The civic space in Kenya is undergoing a significant transformation, with platforms like X Spaces revolutionising how we interact with our leaders. High-profile government officials, including the President and Eng. John Tanui, Principal Secretary for ICT and the Digital Economy, are directly engaging with citizens and listening to their concerns. This was evident in the recent X-Space session dedicated to the ICTA Bill, 2024, where concerned stakeholders had the opportunity to voice their opinions and contribute meaningfully to the law-making process. This shift marks a new era of collaborative governance in Kenya.

The ICT Authority (ICTA) is a State corporation under the ministry tasked with rationalising and streamlining the management of all Government of Kenya ICT functions. The ICT Authority was established in 2013 under Section 5 of Legal Notice 183 of 2013, which expired last year. The ICT Bill, 2024, seeks to anchor this body in law through an Act of Parliament. This Bill is under scrutiny for its increased bureaucracy, capacity to stifle innovation, creating room for the potential abuse of power, increased costs, and negative impact on small players.

Kenya’s ICT Landscape in a Nutshell

In recent years, Kenya has emerged as Africa’s leader in the technology market, earning the nickname Silicon Savannah. This reflects the country’s ambition and innovation, fueled by strategic investments and a vibrant entrepreneurial spirit. During the X Space session, Eng. Tanui acknowledged the development centres set up locally by Amazon Web Services and other big firms, highlighting the international interest and investment in Kenya’s tech sector. The sector’s success is partly due to the freedom and flexibility it has enjoyed, allowing innovation to thrive without restrictive regulations. Every day, thousands of professionals are honing their skills, contributing to a rapidly expanding talent pool. A key factor in Kenya’s rise is its pioneering role in mobile payments. Remarkably, one out of 10 global mobile transactions occurs in Kenya, with M-Pesa leading the way on this front.  

The Risks We Run

1.     Accreditation

The introduction of this Bill has raised several important issues. One major concern is the proposed requirement for ICT service providers to be accredited by the Authority. According to the Bill, anyone wishing to offer ICT services must apply for accreditation and pay a fee. While the intention behind this accreditation is to differentiate legitimate service providers from less qualified ones, closer evaluation dictates that it could do more harm than good. The ICT industry is already thriving without such a requirement, and adding this compliance measure could hinder innovation. It may slow down market entry and complicate business processes. Furthermore, this accreditation could disproportionately impact small and medium enterprises (SMEs), forcing them to shift their focus from growth and development to meeting compliance requirements. Instead of investing in innovation, these businesses might have to allocate valuable resources toward fees and paperwork, ultimately stifling competition in an industry that relies on agility and creativity.

• The ICTA Mandate

The ICTA has faced criticism for not effectively fulfilling its role within the government, making it ironic that such an authority is now expected to regulate the ICT sector. Many government ICT platforms are underperforming, and the real issue lies in ensuring that the ICT departments in state agencies are properly staffed, trained, and qualified. Before expanding its focus outward, the ICTA should prioritise these internal improvements. It is essential to address these foundational issues before tackling external regulatory challenges. The industry already has a capable regulator in the Communications Authority of Kenya (CA).

• A Player in the Game or a Guardian of the Rules, But Never Both

The Bill outlines the functions of the ICTA, which includes the commercialisation of national ICT infrastructure. Further, the Bill makes provisions that require ICT service providers to seek permission from the ICTA to deploy infrastructure. The ICTA is a licensee of the CA. This means that the CA oversees the ICTA, ensuring it adheres to regulations and standards while carrying out its responsibilities in the sector. It is worth noting that an operator in the industry who also acts as a regulator over other industry players creates a clear conflict of interest. For a fair playing field, one player must not have regulatory powers over others. This kind of setup could lead to unfair competition and undermine the integrity of the industry. The designated regulator, the CA, should address any gaps in the industry.

• Draconian Penalties

The Bill proposes a range of penalties for non-compliance that could create a climate of fear, ultimately stifling innovation in the ICT sector, including potential imprisonment for up to five years, fines not exceeding Ksh 5 million, or both. Implementing harsh measures in an industry that is still developing risks putting the country at a significant disadvantage, potentially falling behind other countries that embrace a more supportive environment for technology and innovation. The freedom and flexibility that the ICT sector has enjoyed have been crucial to its growth and success. Instead of fostering creativity and progress, strict penalties could drive businesses away and discourage new startups from entering the market. It’s essential to nurture an atmosphere where innovation can flourish.

• Big Tech Vs. Local Innovation

Instead of fostering a supportive ecosystem for homegrown talent, the Bill could inadvertently create a landscape where only well-established foreign firms can navigate the complex regulations. We need to ensure that local innovation is not only protected but encouraged. By prioritising the needs of local practitioners, we can create a thriving tech landscape that benefits everyone rather than allowing it to become a battleground between local startups and multinational corporations.

Conclusion

In light of the above, the Ministry of ICT and the Digital Economy is called to amend the Bill to reserve accreditation for ICT service providers who wish to engage with the government. Currently, the Bill mandates both national and government entities, as well as private entities, to fall under the authority of the ICTA. Further, the Ministry should support policies that encourage the development of new technologies and skills rather than stifling them. The government must focus on policies that support innovation, with more investment in research and development, expansion of tech education and training programmes, enhanced connectivity, market access, and tax incentives.

Heavy-handed regulation risks doing more harm than good by creating unnecessary barriers to entry, stifling competition, and undermining the dynamism that has made Kenya a rising tech hub in Africa. A rigid framework will exclude talent, discourage entrepreneurship, and hamper Kenya’s capacity to attract and retain the best talent in the world.

Public participation should not just be a box-ticking exercise. There is a need to directly involve industry players in the law-making process. We now live in an era where citizens are more aware and engaged with the laws and policies that shape our lives. The political climate is influencing every conversation. More than ever, Kenyans are eager to voice their opinions and participate in the democratic process. We are witnessing the dawn of an unprecedented era of collaborative governance, where accountability and transparency are the guiding pillars. This new approach ensures that the voices of ordinary Kenyans are heard and considered, fostering a more inclusive and responsive government. The future of Kenya’s civic space looks bright as we continue to build a society where every voice matters and every opinion counts. From the X Space, the representatives of the government Eng. Tanui and Youth Leader Hon. Umulkher Harun were responsive to the issues raised. The stage is set for a revised version of the Bill before moving forward.