THE "SECRET CYBER-LAW" OF KENYA - Part 1

One of the best achievements of Kenya's current (nineth) parliament was passing the Kenya Communications (Amendment) Act 2008 [download pdf]. Indeed to those watching the developments in the local IT landscape, the law's gazettement on 2nd January was one of the the best new year gifts for 2009. The country became the sixth African country after Tunisia, Egypt, Morocco, South Africa and Mauritius to enact a law addressing business in the cyber-space. Enactments of these laws are deliberate efforts by the governments to create a conducive legal environment fostering growth of the local knowledge economy.

As unfortunate as it would be, the great story of a new beginning for the ICT sector went largely unnoticed. The new law curiously carries a section or two that traditional Kenyan media did not like. Members of the fourth estate had started waging war against the new act as early as 2007 before it was tabled to parliament. So distructive was the media's campaign against the law it is still unfortunately referred to as the 'media bill'. One wonders why there was little or no deliberate effort by the Kenya ICT Board and ICT industry's lobby groups to popularize the various positive aspects of the law. The law continues to be mis-represented and the cyber-law issues remain 'a secret'.

In her paper 'Legal and Regulatory Frameworks for the Knowledge Economy', Angeline Vere of Africa's Association of Communication Lawyers outlines 10 legal issues of concern for creating an enabling environment for the knowledge economy through cyber-legislation

1. Contract validation and the legality of electronic transactions
2. E-signatures and Authentication
3. Admissibility and evidential weight of e-communication
4. Consumer protection
5. Intellectual property rights
6. Data protection and privacy
   
7. Liability and dispute settlement
8. E-jurisdiction
9. E-taxation
10. Cybercrime

In this post I shall attempt to discuss how the act addresses two of the above concerns - leaving the rest for a later post.

Admissibility and Evidential weight of e-communication

The new law guarantees legal recognition of electronic records. It assigns information in electronic form equal legal status as information in any other written form. The law defines electronic form, with reference to information, as any "information generated, sent, received or stored in magnetic, optical, computer memory, microfilm or similar device;"

With this law, the fact that information is in electronic form shall not be the sole reason the information cannot be admitted in court - it shall be given due evidential weight. The law goes further to recognize email messages by specifying that "a declaration of will or other statement shall not be denied legal effect ... solely on the ground that it is in the form of an electronic message"

Implementing this law means that the Kenya government, its agencies, and other corporates can confidently invest in efficient and electronically flexible knowledge management systems for improved communication, collaboration and general content management. Organizations and the public in general will benefit from a reduced emphasis on traditional paper based systems which are more draining on our scarce resources (including financial, space, time, the natural environment etc). Our traditional paper based information systems have also been seen to promote bureaucracy and corruption.

E-Signatures and Authentication

The law defines “electronic signature” as data in electronic form affixed to or logically associated with other electronic data which serve as a method of authentication. It specifies the criteria to be met if a signature is to be valid. Criteria for reliable advanced electronic signatures are also spelled out to make use of advanced digital certification and cryptographic technologies. This allows for advanced categories of signatures to be afforded greater legal weight due to their presumption of greater reliability and trustworthiness.

The Communications Commission of Kenya (CCK) is in this law empowered to facilitate and regulate electronic certification services by issuing licenses to prospective certification service providers (defined as an entity or a legal or a natural person who issues certificates or provides other services related to electronic signatures).

The law creates an opportunity for local entrepreneurs (and foreign service providers) to go into provision of digital signatures and certification. This will bring such services closer to Kenyan corporates and consumers who have previously had to services from European and North American providers amidst legal and logistical hardship. In the advent of globalization, services of such local companies should be recognizable by any foreign authority whose cyber laws carry the spirit of UNCITRAL's convention on electronic signatures [download pdf].

Addressing the above issues through a the legal framework should spur more growth in the ICT industry in Kenya. This anticipated growth will be boosted further by the government's investment in making data connectivity more affordable through inland and undersea fiber optic cable initiatives.