the appliances, contributing to the depletion of the ozone layer and to climate change.
Brian Waswala Olewe, an environmental education specialist at Maasai Mara University, notes, “Improper disposal of the refrigerant into the environment destroys air quality and affects health. . . . Freon, an odourless gas, cuts off oxygen supply to organs and cells and leads to cardiac arrest and death when deeply inhaled.”
Yet, Kenya does not have accurate data on imports of cooling appliances, especially refrigerators and air conditioners. The Customs Department of the Kenya Revenue Authority claims that it does not have specific records of the second-hand cooling appliances entering the country because most imports of these electronics come in consignments together with other goods.
Although Kenya is a signatory to the Montreal Protocol – an international treaty to protect the ozone layer by phasing out the production of numerous substances that are responsible for ozone depletion, such as hydrochlorofluorocarbons (HCFCs) and Chlorofluorocarbons (CFCs) which may be contained in cooling appliances – these refrigerants are still finding their way into the country.
A common trend in the Kenyan second-hand market is the sale of electronics without appliance specifications, making it impossible for consumers to determine the quality of the products they are buying. Without these details, it was impossible to identify the refrigerants present (the compounds that provide refrigeration in air conditioners and fridges) in the appliances sold at Hoist Refrigeration Services, a major dealership in Utawala, along the Eastern Bypass in Nairobi.
However, investigations show that the presence of R134a, a hydrofluorocarbon (HFC) refrigerant is rife. Although R134a does not pose a threat to the ozone layer because it does not contain chlorine, it is still a potent greenhouse gas with a very high potential to cause global warming and its production is being phased out under Kigali Amendment to the Montreal Protocol.
“We call it an Ex-UK fridge,” explains a saleswoman who is clearly ignorant of the chemical makeup of the electronics on display at Hoist Refrigeration Services. “I have sold so many ex-UK fridges and have never had a complaint about the energy consumption,” the seller said. But contrary to the seller’s claims, a UNEP report on energy efficiency standards states that Kenyans spend an additional US$50 to US$100 on electricity every year because of using obsolete and inefficient second-hand equipment and appliances.
An environmental dumping report released in 2020 by the environmental campaign group CLASP and the Institute for Governance and Sustainable Development revealed that the air conditioners sold in Kenya contain banned and environmentally harmful substances, with 37 per cent not meeting energy efficiency ratings above 3.0 W/W, a common standard around the world.
According to the report, Kenya imported between 30,000 to 40,000 air conditioners, of which 27 per cent contained R-22 (Freon), a refrigerant that contributes to the depletion of the ozone layer and is being phased out; 4 per cent contained R-32, a refrigerant that contributes highly to global warming; and 69 per cent contained R410a. (One kilogram of this refrigerant has the same greenhouse impact as two tonnes of carbon dioxide.)
The obsolete and harmful refrigerants and appliances were imported from China, Malaysia, Thailand and India.
Tad Ferris, Senior Counsel for the Institute for Governance and Sustainable Development and lead author of the joint report, said the units are “energy vampires”, sucking up vital energy needed to recover from the pandemic and the economic slowdown, and inflating consumer spending on electricity bills.
Kenyans spend an additional US$50 to US$100 on electricity every year because of using obsolete and inefficient second-hand equipment and appliances.
However, the Energy and Petroleum Regulatory Authority (EPRA) has denied the existence of electronics without labels in the market. In an email response EPRA, which is responsible for monitoring and labelling of quality standards and energy performance of electronic equipment in Kenya, said, “The Authority does compliance inspections on a monthly basis across the country and has not seen any household refrigeration appliances and split-type non-ducted air conditioners lacking labels.” The email further said, “not all cooling appliances are governed by the standards and labelling scheme.”
In Kenya, the energy efficiency label is a red and green tag that awards a maximum of five stars on electronics and electrical appliances such as air conditioners and refrigerators. Minimum Energy Performance Standards are outlined in KS 2464: 2020 by the Kenya Bureau of Standards (KEBS), the country’s quality and standards body. To enter the market, appliances must be inspected and cleared by KEBS and other enforcing agencies, including the National Environment Management Authority (NEMA) and Customs.
The Energy (Appliances’ Energy Performance and Labelling) Regulations were introduced in 2016 and promoted by CLASP and the Kenyan government under the Kigali Cooling Efficiency Program (KCEP). However, although Kenya has pledged to reduce greenhouse gas emissions by 32 per cent by 2030 to comply with the Paris Agreement under the revised National Determined Contributions (NDCs), it has yet to ratify the Kigali Amendment to the Montreal protocol that restricts the production, entry and use of HFCs such as R134a.
