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RIP Megaupload

"I want to be like some terrorist, a socio-cultural terrorist. Radical and careless." _ Mehul Gohil, Farah Aideed Goes To The Gulf War
Amid all the noise surrounding SOPA and PIPA - a fresh attempt againt the current freedom enjoyed by internet users in the USA - many pundits had already predicted a worldwide detriment if the two bills were passed into law, hardly a surprise given the way that US foreign and economic policy seems to dictate that of the rest of the world, especially those of us in the Third World. Sure enough, the first casualty has faced the firing squad and its dismembered head is being displayed all over the internets, much akin to the infamous Osama slaying. Friends, Megaupload is no more!!



Yes, the Feds launched an indictment against owners and managers of the file-sharing site that we have come to use and love so much on various charges of copyright infringement that goes into the hundreds of millions of dollars. In addition, access to millions of links to files hosted by Megaupload is now impossible since it has been completely shut down. Of course, the pain and loss is being felt not only by American users but nearly the entire internet universe, including my very own virtual front door. I happened to use Megaupload exclusively to up my Mixcloud-hosted mixes along with other miscellaneous .rar files for private distribution. I now have to deal with re-upping around 5GB of files with the obvious time and money implications (this is Kenya, high-speed net at affordable prices are still something of a pipe dream, you know).

This murderous event is perhaps a foreshadow of the events to come if at all SOPA and PIPA are passed by the US legislative system. Perhaps a complete shut-down of other common file sharing sites: Rapidshare, Fileserve, Zshare or the increasingly popular late comer, Hulkshare? It could spell the end of YouTube, Vimeo and perhaps even the transformation of Facebook and Twitter to such levels of redundancy that the Chinese internet space is already used to.

Besides, the war on internet based piracy could present an interesting backlash against the spirit of American foreign policy. In Africa and other parts of the Third World, this war may rejuvenate traditional forms of piracy - physical bootlegging of CDs, DVDs, books etc - run by organised criminal enterprises, enterprises that have been proven to have links to terrorism, especially targeting America as opposed to the second degree bootlegging stemming from internet piracy itself (eg. that 50 bob movie guy you normally go to).

To some extent I have always considered Direct and P2P file-sharing a gift to the Third World, something like international donor funding only of the intellectual property kind. I mean, the way things are just do not support anything else!! Distribution of movies, books, films etc etc to Africa (and Kenya in particular) is currently pretty shitty as opposed to the vinyl 70s and 80s for example. physical distribution is expensive while internet-based distribution models such as iTunes requires retailers to own credit cards, while a majority of the population remains unbanked. Before the creators and distributors of intellectual property look for more innovative ways of marketing and selling their commodities to Africa (such as partnering with mobile money transfer systems such as M-Pesa) I do not see how the current status quo will fail to subsist.
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The Machage/Kapondi/Miller Case: A Good Electronic Evidence Precedent?

The Case

Earlier this year, MPs Fred Kapondi and Wilfred Machage along with businesswoman Christine Nyagitha Miller were brought before a Nairobi Court on charges of hate speech contrary to the National Cohesion and Integration Act, 2008. These charges were based on the facts that they were allegedly caught on video making inciting statements amounting to hate speech during the launch of the NO campaign team's secretariat on June 10 last year, right in the climax of the constitutional referendum debate. Edited versions of the video recordings were later broadcast by various broadcasting stations in their news segments, prompting the National Cohesion and Integration Commission to initiate charges against the three.

This is not the first time that a criminal case based majorly on video evidence has been brought before the courts. The Edward Kirui murder trial was the first of such, but instead of providing good precedents as to how to treat evidence that is electronic in nature, the judge instead (and correctly) concentrated on the creation of reasonable doubt by discrepancies as to the serial numbers of the bullet and alleged murder weapon. This present case thus provided (in the eyes of many) a fresh opportunity to treat electronic evidence with the weight it currently deserves, given the various amendments to the Evidence Act and the enactment of other statutes such as the Kenya Communication (Amendment)Act.

The Judgement

However, Nairobi Chief Magistrate Gilbert Mutembei's judgement of this case has again fallen short, reflecting the judiciary's stubborn stance and negative attitude towards digital evidence. He declared the video evidence inadmissible on the main ground that it did not comply with the provisions of the rules of evidence. To further elaborate, the Magistrate further observed that:

  1. The cameramen who recorded the videos could not narrate to the court what the accused had said as they were concentrating more on the "quality" of the recordings than what was being said.Quoted: “Michael Mbugua as a camera man could not narrate to court what any of the accused had said because he was concentrating on quality.The second witness Geoffrey Wamugo who is a journalist did not testify that he heard the accused utter words ‘particularized’ in each of the charges” (In other words, the magistrate seemed to treat the evidence as secondary evidence that cannot be admissible until corroborated).
  2. The video footage played in court as evidence was not the full coverage of what they said since it had been edited for broadcast purposes.
  3. For any printed record or magnetic media to be admitted as evidence, there must be prove through certificates confirming the authenticity of the records.
  4. The Magistrate summarized the failures of the prosecution as follows:
  5. “The prosecution failed to comply with the clear provision of evidence as regards the production of electronic evidence in court,the evidence was critical and its omission is fatal in the case against the accused.”

