Kenya's Legal Framework for Technology and Innovation

Kenya's Legal Framework for Technology and Innovation

This article provides a comprehensive overview of the key legislative frameworks that govern technology laws in Kenya as of August 2024. It highlights the various Acts of Parliament that regulate different aspects of technology, including data protection, cybercrimes, telecommunications, intellectual property, and innovation. Each Act is examined in detail, outlining its purpose, scope, and relevance to the technology sector. From protecting personal data to fostering innovation and safeguarding intellectual property, these laws play a crucial role in shaping the technological landscape in Kenya. This article offers valuable insights into the legal underpinnings of technology in the country.

As of August 2024, Technology Laws in Kenya have yet to be consolidated. Technology laws in Kenya are enacted as the following Acts of Parliament:

1. Data Protection Act of 2019, Cap 24 Laws of Kenya

This Act regulates the processing of personal data and protects individuals' privacy. The Act establishes a public body, the Office of the Data Protection Commissioner, that is mandated to protect personal data and privacy. It regulates the collection, processing, and storage of personal data and those who collect, process, and store it. For example, a telecommunication company such as Safaricom PLC requires a license to collect information from its customers. It must follow rules and regulations as set out in two subsidiary legislations (Data Protection (General) Regulations, and Data Protection (Civil Registration) Regulations) on how to handle and use such data and how to preserve its clients' privacy. This Act provides the parameters to be followed to ensure that the law is observed when collecting, storing, and processing data.

2. Computer Misuse and Cybercrimes Act of 2018, Cap 5 Laws of Kenya

This Act regulates the use of computer systems, facilitates the prevention of cybercrimes, provides sanctions against those who commit cybercrimes, and protects people’s right to privacy, freedom of speech, and access to information. It also establishes a government body to advise the Government on security-related matters touching on various technology sectors, advise the National Security Council on computer and cybercrimes, co-ordinate national security organs in matters relating to computer and cybercrimes, among other matters related to computers and cybercrimes (The National Computer and Cybercrimes Co-ordination Committee).

The Act defines different types of cyber crimes such as hacking/unauthorized access of computer systems, unauthorized access with the intent to commit a crime, unauthorized computer system interference, unauthorized interception, cyber espionage, false publications, child pornography, computer forgery, cyber harassment, identity theft and impersonation, phishing, cyber terrorism, and many more, each with their sanctions. This Act is relevant to the technology law sector as it governs the use of computer systems and protects the rights of those directly or indirectly affected by different uses of computer systems and those using computer systems.

3. Kenya Information and Communications Act of 1998, Cap 411A Laws of Kenya

This Act establishes and regulates the Communications Authority of Kenya (CAK) which is mandated to enhance the development of telecommunication in Kenya.

This Act gives CAK the power to:

Ensure that there are emergency telecommunication services and directory information services in the country,
Protect the rights of Kenyan citizens as they use telecommunications services i.e. ensure fair prices and quality service is provided,
Promote and maintain healthy competition between companies providing telecommunication services in Kenya,
Encourage private investment into the Kenyan telecommunications market,
Promote the expansion of telecommunication services outside of the country by facilitating data and call transmission between Kenya and other countries,
Enable providers of telecommunication services to effectively compete in the provision of their services outside of Kenya,
Grant licenses to persons providing telecommunication services, grant licenses to persons operating in radio communication services,
Grant licenses to persons operating in broadcasting services,
Grant licenses for signal distribution,
Grant licenses to persons operating in postal services,
Grant licenses for electronic certification services,
Facilitate electronic transactions by promoting integrity and the use of authentic electronic records/transactions,
Advise the Cabinet Secretary for Information, Communication, and Digital Economy on matters relating to telecommunications, and advise the CS for Information, Communication, and Digital Economy on laws and regulations affecting the telecommunications and radio communications sectors.

The Act also defines offences related to telecommunications and their sanctions. This Act is relevant to the technology sector because it regulates the use of telecommunications.

4. Industrial Property Act of 2018, Cap 509 Laws of Kenya

This Act regulates patents, utility models, technological innovations, and industrial designs. Software inventions may be patented where they fall under the criteria of patentable inventions under this Act, that is, if they are new, involve an inventive step, and are industrially applicable. The Act also provides for items that are not patentable such as; discoveries, scientific theories, mathematical methods, rules or methods for doing business, surgical treatments for humans and animals, diagnostic methods used for the treatment of humans or animals, mere presentation of information, or methods/treatments for hazardous/life-threatening diseases.

This Act defines the rights and obligations of an owner of an invention, the process of applying for a patent, and the terms of a patent. It, however, also provides that in a case where an inventor is an employee or a person commissioned to perform work that leads to an invention, the owner of the invention is the employer or the commissioner. There is a provision under the Act that gives the government, through certain procedures, the right to exploit one’s patent if the exploitation by the government is good for the public interest or if the patent owner is not exploiting the patent competitively.

