ICT Legislation for Prosperity and Economic GrowthInformation and Communication for All KenyansKenya a nation of the first world

Presentation to the House Committee on Energy, Public Works and Communications, House of Representatives, Kenya

Kenya ICT Federation, September 2008

Kenya is the leading economy in the vast Eastern Africa and Horn of Africa regions. It is not only leading in size, but also in technology, industrial capabilities, productivity and ideas.

We have a bright and well educated generation of young engineers who understand the needs of the country and are ready to build solutions, using world class technology.

Vision 2030 has identified Information and Communication Technology (ICT) as one of the five pillars of prosperity. The Kenya ICT Federation wants to build an industry of information and communication technology (ICT) that can contribute to prosperity for all and boost economic growth. ICT is proven to be a growth engine. One third of economic growth is brought about by ICT. ICT is a big investor: in people, in networks and in services. Other countries have seized on ICT to turn around their economies, and indeed, change the fortune of the country. Examples? Malaysia has become a industrialised country that exports technology; in the former soviet state Lithuania almost all households do their banking on-line at home, South Africa captures tourism market share through e-commerce and next door, Rwanda, all villages are connected by Internet.

It has been ten years since Kenya changed its laws in the area of ICT. In the same ten years, one in three Kenyans has become owners of mobile phones. Computer labs are being built in almost all schools. Public administration agencies have started giving us e-government. E-Commerce has become the preferred way of doing business in a growing number of countries world-wide. E-Commerce alone, once covered in Law, will add at least one percent point of growth to our economy in less than three years.

ICT is a dynamic industry that can attract much investment and create many jobs, well-paying jobs. At least equally important, it helps all communities to become part of the networked world, whether urban or remote rural. The law that covers the ICT industry needs to keep pace with the dynamics, and be as supportive as can be. The Kenya Communications (Amendment) Bill, 2008 is an example of an enlightened draft, designed to modernise existing legislation, without going back to the drawing board from afresh.

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INVITATION

The Kenyan ICT industry invites all MPs to support modern ICT legislation and where possible, make it stronger so that even more investment and even higher living standards can be achieved through its impact on our society and economy.

The Kenyan ICT industry wishes to advance some suggestions for further strengthening the ICT related legislation. These suggestions are made to ensure that as many companies and investors as possible are mobilized to move Kenya higher up the global ladder. The suggestions aim at:

• Making sure the responsible Minister and sector regulator Communications Commission of Kenya are empowered by legislation to promote development through ICT

• Facilitating as much private sector participation as possible in

• Making sure our texts are in line with global best practice

• Making sure modern ICT infrastructure, services and financing are well covered

SUGGESTIONS FOR STRENGTHENING DRAFT LEGISLATION

• Liability communication service providers – no legal obligation on communication service providers to monitor content; no liability for content that infringes copyrights, that is defamatory, that is vulgar, unless and until they are notified.

• Licensing fees levied by the industry regulator Communications Commission of Kenya (CCK) are constrained by laid down Government policy objectives for the ICT sector and for the economy in general

• Promote e-commerce and open up the e-commerce market for as many Kenyan companies as possible, as this will in itself add significantly to economic growth

• Provision of protection of Personal Information (e.g. UN model text – 1990 UN Guidelines for the regulation of computerized personal data files)

• Articulate objectives of application of Law on e-government services, as having positive impact on democracy, good governance, and better business environment – amend Section 83C (p 1328), Communications Amendment Bill, 2008

• Promote e-government for persons with

disabilities and special needs• Avoid usage of Ministerial discretion in

applying the Law, as such avoidance is in line with international best practice and also the Bill provides ample room to support the Minister in the discharge of his responsibility

• Protect against avenues for the CCK to conflict with policy objectives

• Demarcate the role of the CCK as implementor and custodian of the Law, and provide adequate clauses for it to be bound by Government policy

• The CCK operating budget and all CCK licensing fees must conform with the spirit of the Law and of government policy

• The role of the industry in managing the ICT industry to the benefit of the country will be significantly enhanced by appointment to the Board of Directors of the CCK representatives from reputable private sector associations

• The role of the industry in managing the ICT industry to the benefit of the country will be significantly enhanced by appointing to the National Communications Secretariat representatives from reputable private sector associations

• The current Bill appears to be weak on fraud which constitutes an inadequate deterrent to cyber crime. It is important to stipulate stiffer punishment on a graduating scale

PROPOSED CHANGES TO THE KENYA COMMUNICATIONS (AMENDMENT) ACT, 2008September 14, 2008

1 COMPOSITION OF THE BOARD OF THE CCK

Page 1307Section 7(f)[The Board of the CCK shall include]…. (f) at least seven other persons, not being public officers, appointed by the Minister and of whom:

I. At least one shall have knowledge or experience in matters relating to law and be nominated by the Law Society of Kenya;

II. At least one shall have knowledge or experience in postal services;

III. At least one shall have knowledge or experience in matters relating to broadcasting and be nominated by an association for the time representing broadcasters;

IV. At least one shall have knowledge or experience in matters relating to broadcasting radio communications;

V. At least one shall have knowledge or experience in matters relating to computer science and be nominated by an association

Kenya ICT Federation, September 2008 - 3

for the time representing the information and communications technology industry;

VI. At least one shall have knowledge or experience in matters relating to telecommunications and be nominated by any association for the time representing telecommunications service operators;

VII. At least one shall have knowledge or experience in matters relating to consumer protection matters and be nominated by any association for the time representing consumers.

