Wednesday, October 02, 2013

Be very, very afraid.

If it is true that the Chief Justice is being advised by a War Council, and that he has entered into a scheme based on a War Plan, to oust the Chief Registrar from her office, and that this should be accomplished regardless of whether the Chief Registrar has committed any act that would warrant her ouster, then the Chief Justice must resign his office. But this is not an examination of the pros and cons of the Chief Justice's attempt at stamping his authority over the Judiciary, but one of the incredible stupidity that led the War Council to advise the Chief Justice as they did, and how they want about advising him.

In one of the more unsettling events in Mwai Kibaki's administration, that bugbear of Western governments, WikiLeaks, released hundreds of thousands of United States' diplomatic cables to the public. Among the leaked documents were candid assessments of Kenyan politicians by the US ambassador to Kenya, Michael Ranneberger. Until the WikiLeaks expose, the US ambassador was candid about the President, the Vice-President, the Prime Minister, senior Cabinet Ministers, senior politicians, and sundry movers and shakers and he set down his observations in detailed diplomatic cables sent to the US State Department. After WikiLeaks, the United States government was confronted with the challenge of how it would manage its vast library of classified documents without their details falling into the hands of the wrong people.

What many Kenyans missed in their hour of Schadenfreude is that United States government has one of the most sophisticated information security systems on the planet, but it frequently relies on the unreliable human element to its very great cost. This was the case in recent months when intelligence secrets were leaked by a contractor working for the National Security Agency, the largest intelligence agency of the United States government.

Kenya and Kenyan institutions do not have enjoy the financial or technical facilities for the protection of information, especially documents held in electronic form. Kenya once had a very sophisticated document control system; in the days when information was held in physical files, the information was held in different files for classified and non-classified material. Classified material was kept, and still is, in what is known as the Secret Registry, while the rest is kept in the General Registry. Information retrieval is made only after a signed request by an officer. Unauthorised access to information was unheard of, until whistle-blowers came along with Goldenberg. It has been downhill since then.

When the Standard circumvented the information security protocols of the War Council, if they had information security protocols to begin with, it was simply carrying forward a recent and proud tradition of informing the public of both the good and the ill in the public service. Why the War Council was so careless in their scheme beggars belief. In a technological environment where even a rudimentary knowledge of information technology can turn a novice into a one-man hacking machine, it was a high-risk act to transmit their plans via e-mail.

The War Council also ignored lessons that were learnt the hard way by the war criminals of Nazi Germany and all war criminals ever since. In 1942 the Third Reich convened a conference at Wannsee to discuss the Final Solution. As could be seen by how they used language, even at that stage, the Nazi knew that sooner or later they would have to account for the slaughter of millions of Jews. Therefore, they did not use words that betrayed their intentions. One of the words they chose was "repatriation" by which they meant execution using the gas chamber.

The Chief Justice's War Council foolishly and recklessly used words that could only be interpreted one way. It was incredibly naive of them to think that their scheme would not be discovered. It was incredible risky of them to set down their plans in a multi-point document that detailed every step that they, and the Chief Justice, would have to take to oust the Chief Registrar and those members of staff of the Judiciary who were seen to be sympathetic to her cause. If they truly thought they were going to war with the Chief Registrar they have now lost the initiative. They have forgotten the lessons from Sun Tzu contained in The Art of War and the tactics promoted by one of the greatest military strategists of all time, Karl von Clausewicz, contained in On War. The Chief Registrar, quite clearly, has not. She has taken the lessons and tactics of war distilled from the two master strategists and infused them with modern elements, especially the new weapons of a free press and the public's insatiable desire to side with the underdog.

While we must deplore the breach of security in the communications of the Chief Justice, now that the breach has taken place, we cannot pretend that the revelations are not shocking. It is instructive that the Chief Justice has not bothered to deny the allegations made by the Standard, nor has he offered an explanation about why he thinks he must stamp his authority on the Judiciary. These allegations must be investigated. If the Judiciary will not do it, it will fall on the highly dubious free press of Kenya. We should all be very, very afraid.

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