How Supreme Court ICT ignorance created legal quandary, circuitous litigations-Gakuru
By Alex Gakuru
The grounds given for the annulled presidential election were the considered “illegalities and irregularities” on the electronic results transmission system used. This is a technology matter. Technology was elevated to a point where every constitutional principle, legal and regulatory provision and use became the definitive point of reference. In short, “technology had its day in court.” Related Story:We promises Transparent and Accountable Poll-IEBC
Technology’s core attributes are efficiency, non-discrimination, loyal execution of commands, logical exactitude, consistency and emotionless. An argument on information and communication technology system contrary to these properties is guaranteed to fail before it starts. Therefore one must avoid any subjective (“look and feel”) assessment of technology.
Suppose you are instructed to leave Nairobi and report to an office in Mombasa by 9.00 am tomorrow morning. Why should it matter if you choose to fly, ride the train, take a bus, hire a vehicle or walk so long as you manage to get there and report on time? Then imagine you’re a vote.
On 10 December, 1948 it was declared, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
Applied to electronic transmission of results, it was decided that the technology system used should be simple, accurate, verifiable, secure, accountable and transparent. This can be paraphrased as “the electronic transmission technology must be simple, secure and transparent.” Failure to conform means that the ordered repeat poll would also be nullified, without any hesitation. Simplicity, security and transparency can never simultaneously coexist in a given information and communication technology system.
Analogous to oil and water never mix, in the information and communication technology world simplicity compromises security, security compromises simplicity, transparency compromises security while security compromises transparency. Note also that transparency does not mean simplicity, and so forth.See Also:I was in London-Justice Wanjala
A suite of technologies are concurrently deployed to provide a solution. Some are protected under Intellectual Property obligations while others protect voter’s privacy in their exercise of voting by secret ballot as a constitutional right. It is therefore fatally unjust to make presumptive conclusions.
How is one to understand this statement? “..leaves us with no option but to accept the petitioners’ claims that either IEBC’s IT system was infiltrated and compromised and the data therein interfered with or IEBC’s officials themselves interfered with the data or simply refused to accept that it had bungled the whole transmission system and were unable to verify the data.”
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The presumption that the constitutional right to privacy of millions of voters on servers is secondary to Supreme Court order is to say the least, frightening! It is factually incorrect to assume that anyone who has something they do not wish disclosed is concealing illegalities. This was sufficiently dispelled by Prof. Daniel Solove in the paper ‘I’ve Got Nothing to Hide’ and other Misunderstandings of Privacy available here. Surely, this renders mute the claim that “If IEBC had nothing to hide… readily provided access to its ICT logs and servers to disprove the petitioners’ claims.”
Venturing into IT systems and processes exposed the Supreme Court judges ignorance of technology. The resultant legal quandary created could have been avoided had the court kept off judging electronic technology system internals and only bothered with the broader meaning and interpretation of the “system.” Be assured that electronic transmission of results technologies deployed can fail despite the best intentions and effort.
The ordinary person experiences erratic internet signal coverage, call drops and unexplained SMS and mobile money services delays on local networks. Even persons located in the precincts of mobile network operators’ headquarters in Nairobi suffer these outages. Noteworthy, the Communications Authority purchased sophisticated mobile network quality monitoring equipment as regulatory instruments to hold the mobile operators to key network performance expectations. See Also:Protesters,Police Forced To Flee Bee Attack Outside Supreme Court
Whereas “3G” and “4G” are in and of themselves mobile networking technologies for accessing Internet technology they require mobile connectivity devices technology with power storage batteries technology, loaded with operating system software technology and user software technology protected by security software technology, among other technologies, all properly and simultaneously performing as expected. And accessing mobile network (even in the precincts of a base transmission station!) depends on a variety of human and natural factors including electricity to power base station and presumed absent Acts of God.
Presuming connection to the Internet and all factors remain constant, the Internet itself is a “best effort” technology which means a service that attempts to deliver messages to their intended destinations but which does not provide any guarantees regarding delivery. It ought to be understood that technology fails even with the network, connectivity, connected devices and software functioning flawlessly.
Pained technology experts almost cried upon watching Justice Mwilu falsely claim, “failure to access or catch 3G and/or 4G network, in our humble view, is not a failure of technology.” This statement beat all logic. What is their understanding of “technology” in order to extrapolate “failure of technology”? What ignorance occasioned this highly subjective/qualitative perception of technology? Read Also;Judicial Service Commission statement on attacks on the Judiciary
The Law and Technology:
The presidential election was nullified on grounds of “illegalities and irregularities” around the electronic transmission of results technology system. This has led into an investigation on how technology facilitated violations of the Constitution, broke the law or regulation and the persons responsible for the crimes committed. What were the specific technologies in conflict with the law (“illegalities”)? What were the non-observance of established rules and practices on the use of technology systems (“irregularities”) or the deviations from electoral technology regulations?