2. EXCLUSION OF CERTAIN DOCUMENTS, DISCRETION OF MINISTER

Page 1328

PART VI A – ELECTRONIC TRANSACTIONS

Delete Section 83B (1). This part shall not apply to any rule or law requiring writing or signatures in any of the following matters:

(i). The creation or execution of a will;(ii). Negotiable instruments;(iii). Documents of title.

Delete Section 83B (2). The Minister may by order modify the provisions of sub-section (1) by adding or removing any class of transactions or matters.

3. E-GOVERNMENT

Page 1329Section 83C (A): The functions of the Commission with regard to e-government shall be to:

a) promote public confidence in the integrity and reliability of electronic records and electronic transactions;

b) promote effective delivery of public goods and services by the government;

c) eliminate barriers to information and government services for persons with disabilities and disadvantaged or marginalized communities;

d) strengthen good governance and public participation or digital democracy;

e) create a better business environment; andf) foster mutual co-operation and synergy

between government departments and agencies in the collection, management and deployment of public information.

3. PROTECTION OF PERSONAL INFORMATION

Definition: Personal Information includes any data which relates to a person and which could be used,

either directly or indirectly, to identify, locate or communicate with the person.

Section 83T (A).Subject to any other law providing for the collection, storage, management and use of personal information, personal information shall not be collected, stored, managed and used by means of an electronic record or unless:

(a) the personal information is collected for a purpose that is lawful and directly related to a function or activity of the person collecting it;

(b) the person to whom the personal information relates has been fully informed of the purposes for which the information is collected and the person has consented to the collection and use of the personal information;

(c) the personal information is used only for the purposes for which it is collected;

(d) the person to whom the personal information relates shall be entitled to;

a. access the information and obtain a copy of it; b. vary, update or change the information; c. object to its use whether in whole or in part or vary the terms of its use; andd. retract the information whether in whole or in

part.(e) the person collecting personal information shall

ensure that the information is protected from accidental loss and damage, unlawful disclosure and unauthorized access and alteration;

(f) Unless the personal information is collected for a continuing purpose, which purpose shall have been previously declared to the person to whom the information relates, then immediately after the date on which that information is required to be deleted or destroyed, or where, if no such date is specified, if having regard to the purpose for which the information was collected it is no longer necessary to keep the personal information, the person who collected the information shall delete or destroy the personal information.

4. COMPUTER CRIMES

Page 1339Section 83WUnauthorized access to an interception of computer service(1) …any person who by any means knowingly:-a. Secures access to any computer system for the

purpose of obtaining, directly or indirectly, any computer service;

b. Intercepts or causes to be intercepted, directly or indirectly, any function of, or any data within a computer system, shall commit an offence.

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(2)(a) A person convicted of an offence under subsection (1) shall be liable on conviction to a fine not exceeding.

(b). Where as a result of the commission of an offence under subsection (1), the operation of the computer system is impaired, or data contained in the computer system is suppressed or modified, the person convicted of such offence shall be liable on conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding five years or both.

Page 1341Section 83X.Unauthorized modification of computer material….(2) Where as a result of the commission of an

offence under this section: (a). the operation of the computer system; (b). access to any program or data held in any

computer; or (c). the operation of any program or the

reliability of any data, is suppressed, modified or otherwise impaired

the person convicted of the offence shall be liable on conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding five years or both.

Page 1344.Section 84BElectronic fraudAny person who fraudulently causes loss of

property to another person by:(a). any input, alteration, deletion or suppression of

data; or(b). any interference with the functioning of a

computer system,with intent to procure for himself or another

person an advantage, shall commit an offence and shall on conviction be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding five years or both.

5. IMMUNITY OF SERVICE PROVIDERS FROM CIVIL AND CRIMINAL LIABILITY

The Immunity of telecommunications service providers and data carriers from criminal and civil liability for copyright infringement, defamation and vulgar/immoral content

(a.) The Bill needs to make provisions giving statutory exemption to telecommunications service providers and data carriers from liability

for harmful (copyright infringing, defamatory, vulgar, etc) content streamed through their infrastructure where they have not assumed any obligation to monitor and intercept harmful internet traffic.

(b). The legislated immunity of TSPs and data carriers is borne out of the appreciation of their crucial role in the growth of the ICT industry.

(c). It needs to be specifically legislated that TSPs are not under any general obligation to monitor data traffic on their servers/networks unless they are notified or otherwise become aware of illegal content. They should have absolute immunity from liability for transmitting, cacheing and hosting content as well as for third-party linking.

However, on the basis of the doctrine of freedom of contract, TSPs and data carriers wishing to contract themselves out of the immunity by obligating themselves to monitor harmful content for their clients would remain free to do so.

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). 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.

Kenya ICT FederationPO Box 40258 00100 Nairobi020 444 0102secretariat@kif.or.kewww.kif.or.ke.