Pursuant to the Business Laws (Amendment) Act 2020, which we discussed in detail here, the Communications Authority (CA) issued a public notice on 1st September 2020 calling for all foreign Electronic Certification Providers (E-CSPs) to apply for recognition of their services in Kenya.
Under the Kenya Information and Communications Act (No. 2 of 1998) (KICA), electronic signatures are recognized in law and may be used to execute all documents except wills and negotiable instruments. The KICA makes a distinction between electronic signatures and advanced electronic signatures, with the latter having specific qualities that make it more reliable and enable it to carry more weight under law. Please refer to our discussion on validity of electronic signatures here.
The need for certification of electronic signatures arises under the Evidence Act (Cap. 80), which provides that in order to ascertain whether an electronic signature is that of a person by whom it purports to have been affixed, the court may direct that person or the certification service provider to produce the electronic signature certificate. A digital certificate issued by an E-CSP confirms the identity or other significant characteristics of the signatory and contains the public key of the signatory.
In accordance with the KICA (Electronic Certification and Domain Name Administration) Regulations, 2010, the public notice invites foreign E-CSPs to send in their applications for recognition to the CA by 30th September 2020. The foreign E-CSPs should ensure that they fulfil the requirements for licensing, which are that they:
- are authorized to issue digital certificates in their country of origin;
- comply with internationally acceptable standards and requirements under KICA and its Regulations; and
- have established a local agent to provide certification services.
With the CA's tendency to strictly apply the law, it remains to be seen whether foreign E-CSPs without local agents will be allowed to operate in Kenya by being granted recognition. Most E-CSPs are foreign entities with no local presence. Taking into account the spirit of the Business Laws (Amendment) Act, it will be interesting to see whether the CA is inclined to waive this requirement to ease business operations. Given the emphasis on local investment in the recently issued National ICT Policy Guidelines (2020), this may not be likely.
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