From the onset, one ought to recognize that the Constitution only sets out the basic principles of conformity, organizing government, and regulating, distributing, and limiting the functions of its different creatures, and prescribing the extent and manner of the exercise of sovereign powers. Understanding that technology was never determined to have violated the constitution and conscious of recklessness in attempts to administer digital electronic technology only using basic constitutional principles necessitates visiting the relevant laws and regulations, highlighting any gaps and pertinent legislation pending in parliament. Related Story:Live: Supreme court releases full verdict of the presidential petition
Applicable laws referencing the term “technology” are Elections Act and Elections Offenses Act and Elections (Technology) Regulations. It was hearteningly disappointing (excuse the oxymoron) to learn that no-one was found guilty of breaking the law. Heartening because our jails are stretched beyond capacity and disappointing since establishing the crime and the offense would have guided strengthening of the broken law arresting future mischiefs.
Fortunately, the Computer & Cybercrimes Bill yet to be enacted by parliament proposes, among other, offenses and penalties on unauthorised access, access with intent to commit further offence, unauthorised interference, unauthorised interception, illegal devices and access codes, unauthorised disclosure of password or access code, enhanced penalty for offences involving protected computer system, computer forgery, computer fraud, aiding or abetting in the commission of an offence, offences by a body corporate, and offences committed through use of computer systems (aka “hacking”).
The bill provides a legal framework for forensic audit of computerised systems.
Could the judges have mistakenly rushed to annul the election on “illegalities” on 1st September, 2017 only to later find themselves inadequately equipped with the law grounding their already decided positions? In which case then it is appropriate to paraphrase some American humour;
“Imagine the facial expressions on a lawyer in a courtroom upon being informed by the judge, ‘my mind is made up don’t confuse me with facts.’”Republic of the Congo president should free jailed Talassa editor
Be that as it may, the aforesaid legal culpability quandary renders an authoritative discussion on specific provisions of elections technology law which were broken, by absent perpetrators. This is clearly an impossibility. A quagmire which could have been avoided had the Supreme Court pointed out exactly who, where, when and how the electronic transmission technology criminal offense was committed guiding on how to avoid it in future. This would have effectively cemented legal/action uncertainties over whatever electronic system is deployed, how it is deployed, anywhere by whomever at whatever time on future elections.
Whereas the court never “named names” it acknowledged accounts of irregularities; but again whether that in and of itself was legitimate evidence is questionable. The dissenting opinion on the inadmissibility of evidence violating Evidence Act begs legal expertise on available constitutional safeguards against a supreme court gone rogue? Admitting the gravity of nullified presidential election on “illegalities” of non-existent laws, illegally admitted evidence without established culpability, worsened by stated resolve to invalidate future elections on the same grounds.
Experiential conflict with logic:
The problem with “qualitative” orientation lies in its ‘experiential’,‘individualistic’,‘human’ ‘emotional’ and ‘perceptional’ characteristics diametrically conflicting with technology’s core attributes. The prior (ex-ante) qualitative technological processes ‘testing’ before deployment of the ‘real thing’ is impossible.Kenyan Judiciary On The Defence
Failure to deploy an electronic transmission system would a mean clear violation of electoral law. Yet deploying the same system means the loser will be justified to knock on the supreme court’s door with an updated replica of the last petition and thereby perpetuating a circuitous series of costly presidential annulment petitions.
The electoral commission is “damned if they do and damned if they don’t” or did the supreme court essentially deny everyone else except unto itself ex post factor authority to certify or invalidate any electronic transmission technology and or any or all other automated electoral processes technologies contemplated for the future?
In view of admission at the delivery of their reasoned ruling, the fact that the majority judges are technology ignorant is incontestable. Unfortunately, their created legal uncertainties will confound lower courts in their adjudication of technology disputes henceforth.Leaked: Chebukati memos reveal rot, infighting at electoral body
Left unattended this ruling may just as well end up widely cited by legal scholars as great example of ‘how not to determine’ disputes on digital technology nitty gritties. The simplest resolution of this problem would be for the Supreme Court to vacate the decision, take counsel from Hosea 4:6 “My people perished for lack of knowledge,” humbly accept they made a serious mistake and we shall forgive them. This would then be followed by compulsory elimu ya ngumbaru technology courses in the interest of Justice. For only this could save us from worldwide ridicule.
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