Legal Crystal Ball: Top Focus Areas for ICT Policy and Law in 2020


Attempting to get back on this and make it a regular article since the first (and only) one in 2018, a personal fave, The Bitcoin Bubble and Other Stories; Number 5 will shock you!

Looking into the crystal ball, together with my colleagues Nzilani Mweu and Mutindi Muema, we believe it’s safe to say that certain things will happen in 2020 in terms of the tech policy and legal space.

Here’s our top 8 prediction areas to look out for in 2020 …

8. Safaricom expands footprint into Ethiopia

According to Ernst and Young report, Ethiopia stood as the largest recipient of Foreign Direct Investment (FDI) within the East African region.

In line with this, we have seen telco and mobile money service provider, Safaricom actively attempt to enter the Ethiopian market that had been long closed off and preserved for the Government owned telco monopoly Ethio Telecom. Being the leading industry player, we anticipate a new dynamic in the region also anticipating the conclusion of Airtel Kenya and Telkom Kenya merger.

The parties recently filed a review of their proposed merger to the Competition Authority of Kenya over merger conditions.

Also, on the money market front, it will be interesting to see the shift in mobile money engagement following The Communications Authority of Kenya (CA) decision to drop Equitel from the list of mobile money services it regulates, declaring it a banking product. The authority says this was necessitated by the fact that there was a decrease in the value of transactions as well as indicators on mobile commerce transactions.

7. Re-introduction of the Huduma Bill?

The Government rolled out the huduma namba registration campaign last year amidst court battles, injunctions and a lot of civil society activism.
The Huduma Namba dubbed by Government the “single source of truth” is to be the official government-issued document for identification and a requirement for all transactions – to register as a voter, access universal healthcare, apply for a passport, apply for a driving licence, register a mobile phone number, pay taxes, transact in the financial markets and even open a bank account.

The Government drafted a Huduma Bill last year and held one public participation forum at the kenya School of Government to collect public views on the same.

We expect to see further developments following yesterday’s court decision to the effect that Huduma Namba is lawful but the government can only roll it out with adequate legal provisions on data handling.

Government’s statement also appears to disregard the requirement for an appropriate legal framework as set out in the judgement stating that plans to issue citizens who registered last year with Huduma cards will commence immediately.

6. Taxation of the Digital Marketplace

The Finance Act 2019 broadens the Income Tax net to include income accruing through a digital platform that enables direct interaction between buyers and sellers of goods and services through electronic means.

This amendment clarifies the Kenya Revenue Authority’s powers to both demand and collect taxes accrued via online business whether resident in Kenya or not as long as the business have sold electronic or actual goods/services to Kenyans.

Later in 2019, KRA put out a call for Expression of Interest by any firm willing and capable to help KRA build a digital platform monitoring system to help implement the collection of VAT and Income tax from the digital marketplace.

We expect to see developments in this area as KRA (which is waiting for regulations from the Cabinet Secretary of Treasury) clarifies exactly how taxes from the digital marketplace will be collected.

5. Impeding regulation of mobile lending Apps

Last year Parliament and National Treasury extensively commented on the issue of unregulated mobile lending applications. 

Seeing that Parliament repealed the banking interest cap rate in a bid to release more funding to MSMEs and shelter them from unfair credit terms, we anticipate that Parliament and National Treasury will finalize their consumer protection efforts by providing some sort of regulation, guidance or policy for mobile lending applications.

It will be interesting to see what regulatory reforms are proposed and implemented.

4. Restructured Government Functions – Ministry of ICT now in charge of Youth Affairs

This January, President Uhuru Kenyatta announced the reconstitution of the previous Ministry for ICT to Ministry of ICT, Innovation and Youth Affairs.

According to Mr Joe Mucheru, CS, this reconstitution is expected to result in the integration of Youth in leadership positions, the inclusion of the youth in all socio-political and economic activities, deliberate effort from Government to mobilize loans for Youth to enable youth to invest in enterprises as well as the expansion of opportunities available for the Youth.

We expect to see new policy directives and regulatory developments to actualize these intentions.

3. Enforcement of Kenya Data Protection law

Kenya finally got its first cross-cutting data protection law which ushers Kenya into the league of states that is prioritizing the protection of citizen privacy and allowing persons to decide what data about them is used for.

The law creates the Office of the Data Protection Commissioner. It will be interesting to see what this office has in store for privacy issues around the telco sector, unwanted SMSes and even security details collected when entering business premises and particularly the newly rolled out facial recognition technologies currently in use such as at One Africa place.

In addition, we expect the drafting of Regulations to the Act to commence soon, especially in light of the court decision on the Huduma Namba that requires appropriate protections for data collected to be put in place.

2. Approval of use of Drones

The use of unmanned flying vehicles popularly known as drones for personal purposes is currently prohibited under Kenyan law and a conviction upon being prosecuted for violating this law attracts a hefty fine of one hundred thousand or imprisonment for up to 12 months.

Parliament invalidated the proposed Remote Piloted Aircraft Systems Regulations 2017 last year where the committee expressed concerns over privacy, minimal public participation and inconsistency in the application of fines.

However in November 2019, The Kenya Civil Aviation Authority announced its decision to review its policies on the use of drones. As the desert locust scourge continues to spread across the country, there have been proposals to utilize technology to control their spread and one of the most viable options would be use of drones.

1. LSK Elections; Will Lawyers Embrace Technology (more)?

The Law Society of Kenya is holding its leadership elections this year. The new leadership regime will be in office for the next two years and we have seen most candidates vow to embrace the use of technology in the delivery of legal services to members as well as the public.

The LSK has attempted to digitize several services already and we look forward to seeing what the new office holders implement to improve service delivery.

Do you have any issues or matters you believe will happen in 2020? Do let us know below!