The Law

Several questions spring form this ruling: Are there "clear provisions of evidence" as regards production of electronic evidence? Must the facts shown in/recorded by electronic evidence in general, and video evidence in particular, be corroborated by the creator or is the evidence good in itself? Should the video evidence be provided in full or can it be provided partially? What constitutes certification when it comes to electronic evidence?

In my opinion, the provisions of law that provide for the production of electronic evidence are far from "clear". Section 106B of The Evidence Act provides that such electronic records shall be deemed to be documents and admissible without further proof if certain conditions are fulfilled.Subsection 4 of the same section is what proves problematic and is, in my opinion, ambiguous as to whether a certificate is required to make any statements regarding electronic records or whether any matter stated in a certificate as regard the electronic record is good evidence in itself, in the same manner affidavits work. There is no provision as to the form of the certificate in question: Could an ordinary affidavit or even the witness statement of the cameraman and the journalist been sufficiently deemed to be certificates?

The Evidence Act is silent on whether electronic records should be provided in their full form (such as in this case, the entire recording of the event where the inciting statements were made) or whether they can be provided partially, as in the case of news items showing parts of the clips.

Conclusion

It is hard to particularly fault Mutembei's decision. The relevant sections of the Evidence Act relating to electronic records are written in a manner that treats this type of evidence as documentary/paper evidence, leading to a lot of difficulties in interpretation. The very nature of digital evidence, as I had earlier pointed out, requires different and specific rules on how to deal with them. The current rules are scanty at best and fatally ambiguous at worst. Digital evidence can easily be tampered with and altered at the mere click of a button. Mere certification does not guarantee the integrity of this type of evidence. Other techniques such as time-stamping and the use of experts to analyze electronic records should be explored and integrated into these provisions. The only good that has come out his judgement is perhaps it creates the precedent that if video evidence is to be produced as evidence, it shall be produced in its entirety as originally recorded and not in edited form.

In addition, the prosecution has once again come out as the main undoing of a seemingly straightforward case. The prosecution did not consider it important to secure the original recordings but instead chose to rely on snippets from news broadcasts - more like presenting to court the relevant pages of a past judgement instead of the entire document with the relevant parts highlighted. From what I have gathered so far (until I read the entire judgement and not just the reports), the prosecution seemed to have been casual in gathering the evidence, authenticating the evidence and producing it in court. But then again, with the silence/ambiguity of the Evidence Act, it is hard to blame them as well. This case exposes the extreme difficulty with which the judiciary and the entire legal profession in Kenya is still trying to deal with electronic evidence. More are on the way, without a doubt...let's watch.
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Huff, Puff, Sting: Lumumba's First TKO?

"Float like a butterfly, sting like a bee!" _ Muhammad Ali

The state at helm of the Kenya Anti-Corruption Commission (KACC) since its inception way back in 2003 has always been a reflection of the state of the entire machinery itself. Aaron Ringera first took the helm with declarations that all sorts of "small fish, big fish and little fish" running the risk of falling prey to the brand new anti-graft nets. However, by the end of his second term, Ringera had little to show in terms of "big fish" notwithstanding the fact that 4.6 billion shillings worth of omena-like dealings had been detected and prevented in the space of four years. Attempted recovery of proceeds from the Goldenberg scandal and other misdeeds abroad had fallen flat on its face. In fact, the highlight of Ringera's directorship was the huge row arising from the debate as to the legality of the process that led to his re-appointment for a second term.

When PLO Lumumba replaced Ringera last year, the general perception was that the status quo would subsist - more huffing and puffing (with a lot more eloquence this time) without any tangible results. Indeed the status quo seemed not to have changed at all and things began to take the form of yet another omena fishing expedition. Most of the high profile corruption cases seemed to be heading towards failure in court and our TV screens were awash with the somewhat thrilling footage of bribe-taking traffic police men and women being chased into banana plantations as a testament that the KACC was "working".

It thus follows that many had been caught by surprise yesterday's claims by PLO that Assistant minister Cecily Mbarire and her husband had allegedly approached him to compromise the investigations into the scandal that has bedeviled the Water Ministry, and that the duo had unfortunately escaped the dragnet of the "sting operation" that the good Director had laid out for them. According to what I gathered from the director's statement (which at certain points sounded like part of The Wire's script), Ksh. 100,000 was held out in his direction by Cecily Mbarire and her husband, Dennis Apaa, possibly in an attempt to turn things around and accuse him of demanding a bribe. Of course, Hon. Mbarire has termed the allegations as untrue and malicious.

