On 7th August 2020, the Cabinet Secretary for Information, Communications, Technology, Innovation and Youth Affairs issued the National ICT Policy Guidelines, 2020. The new Policy guidelines, which were last reviewed in 2006, were inspired by the need to align it to the Kenyan Constitution 2010 and to Vision 2030.
The Policy aims to provide a robust and proactive framework that takes into account the current technological realities and dynamics as well as guiding the orderly development of the Kenyan ICT sector for the overall benefit of Kenyans.
Below, we discuss some of the key highlights of the policy.
The Government, through this Policy, encourages Kenyans to participate in the ICT sector through what they term as ‘equity participation’. To this end, the policy states that only companies with at least 30% substantive ownership, either corporate or individual will be licensed to provide ICT services. This is a significant change as it would make it a requirement for companies providing services in the ICT space to have at least 30% substantive Kenyan ownership in order to be licensed by the Communication Authority in Kenya.
Under this provision, Kenyan individuals and corporations may be shareholders to satisfy the 30% ownership threshold. However, corporate shareholders without majority Kenyan ownership will not be considered Kenyan and will therefore not be allowed to form part of the 30% ownership.
This is a shift from the previous position where telecommunication companies were required to have at least 20% local ownership/shareholding. This provision will however not affect broadcasting companies, who are already required to have 30% local ownership.
The policy sets the timeframe for meeting this new requirement to three (3) years. This therefore means that all existing licensees have 3 years to comply with this requirement. However, the policy provides for an additional grace period of one (1) year where there are appropriate justifications and where an application has been by the company for this extension.
Promotion and Protection of Local Skills, Innovation and Data: Contract Swarming, Buying Kenyan, Enterprise Creation Opportunities, Venture Fund.
In a bid to promote and protect the local ICT industry in Kenya, the Policy, through the contract swarming provision, states that in ICT procurement, the Government will consider adopting home grown solutions when awarding tenders. Pursuant to this, it also states that if a Kenyan solution meets 70% of the stated requirements, then it will be accepted in preference over all others. Moreover, where no local businesses meet tender requirements, skill transfer to local firms and personnel will be a mandatory requirement.
Additionally, the Government, under the Policy, commits itself to work closely with the private sector to informatize and digitize Government services and operations thereby creating new opportunities that can be turned into thriving enterprises.
The Policy also creates the Venture Fund. Under this, the Government will create this Fund from new and existing fund pools. The management and priorities of the Fund will be determined by guidelines that are yet to be established.
Localization of Data
The Policy requires that all Government services must be available online and offered in an efficient manner at all times. Owing to that, the Policy oversees the risks that would arise in effecting this requirement and as such, proposes certain measures to mitigate these risks. One such measure is the requirement that all Kenyan data emanating from Government services should remain in Kenya and be stored in a way that protects the citizens’ right to privacy in accordance with the Constitution and the Data Protection Act, 2019.
However, as noble and well-intentioned this move may be, it might actually hinder the development and use of technology solutions such as Cloud which might prove more efficient than having the data stored in servers hosted at physical locations. Some of the arguments against data localization include: service and cost efficiency, relatively improved data security, reduced threat of domestic surveillance among others. Additionally, there is also a cost element to this move as data centres will also have to be built in order to store the data. On the other hand, arguments for data localization include: protection of sensitive Government information, the ease of enforcement by local law enforcement agencies and prevention of foreign surveillance.
Universal Access to ICT Services – Mobile First & Access to Persons with Disabilities
In formulating the Policy, the Government took cognizance of global trends that showed the world is going mobile as people want to access the internet and related services anywhere and at any time. Pursuant to this, the Policy lists Mobile First as one of its key focus areas with the Government making, among other commitments, to investing in the necessary infrastructure required and creating an enabling environment for the local assembly and manufacturing of devices, all in a bid to ensure universal access to ICT services.
Additionally, the Policy also mandates the provision of an inclusive ICT environment by encouraging gender equality and accessibility to persons with disabilities. The Policy requires the Government to ensure that persons with disabilities have full accessibility to ICT services. The Government is also required to put up further policies and measures that will ensure both public and private institutions provide information and services in a manner and format that is inclusive and accessible to persons with disabilities.
The Policy takes cognizance of the risk posed to children as accessibility to the internet grows within the country. As such, the Policy mandates the Government to come up with policies and legislation that will protect children from inappropriate content and upholds national values.
Currently, the Computer Misuse and Cybercrimes Act addresses this issue partially, with the proposed amendments to the Films and Stage Plays Act set to address this issue further.
Considering the scale of proposals and sweeping changes brought by the Policy, there will definitely be challenges in implementing it. Key among these is the need for extensive legislation to cater for the proposals tabled by the Policy. A lot of the proposals and requirements contained in the Policy have previously not been legislated over and hence, a lot of legislative work will be needed to implement them. This might consequently delay the implementation of the Policy and its proposals and therefore leave its desired objectives unmet.
Another major challenge is the cost implication of implementing the Policy and its proposals. Proposals such as building data centres, funding the Venture Fund and even initiating the legislation process are all costly endeavours that will require huge allocations from the National Treasury.
The Policy is without doubt set to bring sweeping changes across the ICT industry in Kenya. However, extensive legislation will be needed to implement and regulate some of the proposals contained in the Policy as well as address certain issues raised within it.
It will be interesting to see what form and substance such legislation will take and how soon it will be enacted. Stakeholder engagement will also be key in this legislative process and it will be interesting to see what feedback is given and whether it will be adopted going forward.