[kictanet] Legislation and Regulation for e-Commerce in Kenya

Tue Jul 8 10:45:02 EAT 2008

Great analysis Harry, Marcel et al,

What do you guys have to say about the 'merger' between the e-transactions
and the ICT-Bill, where language from the e-transaction drafts has been
incorporated into the ICT Bill?

Regards,

Brian

On Tue, Jul 8, 2008 at 10:10 AM, Harry Hare <harry at africanedevelopment.org>
wrote:

>  Dear Marcel,
>
>
>
> Good review of the proposed bills. I happen to have participated in the
> preparation of the Draft e-Transaction Bill and would like to respond to
> some of the concerns in my own capacity as a Kenyan citizen. Another caveat
> is that apart from attending a one week course on legal aspects of
> e-Commerce, law is a stranger in my being. See my responses to the specific
> issues the analysis raises below:
>
>
>
> Harry
>
>
>
> 1.     Provisions on who can prosecute are missing
>
>
>
> This is actually covered in Schedule C, under the investigations of
> offenses section and article 21 gives the commissioner of police the
> authority to prosecute. Under the same section, there is a proposal to
> constitute special investigation unit on cyber crime.
>
>
>
> 2.     Liability of Internet Service Providers must be demarcated
>
>
>
> You may want to be abit elaborate on this. Part IV of the proposed bill
> tries to indemnify service providers from third party felonies. Would you
> prefer for instance that we have data providers and internet service
> providers as separate have separate limitations?
>
>
>
> 3. Clarification on which commercial documents are excluded from proposed
> legislation
>
>
>
> In the initial drafts of the proposed law, the documents had been listed as
> title deeds, bearer bonds and letter of credit; this is actually best
> practise as proposed by the UNCITRAL models laws on e-commerce. The concept
> tries not to cover documents that can be exchanged for cash/service or
> goods.
>
>
>
> 4. Eliminate any ambiguity on admissibility of electronic evidence
>
>
>
> The question of admissibility of electronic evidence is covered very well
> in Schedule B which has proposed amendments to the Evidence Act. I do not
> see any ambiguity in this section unless you can point out something
> specific.
>
>
>
> 5. Need for data protection and privacy provisions
>
>
>
> Articles 31-34 of the proposed bill covers protection of private
> information. Is this insufficient?
>
>
>
>
>
> 6. The Bills are more lenient on e-commerce fraud than on traditional fraud
>
>
>
> Might need some research on this.
>
>
>
> 7. Remove inconsistencies in determining crimes and punishments
>
>
>
> I tend to agree with the analysis here...for instance spamming the proposed
> fine is 200,000 and spoofing the proposed fine is 2m. May need some
> reworking in line with the weight of the offence.
>
>
>
> 8. Provisions for the inclusion of cyber-crime within the scope of the
> Extradition Act
>
>
>
> The bill proposes that the clause "all the crimes mentioned in the
> Electronic Transactions Bill 2007", this clause enough to amend the
> Extradition Act to include the crimes that have been identified in the
> proposed bill.
>
>
>
> 9. Creation of an Administrator for e-commerce laws whose functions will be
> policy implementation and advisory, as a multi-sectoral body with industry
> associationsincluding KIF, lead regulator communications Commission of Kenya
> and co-regulator
>
> Central Bank of Kenya
>
>
>
> We belaboured on this and initially came up with a proposal to have a
> multi-stakeholder agency, akin to KENIC, to administer the act but after
> long discussions and consultations, the team was unable to come out as
> boldly as you did for several reasons.
>
>
>
> i)              We were aware of the fact that proposing the creation of a
> new body has some budgetary implications and therefore would slow down the
> process of enacting the law.
>
> ii)             The Bill was developed towards the end of last year, the
> mood at that time was that anything that went to parliament had the risk of
> being politicised and therefore aligning the bill to specific institutions
> was suicidal
>
>
>
> *From:* kictanet-bounces+harry=africanedevelopment.org@
> lists.kictanet.or.ke [mailto:kictanet-bounces+harry<kictanet-bounces%2Bharry>
> =africanedevelopment.org at lists.kictanet.or.ke] *On Behalf Of *Marcel
> Werner
> *Sent:* 06 July 2008 17:44
> *To:* harry at africanedevelopment.org
> *Cc:* secretariat at kif.or.ke; KICTAnet ICT Policy Discussions
> *Subject:* [kictanet] Legislation and Regulation for e-Commerce in Kenya
>
>
>
> Legislation and Regulation for e-Commerce in Kenya
>
> Kenya ICT Federation (KIF) - Briefing Note # 3  - Report - Public Panel 19
> June 2008
>
> *Electronic commerce (e-commerce) will add at least one percent point
> growth to Kenya's overall economic growth within five years. This is
> contingent upon the adoption of legislation that supports electronic
> transactions. *Kenya, as an emerging economy and regional leader, lags
> behind in having a legal framework for e-commerce in place. The current
> situation is an anachronism hampering national development, placing
> provincial centres at a disadvantage, and harming global competitiveness.
> Both external and internal trade require the new framework.The Kenyan
