THE ICELANDIC EXPERIMENTS IN DIGITAL DEMOCRACY & CIVIC TECH: 5 LESSONS FOR KENYA TOMORROW (PART II)
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Disclaimer: This article was written in 2016. Its content then does not represent the reality now. Please keep the 2016 context in mind as you read this 2 part series. In addition, the views or opinions of the author on a number of issues in 2016 may not hold true in 2021. Part I can be accessed here.
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This section, Part 2, draws out what lessons can be learned about the digital democracy arena, explores areas to improve upon to facilitate tech-driven democratic participation, and makes recommendations for reform.
In Kenya(in 2016) some of the emerging issues which need improving included
· development of a robust policy and legislation environment;
· government violation of user digital rights including data protection and privacy, surveillance and interception, arbitrary blocking and filtering, among others;
· insufficient education i.e. civic education and awareness, e-literacy, and conventional reading and writing proficiency;
· willingness to engage, and follow through to close the feedback loop (both bottom-up and top-down); and
· strengthening the institutional framework.
ICELAND’S LESSONS ON DIGITAL DEMOCRACY:
i. The importance of strategic planning and tactical use of experts:
First off, by opening up the process to everyone, over-participation runs the risk of compromising efficiency and quality — both substantively and procedurally. Curiously enough, Iceland could have learned this lesson from Kenya’s own constitutional review process, which was highly participatory in an endeavor to ensure all stakeholders and ethnic groups were represented. It also aimed to guarantee that the final document was home-grown and would create a sense of ownership. Instead, the inclusion of over 600 drafters incurred huge fiscal costs[i] and logistical challenges. The latter being “difficulties stemming from the need to bargain in order to accommodate interests that were fundamentally at odds and not necessarily concerned with the greater good”. As Makau Mutua has observed, the [Kenyan Constitutional] Review Commission “was too unwieldy and packed with far too many incompetents [and] political lackeys”[ii].
This does not negate the essence of this paper, instead, it illuminates the need for strategic planning. Numerous aspects of the process in Iceland seemed “a little too improvised”[iii], in the sense that neither the procedure nor the sequencing was explained beforehand, it was unclear whether the citizens’ input would be reflected in the final draft without parliamentary review and amendment, and more importantly, the use of untrained people raised all manner of predictable complications.
With regards to the use of laypersons, arguments for the composition of jury pools is instructive. It said that inclusive methods for creating jury pools are designed to increase the diversity of juries selected from it, and that the diversity of viewpoints is the key to the success of the group dynamic of jury decision-making. This applies to public participation too. Legislators and policy makers should seek input from the complete range of those who will be affected by the action as it will enrich the process, albeit elongate it. For example, in Iceland, one of the constitutional provisions which made its way into Article 14 of the final text — a constitutional right to the Internet — had not been contemplated at all before the borgarar (citizens) proposed to entrench it.
Lawyers were then brought in to improve the wording and ensure vocabulary accuracy and compatibility with international treaties, but on several occasions it ended up distorting the drafters’ intent. One commentator lamented that such expert interventions were not only a violation of popular sovereignty, but they objectively worsened the quality of the proposal[iv]. Therefore, the invaluable role of legislative drafters and experts is recognized, and it is accepted that unexpurgated citizen views should be seriously considered, provided the spirit and intent remains intact.
ii. Involvement of users in design of public participation processes:
It is vital that citizens are involved in the design or modelling of normative legal acts which will impact them. This is yet another object lesson which Kenya and others would be loath to ignore when setting up a public participation framework, or even when seeking opinion to identify citizen needs for law or regulation making purposes. To the extent that participatory processes aim to be inclusive and transparent, so must the reasoning behind key design choices[v]. In Iceland, more efforts at justifying design choices ahead of time would have likely increased the quality as well as the legitimacy, legibility, and credibility of the process[vi].
iii. Complement civic tech with traditional public participation methods:
This ties in with two other pertinent, best practices for Kenya to adopt. That is, the need to utilize traditional public participation methodologies (in additional to ICT) such as community forums, deliberative polling, consensus conferences and public hearings, not forgetting tried and true letter writing. The second best practice worth executing is that of not alienating other non-tech-savvy groups such as the elderly. Their input is just as valuable and should be incorporated.
