Electronic Commerce and the Law in Kenya: An Introduction
This semester, we kick off a brand new course for final year undergraduate law students on e-commerce and the law. This course aims at explaining the legal challenges that are posed by electronic commerce. We shall also contextualise and problematise on-going legal/policy developments in Kenya to regulate electronic commerce. In the opening class, the students were asked the following: Identify one (or more) legal issue(s) arising from electronic trading between businesses, consumers, employers, employees and/or governments. Are the existing rules developed to address that (those) legal issue(s) in the paper-based society appropriate for the electronic environment?
E-Commerce Law is the area of law that regulates trading of information, money or goods and services wholly or partially through electronic means, including e-government services. In this context we are particularly interested in several types of electronic trading relationships including: Business to business (B2B e-commerce), Business to consumer (B2C e-commerce), Consumer to consumer (C2C), Employer to employee (workplace communications), Government to business (e-procurement) and Government to citizen, among others.
As a starting point, it is important to note that the terms “electronic commerce” or “electronic transaction” are not defined in the Kenya Information and Communications Act (KICA) and that there are currently no standalone regulations or statutory framework governing e-commerce in Kenya. A proposed definition of ‘e-commerce’ is that it is ‘the buying and selling of goods and services over an electronic network.’ Whereas a proposed definition of an ‘electronic transaction’ is that it is ‘the sale or purchase of goods or services, whether between businesses, households, individuals, governments, and other public or private organizations, conducted over electronic networks. The goods and services are ordered over those networks, but the payment and the ultimate delivery of the good or service may be conducted on or off-line.’However KICA states that “electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. Whereas KICA states that “e-Government services” means public services provided electronically by a Ministry or Government department, local authority, or any body established by or under any law or controlled or funded by the Government.
Despite the lack of a clear definition of e-commerce under KICA, the Communications Authority of Kenya (CA) which is established under KICA, has a clear mandate in the regulation of e-commerce which includes: 1) To facilitate electronic transactions and cyber security by ensuring the use of reliable electronic records; 2) To facilitate electronic commerce and eliminating barriers to electronic commerce such as those resulting from uncertainties over writing and signature requirements; 3) To promote public confidence in the integrity and reliability of electronic records and electronic transactions; 4) To foster the development of electronic commerce through the use of electronic signatures to lend authenticity and integrity to correspondence in any electronic medium; 5) To promote and facilitating the efficient delivery of public sector services by means of reliable electronic records; and 6) To develop sound frameworks to minimize the incidence of forged electronic records and fraud in electronic commerce and other electronic transactions.
At the global level, there are several international organisations that have done significant work in the area of e-commerce. First and foremost, United Nations Commission on International Trade Law (UNCITRAL) who have developed several instruments that have been used by many countries around the world as the basis for e-commerce regulation. These include: Model Law on Electronic Commerce (1996, revised 1998); Model Law on Electronic Signatures (2001) and United Nations Convention on the Use of Electronic Communications in International Contracts, 2005. Meanwhile United Nations Commission on Trade and Development (UNCTAD) has been active in research and capacity-building, focusing on the relevance of e-commerce to development. The Organisation for Economic Co-operation and Development (OECD)has also been involved in e-commerce issues through making action plans, recommendations and guidelines. Other initiatives have come from ITU (International Telecommunication Union), the International Chamber of Commerce (ICC) and the UN Global Compact.
At the regional level, the EU’s latest effort was the 2015 Digital Single Market Strategy which aims to facilitate better online access to digital goods and services and strengthen the digital economy as a drive for growth. The EU also has an E-Commerce Directive aimed at introducing a uniform and comprehensive legal framework for electronic commerce in the EU as well as a set of other legal instruments dealing with electronic signatures, data protection and electronic financial transactions. In the African region, the Common Market for East and Southern Africa (COMESA) through its Council adopted a Model Law on Electronic Transactions which contains provisions on electronic signatures, e-commerce generally, consumer protection, unsolicited commercial communications and online dispute resolution.