2022: A Review through an ICT Policy Lens in Kenya

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Every year for the past 7 years now we take a trip down memory lane from an ICT Law and Policy POV, here is 2016, 2017, 2018, 2019 and 2021. We didn’t have one for 2020 unfortunately due to unforeseeable circumstances. We also typically try to preempt and make policy predictions for the coming year.

2022 was generally a fundamental year in the tech policy space not only in Kenya but also globally. Top of mind, we saw social media companies’ growth stunted. This was partly because of Apple’s new privacy change. We also saw the growing threat of search engine leadership by the relatively new social media platform TikTok, and industrywide layoffs taking center stage for the first time partly due to the excessive hiring during the pandemic.

In Kenya, the 2022 general election was characterized by widespread misinformation and disinformation, after which technology was put on trial at the Supreme Court during the presidential petitions. Moreover, we witnessed a dramatic change in app usage with WhatsApp topping the list of the most downloaded apps on Google’s Play Store.

Together with my senior Victor Kapiyo – Legal Practitioner and Researcher – here’s a comprehensive list of the top legal and policy changes, trends, and developments in the tech ecosystem in 2022.

‘Vindu Vichenjanga’ a New government and Ministry Name

With every election, comes new leadership.

Firstly, we saw the end of term for former Ministry of ICT officials led by former Googler CS Joe Mucheru. Eliud Owalo, was named the new ICT Minister. Gleaning from Abuya’s words in this Piece Who Is Eliud Owalo, while Mucheru was an industry insider, … ‘His successor, on the other hand, is more of an economist, strategist, and consultant. While his work may have made him cross paths with ICT-related matters, Mr. Owalo has not been explicitly limited to ICT issues in his career life.’

We also saw the elevation of Eng. John Tanui long time (almost 8 years) Chief Executive Office at Konza Technopolis Development Authority (KoTDA) as the Principal Secretary at the ministry. Before joining the Authority, Eng. Tanui was Deputy Country CEO and Vice President Huawei Technologies, and has worked in several African countries and China. While it’s been hard to quantify KoTDA’s dream realization, as an industry insider with deeper knowledge, it’ll be interesting to see how the dynamic duo steer the ship into the future.

With the regime change also came the renaming of the Ministry. Previously known as the Ministry of ICT, Innovation, and Youth Affairs, it is now the Ministry of Information, Communications, and the Digital Economy. Closely linked to the focus and shift on the digital economy, true to the new government pledge, the Hustler Fund was launched and is currently active. From a tech policy standpoint, it was interesting to note that Jamii Telecom the fourth mobile network provider was not listed/included as one of the networks that may be used to disburse the funds. Perhaps because they don’t have a mobile money license?

Meg Whitman, the new US Ambassador to Kenya was also appointed. Ms. Whitman is most known for steering multinational e-Commerce giant eBay to astronomical growth and for leading Hewlett-Packard according to the Citizen. What these new changes mean for the Kenyan Tech ecosystem, we wait and see.

Technology on Trial; Litigation and Dispute Resolution

With the contested presidential election results, came the Presidential Petition at the Supreme Court. As always, one of the issues at the fore was on the use of technology. The Kenya ICT Action Network (KICTANet) observed the election and published a comprehensive report on the key findings of its election observation mission during the August 9 election.

While several progressive steps were noted in the use of technology by the Independent Electoral and Boundaries Commission (IEBC), and by the public, several challenges related to election technology were noted. These included poor internet network coverage, staff capacity gaps in handling KIEMS kits, late training of election clerks, failure of some KIEMS devices, delays in result transmission, and non-identification of voters biometrically using KIEMS, among others.

2022 also saw landmark cases filed against big tech firms such as Uber Kenya and Meta Platforms Inc (which owns platforms Facebook, Instagram, and Whatsapp) focusing on platform accountability and intermediary liability. The first case involves a former Facebook content moderator and South African national who worked for a local outsourcing company – Sama based in Nairobi, alleging multiple violations of Kenya’s Constitution including forced labor, human trafficking, and union busting.

Again, Meta was sued for $2bn in Kenya’s High Court for fueling ethnic violence in Ethiopia by two individuals and a rights group. The petitioners seek changes to Facebook’s algorithm and claim that Meta responded inadequately to hateful content on its platform, especially in relation to the war in Ethiopia’s northern Tigray region. It’s interesting for us that the suit was filed in Kenya given the local entity argument and jurisdiction question.

On its part, Uber appealed to Kenya’s apex court seeking to annul the new digital taxi-hailing regulations claiming that some aspects were unconstitutional, discriminatory, discouraged to foreign investments and infringed its rights and those of its riders and partners.

Festus Musyoka Wambua, an Uber Taxi driver who sustained an injury while driving, filed a lawsuit against Uber Kenya Limited seeking a declaration that he was an Uber employee and thus entitled to accruing work injury benefits. While his plea was dismissed, the court seemed to infer identification of Uber as an employer (‘There being no rebuttal from the respondent, the Court finds that there is an employer and employee relationship between the 1st respondent and the applicant and the 1st respondent has taken out a cover in favour of its drivers including the applicant in respect of injuries sustained in the course of employment.’) and the basis of dismissal being a technicality of procedure in our opinion.