LESSONS FOR KENYA TOMORROW — RECOMMENDATIONS FOR ACTIVATION OF CIVIC TECH IN KENYA:
i. Proposed changes in law, policy and practice
The first port of call would be to urge government agencies and agents to desist from threatening or causing harm to ICT users in Kenya, and infringing upon their right to freedom of the net where they are lawfully exercising said rights. Investigations and prosecution of offences related to online criminal activities should be undertaken in conformity with the provisions of the law, as opposed to adopting practices that undermine free speech and critical opinion[vii].
This also applies to digital activists and online human rights defenders (HRDs): A principal priority suggestion is for the Kenyan authorities is to take a less aggressive stance towards advocates and HRDs. There is a need to be more attentive to the online distress calls of the citizenry, and more accommodating of those whose views are of dissenting persuasion. The right to be heard goes hand in hand with the willingness to listen. It also requires them to act.
Inaction by the authorities even when provided with evidence that a crime has occurred has emboldened the perpetrators which contributes to what a judge at the International Criminal Court (ICC) recently termed as a ‘culture of impunity and political violence’. That there are no consequences for breaking the law is now the norm instead of the aberration.
Catherine Gicheru, an expert on data journalism and civic innovation noted with concern that even though whistleblowing protection is provided in numerous individual laws, there is no single overarching law that provides protection. This lack of protection for whistleblowers is a significant factor inhibiting citizens from speaking out or publicizing evidence of illegality or wrongdoing for fear of retaliation. The Witness Protection Agency is poorly resourced (as of March 2016) and has regrettably proved ineffective. The collapse of the ICC cases which has been largely attributed to the death, coercion, disappearance and outright intimidation of witnesses into recanting their statements has further reinforced citizens’ fears against speaking out.
On the other end of the scale, Iceland has held itself out as a safe haven for freedom of expression. It seeks to protect journalistic freedoms by giving whistleblowers and investigators a place of legal refuge, earning it the moniker ‘the Switzerland of bits’[viii]. It also began the process of tasking a committee of experts to look into the status of online and offline promotion of freedom of expression and information, report on the challenges associated with these rights, and propose recommendations. This is certainly something that Kenya should strive to accomplish. Other initiatives that Kenya can borrow are the: the Icelandic resolution on the protection of user rights which was adopted by the parliament in 2014 and awaits implementation; as well as several bills on whistleblower protection and data retention presented in parliament in March 2015.
There are also statutory provisions that should be revisited. For instance, broad phrases such as ‘misusing communication platform to cause anxiety’ or ‘sending annoying messages’ should be clarified. It will reduce the incidences of frivolous charges being brought against bloggers and social media users, as well as provide certainty and predictability of the law. The circumstances and laws under which individuals can be charged over their online activities are not explicitly defined yet are grounds for taking action against regular users, journalists and bloggers who are expressing legitimate opinion both offline and online, thus frustrating the intentions of the constitution with respect to media and information freedom[ix]. Revisiting the laws will also enable netizens to share information to their networks online. Currently, such clauses make it such that people do not raise or discuss societal concerns for fear of reprisals[x].
When reviewing and amending legislations, enforcement of the rights and responsibilities should strongly be considered. In 2016, recourse to the courts was not available to everyone for alleged violations of their rights. Apart from making access to justice available for online/technology related offences, police as law enforcers should also be trained. This will close the fissure currently experienced due to the lack of information and education on rights-based approach to policing offences related to information communication technologies, such as online bullying. Building the capacity building of state organs and enforcement agencies to understand online freedoms so as to effectively investigate violation cases is paramount in guaranteeing respect and protection of such freedoms[xi].
However, even as we embark on ‘cleaning up’ the offensive clauses, we should ensure not to create even more uncertainty as is the fear of many, should a separate ‘hate speech’ offence find its way into the cybercrimes law. It has been recommended that this issue could be dealt with by way of amending the existing legislation rather than create a separate, unnecessary online offence[xii].
ii. Capacity Building and Bridging the education gap
Building the capacity of the media to uphold journalistic integrity — online and offline — is also an essential element that should be undertaken. Beyond this, capacity building in digital communication
of media, judiciary and legislative drafters on sector specific matters should be conducted.
