Electronic Signatures in Kenya – Legality, Data Protection and Benefits
The Communications Authority of Kenya (CAK) has notified all foreign Electronic Certification Providers are required to apply for recognition as Electronic Certification Service Providers (E-CSPs) within 30 days 1st September 2020. The purpose of the notification is in furtherance of the enactment and operationalization of the Business Laws (Amendment) Act 2020. As per the notice from CAK, the impact of the amendments under the Act is two-fold:
a) Recognition of electronic signatures, documents and registries; and
b) Reduction of formalities, increasing transparency and protecting businesses.
Legality of electronic signatures?
Electronic signatures are soon to become popular choice of signatures. There are a whole host of acts of Parliament which have been amended by the Business Laws (Amendment) Act 2020 to allow execution and signature of documents using electronic signatures, specifically “advanced electronic signature” as follows:
1. Law of Contact
2. Kenya Information and Communication Act (KICA)
3. Survey Act
4. Registration of Documents Act
5. Land Registration Act.
Under the Companies Act 2015, “sign” includes sign by means of an electronic signature.
An “advanced electronic signature” means an electronic signature which is:
(a) uniquely linked to the signatory – means the electronic signature must solely be attributed to the person signing and no other person.
(b) capable of identifying the signatory – means,for example, a set of numbers which can directly identify the person signing.
(c) created using means that the signatory may maintain under his or her sole control – For example, this can be login details of the signatory which are not shared with any other person; and
(d) linked to the data to which it relates in such a manner that any subsequent change to the data may be detectable.
There are certain documents where electronic signatures are either not permitted or it is best to use ‘wet’ signatures. For example in wills and affidavits which need to be witnessed or notarised. Before embarking on signing a document electronically it is best to seek advice of an expert to ensure validity and use of an electronic signature.
Electronic signatures and data protection
Under the Kenya Data Protection Act 2019 (DPA), which came into force in November 2019, all data identifiable to an individual (such as name, date of birth, financial information or medical records) has to be protected. One of the lawful basis to process data under the DPA is to obtain the individual’s consent. E-signature technology can be used by organisations to conveniently capture consent and demonstrate precise details of the consent.
What are the other benefits of digital signatures?
1. Working faster – A document which needs to be signed digitally simply needs to be uploaded in a suitable electronic signature software and sent to the recipients for signatures by email.
2. Confidentiality – A document signed electronically is not required to be printed and can be safely stored on the cloud. This is to maintain integrity and confidentiality of the document.
3. Convenience – Most digital signature software providers have facilities for electronic signatures to be appended from a mobile device.
4. Avoid unnecessary meetings and adhere to social distancing during COVID-19 – The need to for ‘wet signatures’ in the new era of COVID-19 can be avoided thus reducing close physical contact between individuals.
5. Save on printing and storage space –With home and online working on the rise, there is finite space to store documents. With digital signatures, printing is almost eliminated, and the only storage required for a signed document can be on a cloud based software or on your external hard drives.
Conclusion
Once the CAK approves Electronic Certification Providers, there may be a range of Electronic
signature providers to choose from. It is important that businesses which adopt the new ways of electronic signatures, ensure that these providers are compliant with the Data Protection Act 2019 as signatures are also personal data which needs to be protected.
Amit Gadhia
Advocate of the High Court of Kenya.
Solicitor of England and Wales (practicing freelance).
Certified International Privacy Professional-Europe (CIPP/E).
Certified Company Secretary (Kenya).
Corporate Governance Professional (ICSA – UK)
