Questions on ‘hacking’ mess lead to difficult answers

Saturday August 12 2017

By LUIS FRANCESCHI
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“It is not power that corrupts but fear. Fear of losing power corrupts those who wield it and fear of the scourge of power corrupts those who are subject to it.
The only real prison is fear, and the only real freedom is freedom from fear.”

When Burmese politician, diplomat, and author, Aung San Suu Kyi, said this at her Freedom from Fear speech in 1990, she was under house arrest by the directorship of a military junta which had taken over power in her country. She spent more than 15 years under unlawful arrest.

Suu Kyi was a threat. The military dictators feared her, they feared losing power.

Suu Kyi spoke of four triggers of corruption: desire, revenge, ignorance and fear. Of these four, the latter one, fear, is the worst.

Fear not only “stifles and slowly destroys all sense of right and wrong, it so often lies at the root of the other three kinds of corruption.”

Suu Kyi has been a primary victim of injustice, imprisonment, abuses and revenge. She bore all this with her head high and with great hope in justice. She never called for violence. Like Gandhi, her role model, she believed in the power of truth.

She was released in 2010 and since 2012 she resumed her political career to become now the first State Counsellor of Myanmar and Minister of Foreign Affairs. She never fought for her own power, and she was awarded the Nobel Peace Prize.

LESSONS FROM SUU KYI

The worst kind of corruption is fear of losing the power we hold or the power we think we should hold.

This fear is at the core of every election dispute in our Kenya. The fear of losing power, on one side, and the fear of not gaining the power we wanted on the other.

This fear leads to the manipulation of truth, accusations and counter-accusations that bring out the worst in every leader. We shout ‘mass action’ so that the poor and the ignorant may die and property may be damaged, while leaders negotiate in luxurious hotels, at the expense of the taxpayer.

Mass action makes no sense in a country where courts have gained the necessary independence to make objective decisions and I am morally certain that our Judiciary has reached that point, perhaps more so after the latest appointments to the Supreme Court.

In these past few hours, we have had ugly incidents of some politicians accusing each other bitterly. For the sake of peace this nonsense needs to end.

The Nasa leaders should stop any further press conferences and the Jubilee officials do not need to answer those allegations.

Let the Independent Electoral and Boundaries Commission (IEBC) issue the final results after the manual tally is finished. Once results are officially published, the loser may go to court. Only a court of law can declare the illegality or unconstitutionality of election results.

Every politician, winner or loser, like it or not, has the patriotic and moral obligation to hold the results valid unless otherwise declared by a court of law.

We cannot take the law into our own hands; we would be undermining the very same democratic principles we claim to protect and uphold. No one can referee his own match.

MISSION IMPOSSIBLE

The IEBC was given Mission Impossible in an unreasonable span of time.

Just four weeks ago, we did not know if we would get ballot papers at all. Every step and every purchase was questioned.

Ghosts appeared behind every decision and the court process was abused by every Tom, Dick and Harry.

These IEBC men and women gave their hearts, minds and time to make the impossible happen, and one of them, Chris Msando, lost his life in the process.

The IEBC took care of every possible little detail in an election process. By international standards, our elections were seamless, accurate and professional. The most minute detail was carefully considered.

Even the queuing system, which in the past had been a tribal factor, was well thought out this time round. For the first time in Kenya, I did not hear mother tongue spoken in the same queue. August 8 was an exemplary day for the whole world, “a beautiful example of democracy” as John Dramani Mahama, the former President of Ghana, declared.

As results started trickling in, panic invaded the “losing” quarters. The system had been hacked, they said and a 60-page, detailed report was issued within a few hours.

This report claims that Mr Msando’s credentials were used to gain access and insert an algorithm that recalculated results placing a standard 11 per cent advantage in favour of Uhuru Kenyatta. The report contains what Nasa claims to be log-files of the IEBC server.

“HACKED IEBC”

Was IEBC really hacked? How did Nasa obtain this information? Is it genuine?