Not only do second-hand cooling appliances consume more energy and rely mostly on fossil-based energy to power them, they contain refrigerants that have the capacity to warm the atmosphere thousands of times more than carbon dioxide. A Study shows that the cooling appliances industry contributes significantly to climate change and accounts for 10 per cent of global greenhouse gas emissions.
According to Dr Collins Odote, an environmental lawyer and Associate Dean at the Faculty of Law of Nairobi University, for Kenya to reduce greenhouse emissions and combat climate change, the country must eliminate the importation and use of banned substances, reduce reliance on fossil fuels and use clean energy. Kenya is one of the countries most vulnerable to climate change. The country’s economy depends largely on tourism, agriculture, forestry and fishing, all sectors that are susceptible to climate change, Odote says, adding that the increased temperatures contribute to the loss of billions of shillings through droughts, famine, floods and human displacement.
In order to get a sense of how these operations run under the radar of the authorities, I presented myself to some of the dealers as a prospective player in the business. It turns out that for bulk imports, which are cheaper, a contact — often a relative — in the exporting country is required.
Moreover, money to bribe your way out of the port is a necessity some said, and there were allegations that not bribing certain officials could result in clearance delays or impounded goods.
One of the dealers was open to doing business with me against payment of KSh10,000 for a connection to a middleman based in the UK. The deal didn’t go through, however, as a few days later, the middleman declined.
The obsolete and harmful refrigerants and appliances were imported from China, Malaysia, Thailand and India.
Experts say that rich countries are dumping e-waste in developing countries such as Kenya under the guise of exporting second-hand appliances. Exporting e-waste, non-functioning or near-end-of-life, or environmentally harmful refrigerants is a criminal act under the Basel Convention and the European Union Waste Shipment Regulation.
Yet according to a United Nations University study of transboundary movements of used and waste electronic and electrical equipment (UEEE), between 2008 and 2013, 184 tonnes of used freezers and fridges worth €1.5 million were exported to Eastern African countries, including Kenya.The study analysed EU exports of second-hand refrigerators, freezers, laptops and desktop computers considered as waste using trade statistics from the EU COMEXT database. The analysis revealed that most exports came from Germany and Great Britain. The study did not capture data on electronics exported unconventionally and therefore the number of cooling appliances could be higher.
This indiscriminate dumping of e-waste from developed countries is exacerbating the problem of e-waste management in Kenya where just one per cent of the 51.3 tonnes of e-waste generated domestically is properly managed and recycled while the rest is discarded carelessly in dumpsites and in rivers, incinerated, thrown into pit latrines or left in homes.
Speaking in an interview, Dr Ayub Macharia, Director of Environmental Education in the Ministry of Environment said, “Kenya is a victim of illegal movement of e-waste from developed countries.”
To curb dumping of e-waste in Kenya, Dr Macharia declared a ban on the importation of second-hand electronic devices starting January 2020. But the ban mainly affected old cell phones, computers and laptops sent by donors to schools and institutions and not obsolete cooling appliances.
Dandora is Kenya’s fourth largest slum and home to the biggest dumpsite in Kenya. It is high noon but the sky here is grey from the swirls of smoke rising from burning waste.
Kevin, a scrap dealer, sits in front of a shack constructed from rusty corrugated iron sheets held together with cable and wire mesh. The middle-aged man agrees to divulge the secrets of his business anonymously.
“A client who imports sells me the broken ones. I get ex-UK, Japan and German-made appliances,” Kevin says. “I remove the copper and sell to jewellers or I take the copper to industrial Area, Mlolongo or Cabanas, to be exported to China.”
Kenya does not mine copper but the copper collected at scrapyards like this one is exported to countries like China and the UK, generating significant revenues for the country.
Kevin says he is just a tiny fish in the pond that is Kenya’s copper export market; politically connected people run the big deals. Security operatives visit his shop on a daily basis to collect bribes; he has secretly stashed away a large amount of copper in a storeroom somewhere to avoid exploitation from corrupt “CID” officers.
Utachukua dawa? (Will you buy copper?) ,” an e-waste scavenger asks Kevin.
The copper trade is flourishing despite the harm caused to the environment and people by the release of refrigerants into the air. Kevin doesn’t have a degassing machine; he doesn’t see the need for one. He leaks refrigerants directly into the atmosphere as he recovers valuables like copper or steel.
One of the dealers was open to doing business with me against payment of KSh10,000 for a connection to a middleman based in the UK.
“There is no harm. The gases don’t have odour,” an ignorant Kevin says, adding, “That is a scientific theory. Even if it had, you cannot compare such pollution with one caused by a motorcycle.”