The Act provides for the requirements to register a utility model. Utility models are required to be new and industrially applicable but they need not be innovative. Where there are new improvements to an invention in technology, one may register a utility model as opposed to a patent. Utility model licenses are for a shorter term period than patent licenses. The Act provides for processes through which one may convert an application for a patent to that of a utility model and vice versa.

An industrial design, as described by the Act, is the overall outward appearance of a product. The Act provides for the criterion for registration of industrial designs which is that the design must be new. The Act provides for the rights of a creator of an industrial design, the process of registration of an industrial design, the duration of an industrial design certificate, and the renewal process of the same. The Act also provides for what does not qualify as an industrial design such as; designs that are contrary to public order and morality, sculptures, architecture, paintings, photography, and any purely artistic creations. These provisions are relevant to creators of devices and products used in the technology field.

The Act defines technovations as innovations that solve a problem specifically in the field of technology. The Act provides the criteria for registering a technovation, the process of application for a technovation certificate, the use of technovations, remuneration of a technovator, and how to solve disputes relating to technovations. These provisions are relevant to persons in the field of technology creating innovations to solve problems in the field as they provide for the protection of their rights and interests towards their technovation.

5. Trade Marks Act, Cap 506 Laws of Kenya

This Act regulates the registration of Trade Marks. The Act provides for the criteria for registration of a mark as a trademark, the process of application of a trademark, the rights of an owner of a trademark, the term of validity of a trademark certificate, international applications for trademarks, legal procedures for disputes related to trademarks and offences related to trademarks. This Act is relevant to persons and corporate institutions in the technology field with marks that identify the businesses that they wish to exclusively own.

6. Science, Technology, and Innovation Act, Cap 511 Laws of Kenya

This Act regulates scientific and technological innovations within Kenya. The Act establishes the National Commission for Science, Technology and Innovation which has the mandate to;

Develop scientific, technological, and innovative activities in Kenya,
Lead efforts to implement policies and budgets that positively affect innovations involved in science, technology, and innovation in Kenya.
Advise the government on matters relating to science, technology, and innovation in Kenya.
Accredit research institutions and approve all scientific research in Kenya.
Sponsor national scientific and academic conferences it considers appropriate.
Promote increased awareness, knowledge, and information of research systems.
Coordinate, monitor, and evaluate, as appropriate, activities relating to scientific research and technology development.
Promote and encourage private sector involvement in scientific research, innovation, and development.
Annually, review the progress in scientific research systems and submit a report of its findings and recommendations to the Cabinet Secretary;
Promote the adoption and application of scientific and technological knowledge and information necessary in attaining national development goals;
Develop and enforce codes, guidelines, and regulations in accordance with the policy determined under this Act for the governance, management, and maintenance of standards and quality in research systems; and
Undertake, or cause to be undertaken, regular inspections, monitoring, and evaluation of research institutions to ensure compliance with set standards and guidelines.

The Act provides that one may not conduct any scientific research in the country without a license and provides the requirements for receipt of a research license. The Act also provides for the process of registration and licensing of research institutions.

The Act also establishes the National Innovation Agency which is mandated to:

Foster collaboration between universities and research institutes on science, technology, and innovation.
Create science and innovation hubs.
Designate existing institutions as centres of excellence in priority sectors.
Develop national innovation standards to meet international standards.
Support innovation by nurturing innovations made by individuals and institutions in the private sector.
Create and maintain an innovation database.
Award innovation.
Increase intellectual property awareness of Innovators.
Ensure science, technology, and innovation are included in the country’s policies.
Promote innovation by offering awards for innovations.
Provide financial assistance to technology innovators.
Provide incubators for innovative ideas.
Facilitate applications for intellectual property protection and suit actions against those infringing the rights of innovators.
Create synergies among different technological innovations, and incubation initiatives for the diffusion of technology in Kenya.
Develop the national capacity and infrastructure to protect and exploit intellectual property derived from research or financed by the Agency.

The Act also establishes the National Research Fund which is for financing the award of contracts, grants, scholarships or bursaries or any other award determined by the Commission to persons or institutions; financial support for the acquisition or establishment of research facilities; the development of appropriate human resources and research capacity in the areas of science technology and innovation; financing research systems in all sectors and all levels of education; and funding the co-operation and sharing of research information and knowledge, including supporting conferences, workshops, seminars, meetings and other symposia.

7. Copyright Act, Cap 130 Laws of Kenya

This Act regulates copyrights and their registration. The works that are eligible for copyrighting according to this Act are; literary works, musical works, artistic works, audio-visual works, sound recordings, and broadcasts. Technological works may fall under the confines of these works, hence being eligible for copyright. The Act also establishes the Kenya Copyright Board (KECOBO) which has the function of; overseeing the implementation of international laws and treaties on copyright that Kenya is a party to, provision of copyright licenses and certificates, circulating information on copyright through training programs, informing the public on matters related to copyright, organize legislation on copyright, deal with all matters related to copyright in the country.

This Act is relevant to persons and corporations in the technology field that have technological works that may be eligible for copyright, including software code.