Has Nasa been fooled by Jubilee or by the frustrations of its own expectations? Is the log presented by Nasa (the error log of a Microsoft SQLServer 2008) a log obtained from the IEBC server?

There are three possible scenarios that can unravel this mess.

In the first scenario, Nasa could have hacked the servers of the IEBC and discovered that someone from Jubilee had got inside before them.

They used a backdoor to the system, in which case the credibility of their findings is as questionable as their own conduct.

This scenario, if proven, would present a serious breach of the law and put Nasa leaders in serious danger of being proffered with criminal charges.

In the second scernario, a staff member of IEBC, in cahoots with some Nasa officials, leaks information about the server.

This presents a serious breach of professional ethics and misappropriation of valuable, confidential information by Nasa officials. They would have imprudently exposed themselves by revealing their own crime and twisted manoeuvres, which would not be good.

In the third possible scenario, the log files presented could be a false montage, a forgery belonging to other servers and not to the IEBC server.

They could have been used to cheat the Nasa leaders but belong to different servers, not those of IEBC.

These three scenarios are incriminatory and they would put the Nasa officials on the spot. The third one may be the least dangerous from a legal perspective, but it would make the opposition appear as cheats.

In my opinion, considering the matter from an objective perspective and as a lawyer, Nasa could have just rejected the provisional results, called for all the relevant forms 34A to be brought (even though this is the opposite of what they requested a few weeks ago in court), and then wait for the final tally.

In the meantime, they could have asked for a court order to access IEBC servers and get hold of the information they say they had and compare, contrast and collect evidence to support their plea in court.

I hold the personal view that the presentation of such a detailed report was an ill-advised step.

I wish they had never done so and I wish I could have explained this to these intelligent men, who usually listen to reason. Now it is too late, for they have put themselves on the spot, and from a legal standpoint, this is bad.

They may have incriminated themselves and Keriako Tobiko could be quietly taking notes, for this is part of his job.

LEGAL CONSEQUENCES

In Kenya, our anti-hacking and data protection laws are quite deficient. There is Bill making progress in Parliament. It is 2016 Cyber Security and Protection Bill, which established penalties for hackers, from 3 to 7 years of imprisonment plus severe fines. But this Bill is yet to become law.

Even though we have ratified the African Union Convention on Cyber Security and Personal Data Protection, hacking in Kenya is still regulated under the 1998 Kenya Information and Communications Act (KICA) and its subsequent amendments. The Act is quite inadequate for it was tailored for a different reality.

Section 83Q deals with unauthorised access to protected systems. It says, “Any person who secures unauthorized access or attempts to secure unauthorised access to a protected system commits an offence and is liable on conviction, to a fine not exceeding ten million shillings or to imprisonment for a term of ten years or to both”.

So, in trying to prove that Jubilee had hacked the system, Nasa officials could have made themselves collectively liable to a punishment of 10 years in jail or ten million shillings or both.

It is now on Nasa’s shoulders to prove not only that Jubilee may have hacked the system, but also to prove that they did not hack it and they obtained all the information recorded in their report veraciously and lawfully.

They did not realise it, but they may have jeopardised their plea in a court of law.

MOST UNFORTUNATE

I have always had a deep respect for most opposition leaders; they are brilliant men and women of honour. They are outstanding, intelligent and hardworking.

It is shocking that they were misled into taking such an imprudent step, making these self-incriminating and inflammatory remarks in an atmosphere that is already so heavily charged with emotions and ill feelings.

It is like lighting a match next to a petrol tank and pretend that we had nothing to do with the explosion.

Now, what could their defence be? To say that when they went to steal, they found another thief inside there? You may never do evil so that good may come out of it; it never does. This is most unfortunate.

The opposition needs to reflect seriously on the legal and social consequences of their actions. For their own good, and for the good of Kenya, the land that gave birth to them, and where they will one day leave their legacy.

Dr Franceschi is the dean of Strathmore Law [email protected]; Twitter:[email protected]