ICT Bill too shallow to effectively regulate nascent technology sector

Kenya has made a number of strides in reforming its communications law as there are a number of proposed amendments to existing legislation.

In June, an attempt was made in drafting an ICT Bill 2016, which has met a lot of resistance from various stakeholders, including the Information Communications and Technology ministry. It is notable that the Bill did not originate from the parent ministry but from an MP.

The main focus of the Bill is on regulation of the ICT experts through a professional body. It also provides for registration, training and licensing technology practitioners.

The spirit of the Bill is not bad in itself, however, what has generated a lot of public outcry is the strict standards that practitioners must meet before they can be licensed.

A practitioner must have a minimum of an undergraduate degree or a diploma as well as pass the institute exams. This is deemed to be too strict for most Kenyan practitioners who do not have a degree or the necessary qualifications as set out in the Act.

I will use the example of a friend who is also an innovator. He has a degree in finance but is able to innovate and come up with various proto types in different sectors.

He has no academic ICT qualifications but learnt his trade while working as the finance director at a software firm. The Bill does not recognise him as an ICT practitioner reason being, he has no academic qualifications. This is a defective way of assessing who qualifies to be in the sector.

We must remember that ICT is not only a profession but also a skill and a trade that can be practised without necessarily having the academic qualifications. Therefore, the strict qualifications should be amended to allow qualifying persons to be registered.

The Bill is almost a replica of the human resource and psychologist professions laws. The professional bodies in all instances have similar powers as well as the offences.

Implementation mechanism

In my view, such drafting is not well thought out and has little impact in the market. Despite the human resource, counselling and psychologists professional laws being passed, there has been little or no impact in those sectors. We still have many persons practising without registration and little is being done on enforcement.

The main aim of drafting any law is for it to have impact in the society. So how useful will the ICT Bill be if it is passed into law?

ICT societies and associations have welcomed the law, arguing that it will set standards in the sector and introduce professionalism. I agree that a law whose ambit is to regulate any profession is welcome, however, for it to be effective it must have properly laid out implementation mechanism.

The proposed law would be effective if implementation and enforcement is well considered.

It has been argued that the Bill does not consider the ICT policy which should be the guiding document in drafting the law. This is a matter of great concern. The Bill is very shallow and has left out a lot of provisions of the policy.

The Bill has also left out constitutional issues such as freedom of information, consumer protection, data security and intellectual property laws, amongst others.

It only focuses on regulation of the ICT profession. It excludes a lot of views from stakeholders and probably the ICT law should originate from the policy formulators, that is, the parent ministry.

Ms Mputhia is the founder of C Mputhia Advocates. [email protected].