From fibre optic cables to telecommunication masts, multimedia gateways to mobile money transfer platforms, the development and deployment of tangible and intangible ICT infrastructure is an extremely capital-intensive undertaking. 

ICT infrastructure rollout and availability is critical to ensure access to reliable digital services. In a bid to avoid the costly duplication of efforts and resources by service providers, infrastructure sharing policies have been deemed an attractive solution for the Kenyan government.

Kenya’s legal framework broke ground on infrastructure sharing in the Kenya Information and Communications Act (KICA), the primary legislation governing the telecommunications sector in Kenya. The 2009 amendment to KICA permitted private ICT infrastructure developers to share their sites or facilities with service providers licensed by the Communications Authority of Kenya (CA). A further amendment in 2013 empowered the Cabinet Secretary for the Ministry of ICT, in consultation with the CA, to develop infrastructure sharing regulations. 

The National ICT Policy Guidelines, 2019, further emphasised the need to develop a legal framework that will regulate how privately established infrastructure may, on fair commercial terms, be made available by an infrastructure operator to ICT service providers.  

This was further reinforced under the National Digital Master Plan 2022-32 which highlighted the need to develop infrastructure sharing policies and strategies to harmonise and accelerate Kenya’s realisation of a digitised economy. 

The above policy and regulatory documents have culminated in the development of the draft Kenya Information and Communications (Access and Infrastructure Sharing) Regulations, 2022. 

The draft regulations have been developed to govern the sharing of tangible and intangible ICT infrastructure. 

The draft regulations seek to: 

• Create a framework for better cooperation in infrastructure sharing;
• Eliminate unnecessary duplication of ICT infrastructure;
• Maximise the use of the existing and future ICT infrastructure;
• Minimise negative public health, safety and environmental impacts caused by the proliferation of infrastructure installations;
• Promote competition in the provision of ICT networks and services;
• Promote orderly and effective town and country planning in terms of Information, Communications and Technology service provision; and 
• Promote investment and innovation in the provision of ICT services.

Below are key components of the draft regulations: 

Request for infrastructure sharing 

An infrastructure seeker shall make a formal written request for infrastructure sharing to an infrastructure provider, who has to respond within 45 days, with an invitation to commence negotiations.

Guidelines for infrastructure sharing

An infrastructure provider shall be guided by the following when processing an infrastructure sharing request: 

• Whether the infrastructure can be reasonably duplicated or substituted; 
• Do technical alternatives exist?; 
• Whether the infrastructure is critical to the supply of services by the licensees; 
• Whether the infrastructure has available capacity; 
• Whether joint use of the infrastructure encourages the effective and efficient use of the facility; and 
• The cost, time and inconvenience to the licensees and the public of the alternatives to shared provision and use of the infrastructure. 

In a bid to avoid the monopolisation of particular infrastructure, the draft Regulations state that an infrastructure provider shall ensure that not more than 50% of their non-replicable infrastructure is used by a single infrastructure seeker.

Condition for sharing of general infrastructure

The draft regulation stipulates that entities deploying private ICT infrastructure for their own use should provide for at least 30% additional capacity beyond their projected needs. The additional capacity can then be availed for sharing with other licensees on a non-discriminatory basis. 

Meanwhile, publicly owned infrastructure shall be operated and availed to infrastructure seekers on the principle of open-access and non-discrimination. 

Crucially, the CA has been empowered to impose specific infrastructure sharing obligations relating to an infrastructure provider who has significant market power or is declared dominant in the relevant market segment to ensure effective occupation. 

Exemption from infrastructure sharing 

The CA may exempt an infrastructure provider from the obligation of sharing a particular element of the infrastructure if:

• The infrastructure sharing is prohibited by law; 
• The infrastructure seeker does not have the appropriate licence to operate the requested infrastructure;
• The request is rendered impossible as a result of technical specifications or capacity limitations; 
• The infrastructure sharing would endanger the environment, life, or safety or result in injury of any person or cause harm to other property; or 
• There are other valid and justifiable causes. 

Penalties

Entities that contravene the draft regulations can be liable to a penalty not exceeding 0.2% of the annual gross revenue turnover based on the last accounts submitted to the CA.