DIGITAL EVIDENCE & LAWS

In the ever growing digital uptake in Kenya and across Africa grow a big need for laws and regulations of the technology and its use. The demand for incorporation of technology in businesses and daily running of the countries economy has become inevitable and this uptake has introduced unprecedented risk scenarios that law makers did not anticipate. To break it down, the growth rate is tremendous, according to the Communications Authority of Kenya Sector statistics Q4 report 2018/2019, internet services have increased by 16.7% not counting other services like mobile money etc.

The government too in the wake of Blockchain technology constituted a task force lead by Hon Bitange Ndemo to look into how the government services can be integrated to the blockchain technology where the report was given.

To this effect, even the ministry of ICT came up with a master plan of digitizing Kenya to make it a smart country heavily reliant on technology. The master plan was meant to…

‘The Master Plan will, among other things, provide e-government services that are simple to use and convenient for all’.

H.E Uhuru Kenyatta

The most recent one was the Huduma Number registration where citizens had to be registered all afresh for what is commonly known as “The Single source of Truth” for the government. This is a highly debated conversation and people have questions since the country has a law on Data privacy, but has not been strictly implemented since the passing of the law. Concerns that have also been captured by different institutions.

So where does this technology intake without stringent laws and regulatory frameworks lead to? Most technology experts mostly in the Cyber Security space term it as a ticking time bomb to more issues in the future. They are worried and do not understand why there is need to have another identification system yet the existing one IPRS (Integrated Population Registration System) is has had security issues. What guarantees do the public have for the security of the data.

The government has even gone ahead and digitized the Lands ministry where most of the services that were being issued only at ministry of Lands premises can now be accessed online. The e-citizen portal is another revolutionary technology that the state has taken up in order to deliver services anywhere across the country through technology. But the biggest technology intake that all services depend on is the Mobile money platform M-PESA which is integrated in almost every service and technology across the country.

This and many more examples of how Kenya has over the time grown in technology puts Kenya as one of the fastest growing tech intake countries in Africa and earned it the term Tech hub of East Africa.
But this technology intake comes with its own risks and unforeseen issues to everyone which may have an effect to the countries economy. This now brings in the conversations of, are we ready? Are we prepared to tackle the unknown?

To answer that, we need to know what laws are there in Kenya in regards to Technology? The most common ones guiding the technology space include;

  • The Kenya Information Communication Act (KICA) 2012 : Read
  • The Computer Misuse and Cyber Crime Law 2018: Read
  • The Evidence Act 2014: Read
  • Data Protection Law: Read

But there being laws guiding digital crimes and prosecutions, there is a challenge which is the lawyers. It is said that, most lawyers are not tech savvy and those that are, get little backing from the laws already in place.

It is said that lawyers love to work with paper and they prefer that to the use of technology. This has over the time been changing and we have seen more lawyers being on the forefront in the technology side. But challenges still are there.

More Lawyers need to have training in the digital space together with tech savvy people and law enforcement. This three groups of people are the one’s who can successfully prosecute a case in court related to Cyber crime. The Lawyers need to help shape the kind of legislation being made to help them successfully close cases related to digital crime, but the approach to this should be between the relevant entities that play the key roles in this. Most legislation as they are see most cyber criminals go free and this makes the criminal cartel grow even more.  

One of the cases lost though with substantial evidence was a learning lesson for most digital investigators. Read the Case study.

This is a call to the Lawyers, Law enforcement and the Tech community. Its time to join hands for the war against Cyber criminals to succeed.

By: Michael Felix

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