Should we really regulate tech?

This article was first published in the Nairobi Business Monthly magazine September 30, 2016.

Lady Justice Mumbi Ngugi of the High Court of Kenya declared, in May, section 29 (b) of the Kenya Information and Communication Act unconstitutional. This provision of law was found to be vague by the learned judge. Geoffrey Andare, a web developer who was charged under that Section in 2015 successfully challenged its constitutionality and the charges against him were dropped. This was the case for other bloggers who had been arrested for the offense this year.

Fast-forward to July and a Bill whose purpose is to regulate ICT practitioners surfaced. Its vagueness is stupefying to the extent that it may appear like there must be a vague law that touches on ICT at any given time.

Laws are not created to be aspirational documents and it is unfair to everyone including lawmakers to engage in acts of futility. This is why understanding the subject matter of a law is important. Information and communication technology is not only complex but also disruptive. It is a wave, which has destroyed careers at the same rate that it has created them.

The proposed law in Section 2 states the definition of ICT which ropes in all the possible uses of the technology including collecting, storing, processing, using and sending out of information. The definition includes the use of computers, mobile apparatus or any telecommunication system in the aforementioned activities. Further in the same Section, ICT practice is defined as practice of ICT for a fee or gain either in kind or cash while a practitioner is an individual who will be registered under the law to practice. From those definitions, pretty much everyone in this digital age becomes an ICT practitioner. Why? We use computers at the work place – practice for gain. Doctors use computerized machines for diagnosis- practice for gain. Use your phone to place a bet for a soccer match – practice for gain. The Bill ropes in everyone who uses technology and it raises the various jurisprudential questions. What mischief does it seek to remedy by regulating use of ICT by everyone?

Section 6 of the Bill provides for an institute and states it functions, which are already being executed by the Ministry of Information and Communication Technology and the Kenya ICT Authority. Global market forces also play a big role in enforcing some of these functions such as ensuring high standards amongst persons who engage in ICT practice. In our current digital world, enterprises compete globally. That is evidenced by the heavy use of social media and email servers that are not locally owned. Hence purporting to enforce standards for ICT nationally while the market is forcing us to catch up with the rest of the world will be jocose.

The institute in the proposed legislation will engage in protecting, assisting and educating Kenyans on matters to do with the profession of ICT. While the protection aspect of that function can be supported by Article 46 of the Constitution, existing government bodies such as the Communications Authority of Kenya already have consumer protection regulations to execute that role. Other protection mechanism exist in the market where information spreads as fast as digital media, forcing those who engage in ICT practice to prioritise user experience and consumer needs. The ICT Authority has been engaging in education activities on ICT, which renders the institute’s proposed function redundant.

On proposed function of approving of courses and administering examinations, it may be argued that the institute intends on creating uniformity in terms of qualifications like lawyers and accountants have. This function leads to the next one, which is, registration and license of ICT practitioners who according to Section 15 must have a degree and three years of experience. These requirements show a clear lack of understanding as to how the ICT industry works. Bill Gates, Steve Jobs, Mark Zuckerberg and many other prolific innovators in the ICT world have no university degrees to their names but they have changed the world. Had they been Kenyan at this time, they would not be allowed to engage in the practice of ICT. The ICT labour market tends to pick on the brilliant innovators who can do the job rather than individuals with papers. That is why it has been able to grow so fast because it is open to everyone who has something to offer. Placing restrictions based on academic qualification will outrightly amount to stifling innovation because, now even school going children are coding and making applications.

The Bill also states that the proposed institute will act as an arbitrator in any disputes between a licensed ICT Practitioner and a client. This proposal seems to be off, considering we have Chartered Arbitrators in the country and law courts. From recent history of the industry, disputes seem to be between those who engage in the practice of ICT with the example of the dispute between the brains behind Angani Cloud. The institute would have been better placed addressing such disputes because they affect the growth of the ICT industry. It would also have proposed to promote the industry internationally rather than itself though almost all listed functions are and can be executed by the existing bodies.

Sections 20 and 23 of the Bill are a noose on the necks of many in the industry currently since it insists on one having a license and prohibits those who won’t have it from recovering fees for ICT services. In our current corporate world, companies have invested in social media managers who handle their social media. No course in school teaches this yet it is a service that is so crucial to today’s business where digital presence is key. The people hired for these jobs fall under the scope of this Bill by virtue of engaging in ICT practice for gain. So will the enactment of this law spell doom for these people who engage in ICT practice in a field that is not taught in any school? Will it be illegal to be a blogger or have a YouTube channel? What about those who work for international tech companies remotely? Will this proposed law apply to them?

Lon Fuller in his book the Morality of Law writes about King Rex who promulgated a law that required his subjects to appear before the throne once summoned in ten seconds. His subjects responded by sending him a leaflet which read, “To command what cannot be done is not to make law; it is to unmake law, for a command that cannot be obeyed serves no end but confusion, fear and chaos.”

To criminalise the use of a computer or mobile phone for gain is not to make law. It is to unmake law. It is forcing our Silicon Savannah to drink hemlock. It is to command that which cannot be obeyed, enforced and even investigated, which is causing confusion, fear and chaos. The brains behind the Bill should really reconsider their stand and if possible, withdraw the Bill. If not, they should engage stakeholders. The Cabinet Secretary in charge is on record claiming that the Bill did not come from his Ministry and experts have found its provisions contradictory to the National Information & Communications Technology (ICT) Policy of 2016. As we embark on the journey of achieving Vision 2030, it is important for all of us to be on the same page so as to work together. For it is in our best interest as people that we progress together.

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