Kenya does not mine copper, so Kevin cannot get a licence to trade in the mineral. But the illegal trading, the harassment from corrupt government officials and the information that refrigerants cause harm to people and to the climate have not deterred him. Kevin says he’s already teaching his son the business.
Utachukua dawa?” (Will you buy copper?), another waste scavenger asks Kevin.
This new business deal brings our chat to an end.
In another area of the dumpsite, James is sitting in his wood and corrugated iron shanty extracting copper from a fridge using a hammer. Around him are sacks containing various bits of scrap. To extract the copper from the appliances, the scavengers around Dandora use crude equipment, exposing other heavy metals and releasing gases into the air in the process. They complain of chest pains that they say are caused by the dark smoke emanating from the dumpsite.
James says he already has KSh200,000 worth of copper in a secret storeroom. The scrap copper is from fridges, construction sites and other sources. He hopes to collect KSh1,000,000 million worth of copper and maybe sell it by the end of the year. The copper will be exported to the United Kingdom, he says.
E-waste scavengers come carrying loads of copper that James weighs and pays for. He cannot tell where the copper brought to him has come from.
As I leave the dumpsite, rain falls from the heavy clouds above. In a few minutes, the water will flow in ditches and find its way into the Nairobi River a few miles away from the slum.
Scientific studies have confirmed the presence of dangerous elements, such as lead, which present a serious hazard to human health at the dumpsite. A study commissioned by UNEP found high levels of heavy metals in the surrounding environment and in the bodies of local residents.
Rich countries are dumping e-waste in developing countries such as Kenya under the guise of exporting second-hand appliances.
Lead and cadmium levels were 13,500 ppm (parts per million) and 1,058 ppm respectively, compared to action levels in the Netherlands of 150 ppm and 5ppm for these heavy metals.  But because of the economic gains that they derive from the business, residents and collectors are not willing to abandon it or to move from the site.
To make matters worse, Kenya “[does] not have regulations that guide in e-waste management and disposal, we have them in draft,” says Dr Catherine Mbaisi, acting deputy director at the National Environment Management Authority (NEMA).
This means that influxes of obsolete cooling appliances through porous borders will continue to flood the market. According to Dr Mbaisi, the Ministry of Environment has formulated Extended Producer Responsibility Regulations that will render the manufacturer responsible for the entire life cycle of a product including a take-back scheme, recycling, and final disposal. She hopes the bill will be enacted.
Controlled Substances Regulations 2020 have also been formulated but have yet to be enacted. The regulations will promote the use of ozone-friendly substances and products, and ensure the elimination of those that deplete the ozone layer. They need to be urgently enacted because lack of regulation and the lax control of energy-hungry, toxic goods is putting Kenyan lives at risk and harming the environment.

This article was developed with the support of the Money Trail Project. Additional research by Leslie Olonyi
A second leak from the Sixth Report of the UN panel of experts, originally obtained by CTXT, clearly states that the only way to avoid climate collapse is to move away from an economic model based on perpetual growth.
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A leaked draft of the third part of the upcoming IPCC report establishes that we must move away from the current capitalist model to avoid exceeding planetary limits. It also confirms that, as stated in the article published by CTXT on August 7, “Greenhouse gas (GHG) emissions must peak in at most four years”. The document also acknowledges that there is little chance of further economic growth.
The signatories of this article, scientists and journalists, have analysed a new part of the Sixth Report, leaked by the scientists’ collective Scientist Rebellion and Extinction Rebellion Spain. The leak clearly shows the vast discrepancies between the scientific community’s understanding of what is needed to achieve an effective and just transition, and the reality of how little has been achieved. Fortunately, among the usual more timid positions, demands that would have been unthinkable not so long ago are beginning to emerge.
Before getting into the analysis, a bit of context is needed. In 1990, the IPCC’s First Assessment Report still stated that “the observed increase [in temperature] may be largely due to natural variability”. This debate was closed in subsequent reports. However, in case there was still any doubt, the analysis of Group I of the Sixth Report – now official – has eliminated any uncertainty. It removes any possibility of retorts from climate denialists, who have long been amply showered with money by those who had the most to lose — the fossil fuel lobbies. The first question to solve a mystery is usually the classic Cui Bono (Who benefits?).