Lastly, a claim in the small claims court regarding Uber Kenya and Uber BV for alleged fraudulent debit card transactions on a claimant’s account. Most platform providers across Sub-Saharan Africa tend to legally assert the separate legal entity rule that the local entity with a local presence is not in any way associated with larger group companies.

Intermediary Liability is currently on trial in the US Supreme Court too and is the basis of my core work at Harvard, you can read more about it here. The case comes up this month and you can read some of the pleadings so far here.

Data protection and the Right to Privacy

So much has happened in the data protection and privacy sphere in the past year including the enforcement of the Data Protection Act and the registration of processors and controllers by the Office of the Data Protection Commissioner (ODPC). 2022 saw the employment of several key officers and the relocation of the office from the Communications Authority to Britam Towers.

Ms. Immaculate Kassait, the Data Commissioner, led from the front with focused and intent outreach and increased awareness campaigns on data protection including during events such as the Kenya IGF, the Privacy Symposium and on social media such as Linkedin and Twitter.

Related is the increase in data protection practitioners and professionals who have accordingly pulled together and have a number of associations and practitioner groups with the mandatory requirement for entities to have Data Protection Officers.

Late in the year, the ODPC issued its first penalty notice to Oppo Kenya for failing to follow an enforcement notice that was issued against the company. According to the press statement, ‘ODPC on November 3, 2022, issued an enforcement notice against Oppo Kenya (Company) after it infringed on the privacy of a complainant by using their photo on the company’s Instagram account (stories) without the complainant’s consent,” said the Data Commissioner in a statement. Accordingly, Oppo Kenya is, required to pay to the ODPC a penalty of Sh5 million pursuant to Section 63 of the Data Protection Act, and Regulation 20 of the Data Protection (Complaints Handling Procedure and Enforcement).’

Notable Events and a Booming Silicon Savanna

As always, part of the beauty of the tech space and the innovation ecosystem in Kenya for years is the industry events and tech gatherings.

In 2022, amongst many many others, these included the Kenya Innovation week, the Kenya Internet Governance Forum (KIGF), a whole dedicated tech-themed Jamhuri day with various big tech and global executives as guests of the State, the ICT Authority’s Connected Summit, the Lawyers’ Hub’s Africa Law tech festival, Strathmore’s Privacy Symposium, and the Communication Authority’s Cybersecurity conference.

Human capital and Tech Talent

A key part of the tech ecosystem is the tech workers; the devs and tech professionals.

In 2022 there was an influx and focus on tech talent wars with jabs thrown between parties and players. One school of thought opined that big tech and global market leaders were attracting and draining all the country’s talent with another school commending the influx and interest in the ecosystem as an overall win for the ecosystem and economy generally. Microsoft, Google, and Visa all announced their intentions to develop tech hubs, and development centers and proceeded to hire several talented developers. My friend Kirui penned a fantastic piece on this, read more here.

In September, The ICT Ministry through the Information and Communication Technology Authority (ICTA) commissioned the construction of Kenya’s first software factory in Mulot, Bomet County. The software factory is part of the 19 flagship initiatives earmarked in the ten-year Kenya National Digital Masterplan that has been designed to accelerate Kenya’s digital transformation. Mulot area has been a haven for mobile money fraudsters who with the announcement, might be inspired to develop their IT skills for good.

The ICT Authority continued to run the Presidential digital talent programme. The Digitalent is a Public Private Partnership Programme whose key components are skill development, on-the-job coaching, mentorship, training, certification, and ICT innovations. It is a twelve (12) month internship programme whose objective is to develop ICT high-end skills in recent graduates, offer a platform for structured training, coaching, mentoring, and promote ICT innovation and solutions development. Whether some of these initiatives continue with the regime change remains to be seen.

Mergers and Acquisitions in Tech, Media, and Telecoms (TMT)

There were several mergers and acquisitions deals in the ecosystem that any tech M&A practitioner probably had their eyes on.

For starters, it was reported in October that Helios cashed out of its 60% stake in Telkom making the company 100% state-owned. Telkom’s business viability continues to be an industry-wide concern, while its sibling Safaricom launched into the Ethiopian market graced by both Kenya’s president and Ethiopia’s prime minister. You can read about my first-hand Safaricom Ethiopia experience here.

Airtel Africa and American Tower partnered in a fuel-efficient infrastructure deal in October. Under the agreement, Airtel will leverage ATC Africa’s vast portfolio of communications sites and new site and product development capabilities across its footprint in Kenya, Niger, Nigeria and Uganda in support of Airtel Africa’s network rollout.

Airtel Africa also got a $194 million loan from the IFC to support universal and affordable broadband access in Africa and to help connect millions of new subscribers to mobile internet in six African countries. The new financing facility is in line with Airtel’s Africa strategy to increase debt within its operating companies.

