The Business Laws (Amendment) Act 2020, which harmonises the use of electronic signatures (e-signatures) in electronic commerce (e-commerce) transactions, was assented by President Kenyatta on 18 March 2020. Notably, electronic signatures were already provided for under the (amended) Kenya Information and Communications Act No. 2 of 1998 (or KICA, 1998).
Despite the global economic slowdown occasioned by the COVID-19 pandemic, the harmonisation of electronic signatures will likely breathe life into Kenya’s e-commerce environment. This move enables Kenya to shift from a paper-based economy, and avails swifter methods for signature and authentication.
“This will also give impetus to the rights to free expression and access to information by enabling citizens’ deeper immersion into the digital economy, using varied digital platforms and communications tools, including the Internet,” said Mugambi Kiai, Regional Director of ARTICLE 19 Eastern Africa.
Kenya’s Digital Economy Blueprint (Blueprint) refers to the word ‘trust’ more than fifteen (15) times. Clearly, to build confidence and foster trust in Kenya’s e-commerce environment, and for e-signatures to produce translatable benefits for the entire Kenyan populace, access, data protection (informational autonomy) and cyber security challenges must be addressed to ensure that ‘no-one gets left behind.’
E-commerce requires accessible, reliable, secure and inclusive Internet access, underpinned by actionable efforts to reduce the digital divide. Recently, it has been argued that Kenya should begin to conceptualise the Internet as a ‘public utility service’, akin to water and electricity.
On 6 April 2020, the President announced the restriction of movement in and out of the Nairobi Metropolitan Area, and the counties of Kilifi, Kwale and Mombasa. This announcement underlined the importance of access to the Internet and digital technologies for the continuity of legal, health, insurance, education, and agricultural services. Instructively, the Court of Appeal has been delivering judgments using Skype.
Commendable steps have been taken since March 2020 by both the State and the private sector to address connectivity gaps in Kenya. On 23 March 2020, President Uhuru Kenyatta publicly approved Alphabet’s and Telkom Kenya’s Loon Project which uses stratospheric balloons to provide internet connectivity (4G coverage) to rural, remote and under-served areas. It is anticipated that this will carry significant data health coverage opportunities for Kenya’s countrywide.
On 17 March 2020, Safaricom ‘doubled its internet speeds for home fibre packages at no extra cost.’
Nonetheless, Kenya is far from achieving its universal access drives. This is affecting free expression and access to information for a majority of the Kenyan populace, and carries implications for implementation of e-signatures in Kenya.
The 2019 Population and Housing Census (Census, Volume IV) revealed that many Kenyans are excluded from gaining access to, and using, the Internet and digital technologies and tools, including mobile phones, laptops, desktops and tablets. This exclusion is largely attributed, per the World Bank report, to ‘divides along income levels, gender, age and disability.’ Invariably, Internet penetration remains heavily concentrated in urban areas, despite a majority of the population residing in rural areas.
On the other hand, the 2016 National ICT Survey conducted by the CA and the Kenya National Bureau of Statistics (KNBS) established that only ‘39% of private enterprises are engaged in e-commerce whereas the Census, Volume IV revealed that only ‘4.3% of citizens (aged 15 years and above) searched and bought goods/services online’ (i.e., engaged in e-commerce activities) in Kenya.
“The Internet and digital communications tools should be accessible to everyone , which requires more proactive action by the government. This will grant citizens, businesses and the government itself with the necessary tools to concretely participate in the digital economy,” continued Mugambi Kiai.
Data protection and cyber-security challenges
Naturally, different categories of e-commerce transactions are laden with different risk profiles, and the digital economy thrives on copious amount of personal (and sometimes highly sensitive) information.
Electronic/digital signatures are inherently linked to an individual’s digital identity. In this digital age, fraud, identity theft, and privacy breaches are the tip of the ‘risk’ iceberg, with dire consequences for vulnerable persons, including the elderly, persons with disabilities, and persons living in remote and rural areas.
Despite the existence of constitutional and legislative protections, the ‘on-the-ground’ implementation of data protection and cyber security provisions is different. Kenya’s continued immersion into the digital economy continues without an operational ‘data watchdog’, i.e., the Office of the Data Protection Commissioner (or OPDC).
Moreover, cyber threats are on the rise whereas cyber security awareness is low. Between October- December 2019, the CA magnified National KE-CIRT/CC reports of a 47.3% (37.1 million) increase in cyber threats from the July – September 2019 (25.2 million) period. Despite these rising cyber security threats and attacks, Serianu and KICTANet both reported ‘low levels’ of digital security awareness amongst citizens.
These challenges are further compounded by the fact that varied security agencies and the CA possess overlapping cyber crime powers, functions and responsibilities. Further the National Computer and Cybercrimes Co-ordination Committee, under Part II, Computer Misuse and Cybercrimes Act (2018), eschews the principles of multi-stakeholderism and is constituted as a purely government-centric outfit.
- ARTICLE 19 Eastern Africa calls for a more cohesive utilisation of existing initiatives, including the Universal Service Fund and the Last Mile Initiative to alleviate infrastructural and electricity challenges for underserved and unserved areas/communities.
- ARTICLE 19 Eastern Africa recognises the CA’s efforts to provide a framework for the use of TV White Spaces, which is a welcome step towards reducing the digital divide. We call on the CA to ensure that this draft dynamic spectrum accessframework – which has been availed for public comment till 17 April 2020 – promotes the fundamental rights of freedom of expression, privacy and the right to information.
- ARTICLE 19 Eastern Africa calls on the government to impose a moratorium on the implementation of the ‘digital marketplace’ taxation (income tax and VAT levels), under the Finance Act, 2019. As the Law Society of Kenya (2018) magnified in its submissions challenging the ‘introduction of a 15% tax on telephone and internet data services’, such onerous taxation measures hamper digitisation efforts, perpetuate marginalisation and stifle freedom of expression and access to information.
For more information, please contact: Mugambi Kiai, Regional Director at [email protected]