Whether this incident goes further than this or not, PLO (and the KACC in general) has scored vital points in its war against high profile corruption and has also highlighted the state of the commission at the present moment. If the allegations are indeed true, this may highlight how high up the ladder the agents of corruption are willing to go, or have previously gone to protect their interests. Additionally, his public rejection of these corrupt offers could also be a testament of the effectiveness of the vetting culture that has recently been embraced. Having been one of the first public officers appointed after a very rigourous vetting process, it is unlikely that he will want to be among the first to fail the integrity test.

If indeed a sting operation was launched and failed due to a tip off, this could be an indicator of the disadvantage of not granting the KACC arresting powers and thus their need to collaborate with the police/CID. We all know the corruption problems our police force is plagued with. Couple that with the nature of high level corruption being very confidential and need to share sensitive information across these two institutions in order to effect an arrest, and a leak looks very likely in this scenario. The Prevention of Corruption Act (the law establishing the KACC) needs to be reviewed to grant the KACC some form of arresting powers.

All in all things are looking very good for Lumumba at the moment. He has dealt a significant sucker punch at the seemingly impenetrable walls of high-level corruption and scored vital public confidence points while at it. Like the boxing great, Muhammad Ali, PLO Lumumba is slowly coming out as one who can REALLY talk the talk and is not afraid to get into the ring either. Let's watch...

UPDATE: Well, this sadly proved to be PLO's last fight. Barely days into the Mbarire incident, the KACC top brass was fired - a move clearly machinated by Parliament, perhaps stunned by PLO's surprise attack on the status quo of impunity.
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Beef With Soap & Hearing Aids

Dear Kenyans (preferably those in the Navy or those with private yachts),

Happy New year folks!!! I know we are almost into another new month but it seems like the year has simply refused to take off just yet....for me that is. Its like am in a dream that I cant wake up from and in this dream, I'm just looking at a pendulum swing left right, right left, like something is bound to happen really soon. Its quite sad but I guess I am not in isolation. Kencell...or is it Celtel...or is it Zain...or is it Airtel...Never mind, that telecomm company with half of a hearing aid kit as its logo is in the same boat and they are desperately trying to call for help but it seems they are the only one with the hearing aid in a nation of deaf mtejas.


Yes, I feel like Hearing Aid Co. is making its last clutch at the straw before sinking into another logo in the name of their new promo - Feelanga Free 1 bob per minute. But Rene Meza doesn't seem to have profit on his mind right now, all he is intent on doing right now is grabbing Safaricom's Bob "Call-More" by the nuts until the new logo design is completed. No wonder their old logo is still scattered along some parts of the country...



I'm all for saving that hearing aid logo, because its really good looking. and in fact one of the best there is around so I'll be taking most of my calls on Airtel hoping that we wont return to the dark days of pink Kencell and their mundane advertising:



Speaking of mundane advertising, I can see a couple of chaps stuck with me and Hearing Aid Co. in this vessel of misery. In true Smallville fashion, a meteor fell into one of Bidco's oil processing facilities and out came a man in a dazzling white suit weilding amazing bars of soap of different colours that could wash off nearly everything a few centimetres short of corruption on a Kenyan politician's psyche... and thus Nuru Multi-Purpose Soap was born. Check the amazing promo ad for it below:


A few of us however sat back halfway through the dazzling display and pondered: If the SOAP is MULTIPURPOSE, why then are they showing us DIFFERENT SOAPS used for DIFFERENT PURPOSES??? Why not ONE, yes, ONE MULTICOLOURED and MULTIPURPOSE SOAP???. *sigh*

And indeed, like Noah's Ark, this boat was not devoid of animals and what better animal than to have a bull, yes, perfect to pounce on when me and Rene Meza are in need of some beef. The only problem with this bull is that he is busy hawking... wait for it, wait for it....BEEF FLAVOUR!!! *facepalm*, that even knocked the decibels of mundanity off the Hearing Aid and the Soap(s)...I was lost for words really when this Bull ( his name is Beefy Bob, I'm told) tried its sales pitch on me. At least a friend of mine recovered and managed to get some thoughts through:

"Beefy Bob on the other hand is the one that disturbs me the most..first,that nose of his is enormous. Secondly why in God's good earth would i want vegetables to taste like BEEF...if its beef i want to taste, i will go hunt down a cow (or just go to njoro's butchery) and cook the fleshy substance!And when a talking beef is trying to sell his own flavor then he should be held suspect..or taken through psychological treatment to regain his self-worth!"




SOMEBODY HELP ME GET OFF THIS BOAT!!!

Signed,

Deceased-in-Advance.
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