It should also extend to counties (sub-national governments) in order for them to play a critical role in reducing the ICT capacity gap between citizens and government staff.
Next, it should be noted there is a call for transformative civic education and information about civic tech tools. Citizens need to be educated about their rights and responsibilities that may help to empower them to adopt new technologies, and how they relate to their daily needs to make their work easier[xiii].
Transformative civic education is an approach to learning that moves beyond imparting foundational information on government and governance, towards spurring active citizenship. Drawing from what we know about traditional learning evaluation models[xiv], we can adapt those techniques for our present purposes. We should seek first, to see to it that the participants acquire the intended knowledge, skills and attitudes; second, ascertain whether knowledge transfer has indeed taken place by whether or how participants apply what they have learned; and finally, determine whether the learning outcomes have been achieved, which in this case would be an engaged citizenry. To support and sustain momentum, continued civic education should be conducted.
The bedrock of civic education is relevant, timely and synthesized information. If one took a holistic approach, and went further to explain laws, we might see a diminution of violation of some of the legal provisions mentioned in this paper. For example, a judge in Kenya stated that the “thing that is important today is thorough knowledge of the provisions of the Defamation Act Cap. 36 of the Laws of Kenya. A lot of cases can be settled out of court, or not reach the courts at all if editors of newspapers, authors, publishers or other persons concerned got the proper advice and acted accordingly. I think this is the way forward, looking at the upward trend of awards for libel by the courts.[xv]”
iii. Encourage sustained, constructive two-way engagement
In Kenya, the internet has become part of the political landscape as was noted during the 2013 elections when support was aggressively mobilized through social-media (especially Twitter and Facebook) and interactive blogs, supplementing aspiring leaders’ print and broadcast messaging. The utility of online tools was to publicize their manifestos, plans, objectives and events. Politicians’ social media platforms provide an avenue for citizens to express themselves, and allows said leaders to gain insights on topical issues[xvi]. But as the Kibera youth leader quoted above said, there is no two-way engagement, and more often than not, no responses to citizen concerns are given. Therefore, while politicking is expected, the leaders should use their online presence to respond and react to citizen grievances.
In a poll of citizens to determine if and whether they use online avenues to dialogue with the government and influence decisions that affect their lives, citizens felt that politicians listen more when they hold physical demonstrations, or amplify public outrage via social media. In fact, there is a growing number of young Kenyans have taken to social media to raise critical issues in the government, such as the (mis)use of government funds or the charges of corruption by government officers. After South Africans, Kenyans are the most prolific users of Twitter in the continent, with Kenyans on Twitter (KOT) being the preferred digital community. On the flip side, state officials interviewed felt online citizen engagement was less like dialogue and more “lamenting.” All they felt they heard on their e-platforms were criticisms and opposition to their actions. A researcher in September 2015 who interviewed state officials recounted the interactions had with the respondents: “many of the politicians argued that they do know how to listen, but the problem as one MP put it, is on the part of the public[xvii]”. One very practical suggestion is to encourage constructive engagement, as opposed to using these platforms to voice grievances.
The design of ICT initiatives for improved participatory governance should include the input of citizens who are the intended users. This approach puts the ‘civic’ in ‘civic tech’ at the centre, that is: putting the real people and real communities (civic tech) developers claim to serve when they set out to create tools for public good. This is founded on the belief that building real civic technology, the kind that doesn’t just “solve problems”, but actually allows people to enhance their quality of life and (re)define their relationship with their governments, media, and each other, requires a perspective that prioritizes people above production[xviii].
It would be beneficial to seize the opportunity that exists for linking civil society ICT initiatives with those innovations seen in the commercial and business sphere. Yoking these innovative strategies to support civic tech approaches would be beneficial for all, and would allow the resulting products/institutions to be scaled up to a county level and replicated elsewhere.
On the role of civil society, organized groups should maintain constant scrutiny of the policy and legislative environment to challenge regressive laws/court judgments. She said “organizations should utilize public interest litigation to secure positive precedents. In addition, we should lobby for operationalization of leadership, integrity & transparency provisions in the constitution which address public officer conduct.”