> private sector strongly supports e-commerce legislation, as well as
> legislation of the Information and Communication Technology sector that
> guarantees an open market and promotes innovation.
>
> Why e-commerce law? Today, legislation supporting electronic transactions
> represents the single most powerful innovation opportunity in the legal
> framework of the ICT sector. Legislation is needed to:
> -Legalize e-commerce transactions by recognizing an electronic signature
> -Manage and control e-commerce risks
> -Remove e-commerce barriers
> KIF has studied drafts currently circulating in the public domain, the
> Information and Communications Bill, 2008, and the Electronic Transactions
> Bill, 2007, respectively, both of which are of the highest technical
> standards. Public panels and hearings with sectors of the economy (including
> tourism, agriculture, ICT) have been held on 6th and 27th May, 4th June and
> 19th June. The Kenyan private sector has expressed overwhelming support for
> urgent legislation of e-commerce.
>
> Suggested improvements in Bills - The public panels and hearings to date
> have yielded the following important issues for improvement in the current
> Bills:
>
> -          Provisions on who can prosecute are missing
>
> -          Liability of Internet Service Providers must be demarcated
>
> -          Clarification on which commercial documents are excluded from
> proposed legislation
>
> -          Eliminate any ambiguity on admissibility of electronic evidence
>
> -          Need for data protection and privacy provisions
>
> -          The Bills are more lenient on e-commerce fraud than on
> traditional fraud
>
> -          Remove inconsistencies in determining crimes and punishments
>
> -          Provisions for the inclusion of cyber-crime within the scope of
> the Extradition Act
>
> -          Creation of an Administrator for e-commerce laws whose
> functions will be policy implementation and advisory, as a multi-sectoral
> body with industry associations including KIF, lead regulator Communications
> Commission of Kenya and co-regulator Central Bank of Kenya
>
> Gains in tourism, agriculture, healthcare
>
> Industry sectors, notably the tourism industry, are expressing their desire
> to see e-commerce covered by law. In tourism, on-line travel bookings have
> exceeded 80% in the USA and 50% in Europe. Decline in off-line bookings is
> in ample evidence. Those destinations that cannot legally support abundant
> on-line booking, such as Kenya, will loose market share. E-commerce in
> agriculture will improve small-holder's living standards. Great impact is
> expected notably in the coffee sector that provides livelihood to at least 5
> million Kenyans, as well as in the dairy industry. Healthcare efficiency and
> affordability will improve by on-line health data management systems.
> Business operators in rural towns and rural centres have also expressed keen
> interest, as they see scope to address issues of trade efficiency and
> security in rural Kenya.
>
> What is e-commerce
>
> E-commerce is a method of trading that replaces paper-based documentation
> by a mutually binding electronic protocol between buyers and sellers.
> E-commerce is gaining ground globally and has become an irreversible trend.
> Many trading partners are already practicing e-commerce, by mutual
> agreement, also in Kenya. However, e-commerce will reach its full potential
> when parties that do not know each other are able to trade with full mutual
> protection under the law. This will benefit large numbers of consumers and
> businesses, including small-holder farmers, tourism operators, small-scale
> industry and services providers in almost any business sector.
>
> About KIF
>
> The Kenya Information and Communication Technology Federation (KIF)
> represents the ICT industry with Government and with private sector bodies
> e.g. Kenya Association of Manufacturers and Kenya Private Sector Alliance
> KEPSA <http://www.kepsa.org/>. KIF is a legally registered membership
> based Association, made up of trade associations and professional bodies
> within the national ICT industry, as well as commercial corporations. KIF
> has been accepted as the private sector voice of ICT by Government. KIF
> contributes ideas to key sectors like healthcare, education, agriculture,
> construction industry, and last but not least supports e-government
> development. KIF is a membership-driven organisation. Members bring issues
> on public policy and industry development forward for KIF to take action.
> Issues include: innovation promotion, education improvement, duties, taxes
> and levies, rural ICT investment. KIF has a strong and active network, with
> excellent relationships with all government agencies. KIF membership is open
> for market segment associations and individual companies. Membership charges
> are annual and based on company size. Contact: secretariat at kif.or.ke, 020
> 4440102
>
> MARCEL WERNER, Chairman, Kenya ICT Federation
>
> please send any business mail to:
> Marcel.Werner at innovation-africa.or.ke
>
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-- 
Brian Munyao Longwe
e-mail: blongwe at gmail.com
cell: + 254 722 518 744
blog : http://zinjlog.blogspot.com
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