The underlying question now is, how do we ensure that the necessary transition is perceived as a benefit and not as a difficulty? The leaked report confirms that there is no other possibility than giving up indefinite growth. The transition has to take into account the cultural and historical differences in emissions between countries, and the differences between the rural and urban world, so as not to benefit one over the other, and above all the tremendous and growing economic inequalities between the increasingly poor and the increasingly obscenely rich. Either these three dichotomies are addressed, or the transition will have more enemies than supporters and will sabotage itself. The draft reads: “Lessons from experimental economics show that people may not accept measures that are perceived as unfair even if the cost of not accepting them is higher”.
Even if we manage to change course, the scientists warn that “Transitions are not usually smooth and gradual. They can be sudden and disruptive”. They also point out that “the pace of transition can be hindered by the blockage exerted by existing capital, institutions and social norms”, emphasising the importance of inertias. They add, “The centrality of fossil energy in economic development over the past two hundred years raises obvious questions about the possibility of decarbonisation.”
Policies favourable to fossil fuel companies have extracted our common wealth – our air, forests, land… – and put it in the hands of a small minority. Green policies are therefore bound to be redistributive at a time when inequality is soaring. One of the measures proposed to reduce the regressivity of carbon prices is redistributing tax revenues in favour of low and middle income earners. But, as anthropologist Jason Hickel reminds us, “Anything short of a binding cap on fossil fuel extraction, with declining annual targets that will wind down the industry to zero, is just hand-waving.”
This brings us to one of the report’s defining paragraphs, “Some scientists stress that climate change is caused by industrial development, and more specifically, by the nature of social and economic development produced by the nature of capitalist society, which they therefore consider ultimately unsustainable”. Although many have said it before, we don’t think we have ever read anything quite so clarifying in the world’s leading climate report, which adds, “Current emissions are incompatible with the Paris Agreement and immediate and deep cuts are absolutely mandatory.
These targets, which imply a drastic decrease in emissions and therefore also in energy production and material use in the short term, are impossible to achieve with the current model. In addition, Group III links reducing emissions to the fulfilment of the 17 Sustainable Development Goals to be achieved by 2030, as agreed upon by the member states of the United Nations in 2015. Despite the existing contradictions within the 17 SDGs, they include inarguable objectives such as the reduction of inequality and the protection of biodiversity, alongside the more controversial one, within the report itself, of promoting sustainable economic growth.
It is customary practice not to hide scientific debate at the IPCC. In 1990, it still revolved around the causes of climate change, but after 30 fruitless years we now see that the discussion is between positions that still believe we can continue to grow and reduce emissions at the necessary rate, and those who see this as another type of denialism. A more subtle form of it, but one which in the end benefits and is defended by the same people who once questioned the origin of global warming.
The IPCC report accepts that “mitigation and development goals cannot be achieved through incremental changes”. Stubbornly focusing on growth requires massive development of technologies that can reduce greenhouse gas concentrations in the atmosphere, but these CCS (Carbon Capture and Sequestration) technologies are not materialising as predicted.
Ecosystem carbon sinks are in clear decline and climate feedbacks are being triggered which, as is now widely acknowledged, is pushing the Earth past several points of no return and hence into a warmer and more unstable state. The only known way to avoid climate collapse is to move away from the perpetual growth model.
The report highlights that the “organised hypocrisy” identified in international cooperation, where agreements and claims are not matched by actions, is one of the most important barriers to mitigation.
The IPCC is also calling on us not to forget the unimplemented lessons of covid-19. Lessons that should serve to avoid making the same mistakes with climate change, as the analogies are clear and direct. The costs of prevention and preparatory actions are minimal compared to the costs of the impacts caused. Delaying action will lead to increasing costs that will be very difficult to bear.
If action is not taken soon, challenges will increase exponentially, and with unforeseen consequences.
Given the increasingly obvious contradictions in the concept of sustainable development, speaking about any form of development will only be possible by moving away from GDP as a measure of wealth to a less competition-based economic model. The only sustainable development is horizontal, not vertical, and this means reducing inequality.
It is clear that there needs to be a perception that a large majority of us ‘benefit’, or there will be no solution. This is why it is crucial the enormity and scale of the problem are explained for the measures to be understood and certain sacrifices to be seen as benefits. The alternative is to change climate stability forever and aggravate conflicts over resources.
Competition helped species evolve, but, as the brilliant microbiologist Lynn Margulis has shown, it is cooperation that is the key to evolutionary leaps. We now face a precipice drawn by the intersection of the ecological and energy crises. We can have good lives with less energy available (and at the same time, we will have lower workloads), but capitalism will not be able to sustain itself with less energy without completing its mutation into a kind of techno-feudalism. Only if we cooperate, if we understand that we share so much, including an atmosphere that doesn’t know what borders are, can we react and leap far enough to avoid the fall.

This article was first published by Progressive international.
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