The Cabinet Secretary for Information, Communication, Technology, Innovation and Youth Affairs (the CS) recently published the National information Communication and Technology Policy Guidelines, 2020 (the Policy), in the Kenya Gazette on 7 August 2020. The Policy sets the official position of the Kenyan government on the ICT sector. The Policy will not only have an impact on the development, reform or revision of laws and regulations in the sector but also affect how the affected regulators in the sector will engage with, interpret the law and supervise industry players in the sector.
The Policy encourages Kenyans to participate in the ICT sector through equity participation. To this end, the Policy makes it a requirement for a company to have at least 30% substantive Kenyan ownership in order to be licensed by the Communication Authority (the CA) to provide ICT services in Kenya. This is an increase from the 20% currently required of telecommunications licensees under law. This change will not affect broadcasters, who are already required to have 30% local ownership by the CA.
Furthermore, corporate shareholders without majority Kenyan ownership will not be considered as constituting part of the 30% requirement.
The Policy gives all companies licensed by the CA a period of 3 years to meet the local equity ownership threshold. Where there are appropriate justifications and upon application by the company, this requirement may be extended by 1 year. It is not clear whether one will be able to seek multiple extensions.
Promotion and Protection of Local Skills, Innovation and Data
In a bid to promote and protect the local ICT industry in Kenya, the Policy indicates that:
- the government will support and enable the development of a robust technology entrepreneurship ecosystem in the country through an ICT Co-Fund; and
- Kenyan built solutions will be preferred over any other solution in the award of public tenders. Where there are no local businesses that meet tender requirements, the successful tenderer must provide adequate proof that they will implement a skills transfer program to local firms and personnel as part of the tender award process.
The CA is tasked to oversee and regulate infrastructure to be built with public funds. Infrastructure built with public funds will be available for use by Kenyan private and commercial operators on fair and equitable terms. A legal framework for a fair use policy will be developed through which privately developed infrastructure may be licensed to another operator, on fair commercial terms.
Data and Data Centres
The Policy includes compulsory availability of government services online, and the efficient and full delivery of such services at all times. Cognisant of the risks involved, the Policy indicates that Kenyan data emanating from government services should remain in Kenya, and any such data should be stored safely and in a manner that protects the privacy of citizens, which is in line with the provisions in the Data Protection Act, 2019. The Policy also requires regulations be enacted specifically ensuring that data is processed fairly and lawfully, in accordance with the right of citizens and the relevant data protection laws.
The Policy also foresees the development of guidelines and standards for current and future data centres. The government is required to ensure the availability of basic infrastructure for approved data centres, including but not limited to, reliable grid power and access to the national publicly owned data transport backbone. The government will also promote, encourage and licence private sector investment in neutral data centres by companies incorporated for that purpose.
Universal Access of ICT Services and Infrastructure
The Policy also caters to people with disabilities by mandating the government to ensure that persons with disabilities have full accessibility. Accordingly, the government will adopt measures to ensure both public and private entities provide information and services in accessible and usable formats for persons with disabilities.
The government will provide incentives for majority Kenyan ICT equipment manufacturers in a bid to ensure they remain competitive in the ICT sector. Other incentives to promote pocket friendly innovation as contemplated in the Policy include the designation of ICT incubation centres in each county that are duty free zones.
Protection of Children
Whilst the policy seeks to promote the development of high quality, easily accessible, relevant local digital content, it also intends to ensure that the government will create and enforce policies and legislation that protects children from inappropriate content and upholds national values.
Please refer to this article for a deeper analysis on the ICT Policy.
Originally published 01 September 2020
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