ICTs used in promoting citizen participation should incorporate or encourage physical meetups of the citizens (with other stakeholders) to unpack the governance issues in question. This allows citizens to deepen their understanding and engagement around governance issues faced. It is particularly important taking into account “the strength and prevalence of the oral culture in Africa and the need to preserve and utilize that method of communication[xix]”.
iv. Monitoring, Evaluation, Research and Learning
The design process of ICT initiatives for governance should be comprehensive enough to include implementation and monitoring and evaluation (M&E) plans to assess impact and effectiveness. ICT impact must be studied using both outputs and outcomes and learning must be continual such as tracking paired outcomes with targeted communication plans, to ideally describe any qualitative impacts of relationships[xx]. This will allow implementers to detect areas and devise plans to improve over time. M&E, in addition, could provide insights that are shareable among stakeholders[xxi].
In addition, publicizing lessons learned, best practices and positive impacts of civic engagement are likely to spur continued interaction because they have catalyzed visible results. Citizens are not involved in such exchanges despite the fact that they are the key stakeholders in deliberative governance and democracy. This will hopefully reduce the endemic unwillingness and reluctance of citizens to interact with their leaders.
Building on the innovative and entrepreneurial atmosphere of the ‘Silicon Savannah’, government and civil society actors should support crowd-sourced data for public goods, and explore the potential of harvesting the best of contributions to public problems by such means as social media, crowd-sourcing and coordinated use of mobile platforms as a way to revitalize local democracy[xxii]. Moreover, the wealth of data generated by government ministries, departments and agencies in the form of quarterly and annual reports is underutilized and unsynthesized. To tackle this shortcoming, analysis of government data for public consumption purposes is critical for evidence-based action, and should be prioritized[xxiii].
Research is yet another vital need to ensure sustainability and learning about civic tech. Policy makers should support research that explores why people engage, what would motivate continued interaction with their peers and their leaders, ways in which civic engagement can be institutionalized, et cetera. Moreover, disaggregated data by county, age, gender and technology should be made available for planning and implementation purposes.
v. Infrastructure and Institutions
The myriad, yet ineffectual of institutions in Kenya, with overlapping duties and roles should be evaluated and streamlined. The Prime Minister of Iceland appointed a working group to review the laws, regulations and administrations of regulatory authorities and evaluate how principles of good regulations and practices are met. In September 2014, the feasibility of the merger of four regulatory authorities (the Media Commission, the Post and Telecom Administration, the Icelandic Competition Authority, and the monitoring part of the National Energy Authority) was considered[xxiv]. Ultimately, it was recommended that the Icelandic Media Commission be abolished and the former legal framework be restored. The administrative and supervisory role shall be transferred to the Icelandic Post and Telecom Administration[xxv]. Likewise, Kenya should adopt a similarly practical approach to streamlining the bodies, by merging two or more existing bodies.
In addition, and in the medium term, Kenya (government and private sector) should continue its steadfast investment in infrastructure, and extend it to the rural areas. To tackle the Digital Divide: ICT government agencies should ensure that at the minimum, mobile internet is available in all counties, and that it is relevant to Kenya’s variety of users by availing content that is localized and in a language other than English. With the advent of mobile broadband, which can be rolled out faster and at lower cost than fixed broadband, access should no longer as critical an issue for those in the new service regions[xxvi]. The Parliamentary Assembly of the Council of Europe has cautioned against the pitfalls associated with unequal access: potentially resulting in e-exclusion and e-discrimination[xxvii].
A long-term recommendation would be fully automate government functions to increase efficiency. Case in point is the E-Citizen platform. It has been hyped [xxviii] as a panacea for reducing bureaucracy, addressing the loss or tampering of paper records and corruption within the lands ministry, as one can conduct a land search by inputting the relevant details, and the information sought would be a click away. The reality, however, is that when one presses ‘search’ and puts in a request, a civil servant still physically has to go and fetch the desired information. This still leaves the process open to the problems outlined above. Digitization will help both citizens and the government as it will improve efficiency.
The combined lessons learned from Kenya and Iceland should serve as examples on how others can design and implement e-democracy and civic tech projects that, first, enrich the overall consultation and participation process; second, expand existing and create additional spaces for participation; and lastly, enhance capabilities of various stakeholders to effectively participate in and influence the affairs of their government and communities.
