Every year for the past 6 years we take a trip down memory lane from an ICT Law and Policy POV, here is 2016, 2017, 2018, and 2019. We didn’t have one for 2020 unfortunately due to unforeseeable circumstances.
Here are the top 9 legal and policy changes, introductions, and developments in the tech and telecoms ecosystem, highlighting what stood out for me.
- Alleged Fake News arrests, porn to be made illegal and new Cyber Crimes unit under the Computer Misuse and Cybercrimes Act.
In 2021, blogger and tea master Edgar Obare was arrested by the Directorate of Criminal Investigations (DCI) and arraigned in court for Publishing false information charges as well as activist Mutemi wa Kiama for publishing infographics and joining the #IMFStopLoaningKenya conversation on Twitter. Through Gazette notice dated 16th April, the Computer Misuse and Cybercrimes (Amendment) Bill, 2021 proposed to criminalize pornography creation, publication, dissemination, and consumption. We also saw the establishment of the National Computer and Cybercrime Coordination Committee (NC4).
- Law enforcement agencies embrace social media platforms.
- Kulipa ushuru ni kujitegemea?
As has featured in other yearly reviews, each year through the Tax Laws Amendment Bill and/or Finance Bill the sector witnesses new taxation impositions such as the Digital Services Tax which Kenya’s Revenue Authority (KRA) clarified did not apply to Kenyan residents this year, (Previously, the DST regime applied to both residents and non-residents who fell under the bracket of Digital Service Providers, digital marketplace providers, and appointed tax representatives), increase of the excise duty charge on telephone, wifi, and internet connectivity from 15% to 20% in July, with regard to minimum tax the High Court in Machakos in September declared it unconstitutional for subjecting taxpayers to double taxation and was found punitive in nature.
We also saw KRA seek to enhance its revenue collection obligation through proposed lifestyle audits on social media which interestingly led to a 60% increase of tax compliance following the social media buzz on the same.
- Making data protection a reality.
Following the appointment of the Data Protection Commissioner Ms. Immaculate Kassait last year and her office’s operalization in 2021, we saw the introduction of Data Protection Regulations which sought to implement the law and issuance of more specific guidance notes on the handling and management of personal data in Kenya through extensive public participation.
We also noted that several Kenyans had been improperly registered as political party members when the Office of the Registrar of Political Parties publicized the party membership lists in June with several people actually filing complaints to the ODPC.
- Regulation of social media platforms, registration of bloggers and the Telco dominance conversation continues …
There are two bills that seek to amend the overarching law on the telco space, the Kenya Information and Communications Act. The first proposed by Hon. Malulu Injendi, sought to regulate social media platforms, introduce a fact checking obligation for social media users, create a registration framework for bloggers and a code of conduct. This seems to have stalled as at 2/10/2019 and the Committee on Communication, Information and Innovation recommended that the Bill should not proceed due to its unconstitutionality on Privacy and freedom of expression concerns.
The second by Hon. Elisha Odhiambo proposes for the separation of such other businesses that licensed telcos undertake from the telecommunication business and compensation for call drops. While the latter underwent its 2nd reading on 4/3/2021 there was little engagement with MPs expected to vote to either approve the Bill to proceed to the Third Reading and final stage or reject it in its entirety.
- Appointment of new Communications Authority Director General
In September, Ezra Chiloba was appointed the new Director-General for ICT regulator the Communications Authority of Kenya (CA). My senior and industry trailblazer Mercy Wanjau had been the DG since 2019 but in an acting capacity. With Mr. Chiloba’s entry into office, we have seen more public-facing engagement on the Authority’s social media platforms.
The CA in 2021 also issued strong regulatory decisions such as fining Homeboyz Radio for non-observance of standards of good taste and decency in their broadcast in discussing the gender-based violence case of Eunice Wangari that saw her being thrown from a window on the 12th floor before landing on the ninth floor, FM broadcasting licenses revocation for non-compliance, TV broadcasting suspensions, proposed Guidelines for Addressing Counterfeit, Stolen, and Illegal IT devices in the country and a review of mobile termination rates and fixed termination rates.
- USF Phase 2 roll out
In February, the CA awarded lots to five telecommunications service providers; Safaricom, Airtel, ATC Kenya, Alan Dick, and Seal Towers to roll out telecommunications cellular mobile network infrastructure and services in 101 sub-locations across the country.
The Universal Service Fund (USF) seeks to promote communications infrastructure and services rollout in rural, remote and under-served areas across the country. It is funded by mandatory contributions by licensees and focuses on key areas which would typically not be feasible or viable for telcos to invest in due to the capital-intensive nature of telco infrastructure.
- Digital lending apps regulation
With the recent advances in technology and ongoing innovations, lending through digital channels, particularly mobile phones, has grown significantly in Kenya. However, concerns have been raised by the public about the predatory practices of the unregulated digital credit providers, and in particular, their high cost, unethical debt collection practices, and the abuse of personal information.
Following Presidential assent on December 7, 2021, the Central Bank of Kenya (Amendment) Act, 2021 now provides the Central Bank of Kenya (CBK) with the powers to license and oversight the previously unregulated digital credit providers. CBK has now published proposed regulations for public consultation on licensing, governance, and credit operations of Digital Credit Providers (DCPs).
- ICT Policy Guidelines and Local Shareholding Requirement in ICT
On April 9, 2021, the Cabinet Secretary for Information, Communications and Technology, Innovation, and Youth Affairs published an amendment to the National Information Communications and Technology (ICT) Policy Guidelines, 2020 (the 2020 ICT Policy). The 2020 ICT Policy requires all companies providing ICT services to have at least 30% substantive Kenyan ownership. While there have been several conversations and discussions seeking to clarify the specificity, applicability and scope of the requirement, it appears that GoK’s intention for Local Shareholding remains.
2022 being an election year for Kenya we expect to see more regulation and legislation around cybercrimes, management of critical infrastructure, consumer welfare and misinformation or information sharing regulations.
Happy New Year and Happy Holidays!