The e-transaction law and the use of digital technology by the Government and the business community will be a major casualty or “collateral damage” in the ensuing battle between Parliament and media houses on the Kenya Communications (Amendment) Bill 2008, also known as the ICT Bill.
No-one is talking about the part of the Bill which seeks to regulate business on the internet and through the use of other modern technologies such as the mobile phone.
The discussions have focused on content and administrative issues. The media are opposed to the enactment of the Bill and, once again, the key protest words — “gag”, “punitive” and “draconian” — are in the air. They say the Bill should not be signed into law and needs redrafting.
Ideally, no one will have any issue with the section that seeks to give legal validity to Safaricom’s M-Pesa money transfer system, electronic communications and e-commerce as well as privacy and data protection online.
This is because everyone realises that communication these days is much more than passing a social message; it is the backbone of modern business.
All over the world, the standard practice is to have a separate law for the internet’s virtual world.
By bundling electronic legislation with that of broadcasting we create an “omnibus law” that will be difficult to administer even if it is enacted into law. Some people may argue that technology is converging and, therefore, the laws should also converge.
On the surface, this sounds logical but in practical application, the administration of specific laws, especially those dealing with technology and technical issues, ought to be left in the hands of experts.
Although the M-Pesa, for example, rides on a communication infrastructure, it is not about communication, at least as we know it. If anything, it is more about finance and banking, so Central Bank is in a better position to administer legislation on M-Pesa and other e-commerce-related laws.
The heat generated
M-Pesa has taken Kenya by storm because of its convenience, so the heat it is generating is normal. This is what is expected when technology begins to work because no one — not even people who invent or propagate it — will ever know everything it will or will not do.
And now that someone has innovatively used the mobile phone to accomplish some task that initially was the preserve of banks and post offices, the best reward we can give is an urgent enactment of law to ensure the system is fair to all users.
And the online law needed is not for sorting out Safaricom’s innovations. The business world and governments are waiting for Kenya’s cyberlaws.
When the law of contract states that communication must be in writing, does an electronic equivalent meet this condition? How will the Government regulate the purchase of goods and services online?
If such laws are not enacted, international business will shun Kenya as a risky destination for e-commerce. Tourists will want a redress mechanism if something goes wrong with their credit card transactions.
Uganda has specific legislation for electronic signatures and computer misuse, while Zambia has enacted a cybercrime law. Most of such countries do not have to reinvent the wheel in formulating internet laws; they just follow the European Union Convention on the cyberlaw.
Considering the rise in cybercrime worldwide, the need for internet law is critical and urgent. Criminals exploit the convenience of computer networks that do not recognise national boundaries to launch attacks in faraway destinations.
In May, this year, 33 people were charged in Los Angeles with phishing crimes committed in the US and Romania.
The scheme involved sending e-mail messages that look like official correspondence from banks or credit card vendors to people and making them enter their account number details in a bogus website.
The current issue of TheEconomist magazine, has an interesting story titled Marching off to War, which details how cyberwar took place alongside a real military operation in the recent Russia-Georgia conflict.
It warns that criminals may upset telephone and emergency services.