[i] Official government statistics report that the review process cost approximately $88 million (but the total cost of the review process was approximately 6.5 billion Kenyan shillings), and unofficial estimates are as high as $138 million.
[1] Designing a Constitution-Drafting Process: Lessons from Kenya, Alicia L. Bannon, The Yale Law Journal (Vol. 116, №8 (Jun., 2007), pp. 1824–1872)
[iii] Hélène Landemore, an assistant professor of political science at Yale noted that some aspects of the c experiment seemed a little too improvised. She raised some crucial components that were not given adequate thought, such as when the elections to the constitutional assembly were held, it was unclear what would happen once its work was done. Would the Parliament make further revisions to the text? Would there be a binding referendum on it? It is harder for the population to understand and take the process seriously if it seems poorly planned. Similarly, when settling on a design choice like crowdsourcing, resources must be made available accordingly. Though the crowdsourcing moment could have led to a virtuous deliberative feedback loop between the crowd and the Constitutional Council, the latter did not seem to have the time, tools, or training necessary to process carefully the crowd’s input, explain its use of it, let alone return consistent feedback on it to the public.
[iv] Hélène Landemore http://www.slate.com/articles/technology/future_tense/2014/07/five_lessons_from_iceland_s_failed_crowdsourced_constitution_experiment.html
[v] It is, for example, not clear why the National Forum favored aggregative practices of opinion elicitation as opposed to deliberative ones, or why the constitutional assembly included 25 elected members as opposed to, say, a randomly selected 100.
[vi] Hélène Landemore http://www.slate.com/articles/technology/future_tense/2014/07/five_lessons_from_iceland_s_failed_crowdsourced_constitution_experiment.html
[vii] ICT in Governance in Kenya — Policies and Practice, CIPESA, 2015
[viii] http://www.niemanlab.org/2010/02/iceland-aims-to-become-an-offshore-haven-for-journalists-and-leakers/
[ix] The impact of Kenya’s Legal and Institutional Frameworks on Media Freedom, Article 19, 2014
[x] State of Internet Freedoms in East Africa, 2015
[xi] ICT and Governance in East Africa, 2014
[xii] Legal Analysis of the Kenya Cybercrime and Computer Related Crimes Bill, Article 19
[xiii] ICTs and governance: understanding citizen engagement in implementation of e-governance in Kenya’. Gatana Kariuki — Int. J. Electronic Governance, Vol. 7, №3, 2015
[xiv] The Kirkpatrick Learning Evaluation Model
[xv] The impact of Kenya’s Legal and Institutional Frameworks on Media Freedom, Article 19, 2014
[xvi] ICT in Governance in Kenya — Policies and Practice, CIPESA, 2015
[xvii] In addition, bureaucrats acknowledged the need to listen to citizens, they seem to listen to more powerful actors — the telecom industry (important partners in project implementation), donor agencies (who support their initiatives), unions and consumer associations. http://www.makingallvoicescount.org/blog/e-government-platforms-in-kenya-evidence-of-change-or-politics-for-show/
[xviii] Experimental Modes of civic engagement in civic tech: Meeting people where they are, Laurenellen McCann2015
[xix] https://sunlightfoundation.com/blog/2014/10/22/reflections-from-buntwani-strengthening-civic-engagement-through-tech/
[xx] Björn-Sören Gigler, Savita Bailur, and Nicole Anand. 2014. The Loch Ness Model: Can ICTs Bridge the “Accountability Gap”? as quoted in ICT & Civic Engagement, USAID (2015) at http://pdf.usaid.gov/pdf_docs/PA00KRPF.pdf
[xxi] Ibid
[xxii] Dumb Phones, Smart Kids: Impact of ICT & Mobile on Youth Engagement in cities in the Developing World
[xxiv] Freedom of the Net Report for Iceland, 2015 — Freedom House
[xxv] Iceland Government Efficiency Group recommendations to enhance the productivity and efficiency of government management
[xxvi] Internet Society Global Internet Report, 2014
[xxvii] https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17715&lang=en
xxviii In 2016
