CYBER-LAWYERS REQUIRED FOR KENYA'S KNOWLEDGE ECONOMY

This week I have had several chats with some of my learned friends about the Communication (Amendment) Act 2008. I am convinced that there are still major gaps or areas of improvement if we are to have a conducive legal environment for the growth of a knowledge economy. Perhaps the biggest gap is the basic one of awareness among law enforcers, advocates, judges, prosecutors and the public in general.

Many of my learned friends are either themselves ignorant of the existence of the law or are simply skeptical that it is not a practical law. Various sections of the law seem simply Utopian to the some of the lawyers. Some lawyers merely dismiss it as a law doomed to automatically contradict other existing laws. With the lawyers themselves skeptical about our cyber-laws the public confidence on economic activity through the web and other electronic platforms is seriously undermined.

The communication amendment act having already been passed and signed, there are at least two more bills outstanding with the ministry of ICT that will further enhance our knowledge economy - The Freedom Of Information (FOI) bill and the Data Protection Bill. There is need for greater professional participation in the development of these bills especially among legal fraternity and the IT industry. It might also help a great deal for the proposed bills to be presented for discussion in our universities' legal, business, media and information technology schools. Apart from enriching the contents of the bills, such presentations will double up to achieve the much needed publicity and advocacy among the youth who are ultimately driving the knowledge economy.

In general, there seems to be a dire need to interest many more lawyers on ICT and knowledge management disciplines. Perhaps this needs to be addressed by enhancing the our university law offerings or through continuing education for the already learned friends. Some of our universities may already be sensing this need, which may have necessitated Anthony Okulo's presentation - Development of a legal framework for e-commerce in Kenya during the Strathmore University's 9th ICT seminar (September 2008)

TIME FOR KENYANS TO LET GO - OF THE CHERISHED WAN

With the anticipated landing of various undersea fiber optic cables at our coast, there is bound to be a radical transformation of the average corporate IT infrastructure. Many of the of larger regionally diversified organizations in Kenya have over the years invested heavily in Wide Area Network (WAN) equipment. The investments in hardware havealso gone along with expensive bandwidth provision contracts. This has largely been in pursuit of reliable data connectivity across their organization's branches.

Government parastatals form a bulk of such organizations in addition to banks, and several of the larger local companies. Also included among the soon-to-be affected are multinational companies, international NGOs and intergovernmental agencies who have elaborate equipment setups and contracts based on the ageing premise that data connectivity in the country is slow, expensive and unreliable.

Fortunately or unfortunately, the above organizations will very soon find themselves having to choose between clinging on to their costly traditional WAN infrastructure or moving on to more cost effective Virtual Private Network (VPN) arrangements. VPN solutions are private to the corporate but essentially running on the public internet infrastructure. Although VPNs have been in the industry for a while, they are a relatively more modern approach to data connectivity compared to the traditional WAN concept. The more unfortunate of these organizations are currently trapped in restrictive vendor lock-in contracts, to expensive proprietary WAN solutions.

The older WAN concept has remained popular for as long as the local public internet services have been considered not feasible for the most basic business communications. The landing of undersea fiber cable infrastructure such as that of SEACOM, and TEAMS in Mombasa is anticipated to change the equation all together. The under sea infrastrature will bring down the cost of public internet drastically while significantly improving Kenyan internet user experiences in terms of speed and reliability.

With attributes such as cheap, fast and reliable becoming a reality for public internet it will become inevitable for organizations to re-design their existing corporate data connectivity solutions. All they need to explore are additional features to overlay the public internet connections such as corporate security, network policy management and scalability for their business needs. Lucky enough there already exist cost effective VPN solutions. A VPN solution can be designed to efficiently address the extra corporate concerns while making the traditional WAN solution look like a ridiculous rip-off all together.

Cost reductions will be realized largely in the form of reduced recurrent bandwidth costs. Some of the VPN solutions offered by our competing telecoms require little or negligible initial capital outlays. In some arrangements, the required networking equipment is offered for free or at a negligible cost, requiring the corporate customer to only pay for the data services consumed.

Equipment vendors including Cisco have even more flexible solutions. The vendors provide minimal set of equipment to be installed at the head offices. The specialized VPN equipment is used to centrally manage security and policy concerns for the connected employee's computer regardless of their location and means of connection. This is where employee reserves their freedom to use an internet connection service of their choice - providing they have the VPN software installed on their computer. For the Cisco hardware solution, the VPN software is free to download on their website.

The completion and light up of the National Optic Fiber Backbone Infrastructure (NOFBI) across the country funded by Kenyan Tax Payers will make the situation even rosier for state corporations and government departments. This is especially if they are given preferential rates. The new terrestrial infrastructure whose contractors are Sagem, Huawei and ZTE is at advanced stages of implementation and the government recently advertised a tender for its maintenance.

With reduced connectivity rates, institutions will only need to invest in cost effective VPN solutions to piggy-back on the national infrastructure. This should free up more monies previously allocated to corporate IT infrastructure development and maintenance. Such savings may be reallocated for use in other strategic investments such as developing a human capital base around software development and IT security services. The resulting increased access to electronic information will also give rise to advancement of our budding knowledge economy.

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.