African and Kenyan startups were not left behind in the deals front too. Kenyan Startups raised a record US$ 1.05 billion135.8bn from international investors making the country come second on the African continent after Nigeria (US$ 1.2 billion) and followed by Egypt (US$ 810 million) and South Africa (US$ 545). Kenyan startups continued to be on an upward trajectory as reported in April with more deals announced later in the year.

Governance of the Internet and some Global Infrastructure in the 254

Aside from the fact that the global Internet Governance Forum was successfully hosted in Ethiopia, just up north of Kenya for the third time in Africa, Kenya did host it’s own national Internet Governance Forum whose theme was “Resilient Internet for a shared sustainable and common future”. The Kenya Internet Governance Forum (KIGF) hosted by the Kenya ICT Action Network is an annual meeting that brings together various stakeholder groups to dialogue on ICT and Internet policy. While the discussions give soft policy outcomes, the Kenya Internet Governance Forum is a knowledge-sharing platform that informs and inspires policy actors in both the public and private sectors.

In November, the Internet Corporation for Assigned Names and Numbers (ICANN), in cooperation with its regional partners, announced the deployment of a new ICANN Managed Root Server (IMRS) cluster in Nairobi. ICANN is a global non-profit organization that coordinates the Domain Name System (DNS) and plays a key role in ensuring a global, interoperable, and secure Internet. The installation of this IMRS cluster in Africa ensures that Internet queries can be answered within the region, which limits its dependence on networks and servers in other parts of the world. The IMRS cluster also boosts national and regional resiliency by helping root server traffic stay local.

Additionally, in December during the global Internet Governance Forum, ICANN launched the Coalition for Digital Africa, an initiative aimed at expanding the Internet in Africa. The Coalition is an alliance of like-minded organizations committed to building a robust and secure Internet infrastructure to bring more Africans online. The Coalition’s focus is on creating meaningful connectivity throughout Africa with its secretariat based out of Nairobi, a huge win for the country!

With an internet penetration of 42% and mobile penetration of 114.20% as of January 2022, it’s no surprise that most Kenyan internet users are on social media, consuming both local and global content and that has been beautiful to see. For starters, 2022 saw the continued rise of the social media influencer industry with more digital content creators not only coming up but also thriving economically – at least based on what we can see on social media – see what I did there?

Social Media, Local Content, and Digital Platforms Use

Most of the content on social and digital media platforms was so creative, innovative, inclusive, representative, and thoughtful.

My analogy for these platforms to maintain their growth and success trajectory is twofold. First, either increase your user base and increase Monthly Active Users (MAUs) and Daily Active Users (DAUs). Or in the alternative, increase your revenue base by either increasing your subscription fees or introducing a feasible ad revenue model. Africa’s population according to the latest World Bank stats sits at 1.2 billion as of 2021 and continues to grow. Platforms in most ‘developed’ markets have or are about to max out their available users and are actively seeking new audiences. Enter Africa.

Netflix the streaming platform not only activated their local Twitter account with Kenyanisms, had the public policy team meet with the CS of ICT in Nairobi, but also had more Kenyan content such as Country Queen, 40 Sticks, Lusala, Nairobi Half Life, Daisy on the platform, most of which was available globally.

Showmax, Dstv’s offshoot and digital streaming platform with an active presence across Africa was also increasingly active in 2022. With several high-quality local shows, their marketing team had several campaigns targeting the growth of its user base highlighting local shows and content. Interestingly, local channels are also available on Showmax, the fact that they have Multichoice’s extensive already existing infrastructure across the continent makes it much easier to increase its reach.

Spotify also entered the chat group. Spotify the music streaming platform increased its offerings in Kenya. While they recently announced layoffs affecting about 6% of its workforce, they just released their Q4 2022 update where they note that their monthly active user MAU net additions reached a quarterly record-high of 33 million in Q4, and subscriber growth also materially outperformed, exceeding guidance by 3 million net additions. They admit this was strengthened by the Rest of the World and Europe as a result of successful marketing campaigns. Their 2022 Spotify Wrapped in Kenya localized campaign would be a testament to that success.

TikTok – the self-defined entertainment app – continues to grow in leaps and bounds across not only Sub-Saharan Africa but in Kenya as well. TikTok kienyeji anyone? The local team hosted several creator events including the #TopCreator2022 Awards which crowned Kenya’s Dennis Ombachi aka theroamingchef, TikTok Top Creator 2022 Sub-Saharan Africa Winner.

However, in the aftermath of the elections, misinformation and disinformation on social media that was widespread before the election continued, and largely focused on the results of the election. This could have partly been due to the fact that the IEBC portal did not display any text results or statistics, and only had results for the presidential election, leaving out the results of the other 16,094 candidates who vied for the other five elective positions. Moreover, allegations of hacking of IEBC servers were made, which the Commission denied.

When it’s all said and done, 2022 was extremely eventful in Tech and Policy. We barely scratched the surface of all the developments. We have a few thoughts on the key things to look out for in 2023 and we’d love to hear your thoughts, insights and predictions.

Happy New Year!