In the East African Legislative

EAST AFRICAN COMMUNITY ______IN THE EAST AFRICAN LEGISLATIVE ASSEMBLY (EALA) The Official Report of the Proceedings of the East African Legislative Assembly 110TH SITTING – THIRD ASSEMBLY: SECOND MEETING – FOURTH SESSION Thursday, 8 October 2015 The East African Legislative Assembly met at 2.30 p.m. in the Mini Chamber, County Hall, Parliament of Kenya, Nairobi. PRAYER (The Speaker, Mr. Daniel F. Kidega, in the Chair.) (The Assembly was called to order) ______COMMUNICATION FROM THE CHAIR staff who have contributed to be extended to the family of hon. Lydia Wanyoto. The Speaker: Good afternoon, honourable members. Honourable members, I have just In the same vein, I have also written a one item to communicate to this House. condolence message on your behalf to the One of our Partner States and specifically a Parliament of Uganda and the family of the sister institution, the Parliament of Uganda, deceased. I kindly request that we rise up in the recent past has suffered losses of its and observe one minute of silence. members. (The honourable Members stood and While we were on recess, the government, observed a moment of silence.) Parliament and people of Uganda lost the Minister of Internal Affairs, hon. Gen. BILL’S Aronda. The unkind of death did not stop SECOND READING there. This week, the government and Parliament of Uganda again lost a second The East African Community Electronic minister, hon. Dr James Mutende. Transactions Bill, 2014

On your behalf, I have expressed our (Debate interrupted on Wednesday, 7 sympathy and condolences to the October 2015, resumed) government, people and Parliament of Uganda. Hon. Dr Mutende happened to be The Speaker: Honourable Members, last the husband to one of our former evening when we adjourned, the colleagues, hon. Lydia Wanyoto. I would Communications, Trade and Investment like to thank the honourable members and Committee under the able leadership of

Thursday, 8 October 2015 East African Legislative Assembly Debates hon. Mukasa Mbidde met with the Chair, However Mr Speaker, the concerns that had Council of Ministers and they have done been raised that were new have also been justice to the Bill. I now would like to invite incorporated into the substantial Schedule the Chair of CTI in a way of refreshing the that is before this House as an annexure to minds of this House because as you the report that is already before this House. remember, we had adjourned when debate had already ensued. Mr Speaker, the matters that were raised included whether the Bill has the effect of Therefore, we will proceed with the debate regional application, which has already on the report of the committee but to create been addressed. a good platform from where the debate shall continue from, I would like to use my The other issue was that the Bill was discretion to invite the Chair to refresh the benchmarked on one of the Partner States minds of the members of this House so that laws and we have addressed this. debate can proceed. Mr Speaker, the Bill does not seek to The Chairperson, Committee on provide for astronomy. We are providing or Communications, Trade and Investment what actually exists with the Partner States (Mr Fred Mukasa Mbidde) (Uganda): but giving it a regional legal architecture Thank you very much, Mr Speaker. and that is what we have addressed and we Honourable members of this Assembly, the have agreed with much of the stakeholders Speaker has guided the House that this is that had raised the law. continued debate with a view to having the second reading of this Bill concluded and The cyber law framework and the clauses ultimately have the Bill passed into an Act. on consumer protection and the application of bot open and closed systems and the new The adjournment was in accordance to the definitions as had been proposed have all Rules of Procedure to today. Mr Speaker, been incorporated. we are happy to report that following your directives, we have made all the necessary Therefore, honourable members, to refresh agreements with the stakeholders. A new your minds on the report, much of the schedule has equally been produced which importance will go to the recommendations has amalgamated all that we received which because the report is with us. As a were the pending matters, the subject of committee, we strongly subscribe to the which the adjournment was so sought by recommendations that accompany the the Council of Ministers, including a report, which include, among others, the consideration of a small write up by the one on page 7 that, “The committee urges Legal sub-committee of the Monetary the Assembly to pass the Electronic Affairs Committee and we have equally Transactions Bill so that the region can added the same. have a legal instrument regulating the electronic transactions.” Mr Speaker, however, most of the comments from the stakeholders had been Mr Speaker, it is noted that traders and overtaken by events as the comments were businesspersons in the region are going on targeting the original old Bill. We had with their trade. In fact, much of this trade already, pursuant to the tours that we had is guided by electronic transactions. The taken through all the Partner States, problem is that we have no regional legal addressed much of the concerns. framework to balance the same and this is what creates the urgency for purposes of passing this Bill.

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The other recommendation is we urge the Honourable members, debate continues. It Council of Ministers to fast track is therefore open on the report of the regulations that are needed for the committee, which I am sure you have implementation of the EAC Electronic copies circulated to all of you. Transactions Bill. This is buttressed in clause 50 to the substantive bill, and we I would also like to use my discretion to hope the Council of Ministers will take it reopen chance to those who had earlier on upon themselves immediately to execute debated if they have something to say on the draft regulations so that we can have this Bill to say so because as the Chair has this law implemented. refreshed our memory, the stakeholders’ interests were considered. Thank you. As recommendation number three, we also urge the Partner States to embrace the Hon. Dr Ndahiro, you are the mover. We Electronic Transactions Bill and harmonise are still requesting- You will definitely their laws to the regional law to create a have your moment to debate the Bill. If proper environment or all possible users there is no debate that means that, the and beneficiaries of ICT in the region and House is in total agreement with the report. beyond. I will invite Dr Ndahiro, the mover of the Bill to make some statements and then Mr Speaker, we are mindful that there is move to the Chair to extend his Supra national legislation, which envisages appreciation to the House and we will then that Partner State laws would harmonise all proceed to the next stage. legislations in the area so legislated upon by this Assembly for purposes of creating Dr. James Ndahiro (Rwanda): Mr harmony and proper regional application of Speaker and honourable members, I would all electronic services and transactions like to begin by thanking all the within the EAC Business Community. stakeholders we have met during our tour.

Mr Speaker, the final recommendation is Mr Speaker, the stakeholders were friendly, that as the committee, we urge the knowledgeable and supportive. All those Assembly to consider and adopt the we met indicated that the Bill was timely amendments proposed herein which are and they indicated that the Bill could solve attached to the schedule so that we can have some of the challenges they were meeting this Bill passed into an Act of the Assembly particularly those from the Private Sector today and we shall hope that pursuit of the who want to invest their resources across same shall be done by the Council of the border. Ministers for purposes of its immediate assent for its usage to be realised as Mr Speaker, the other issues that were conclusively as possible. raised during our tour and all those issues were important and they actually helped us Mr Speaker that is the simple recap of the to strengthen and improve our Bill. report as it stands and the status of our intended enactment. I pray that this As you are all aware, the Community has Assembly goes ahead to do the needful. I worked on the Cyber law framework, thank you very much. which was used to improve the Bill. The Cyber law framework has five elements. The Speaker: Thank you so much, hon. The first element of Cyber law is electronic Mukasa Fred, the Chairperson, CTI for transaction, which is the Bill before you bringing the House in tandem with where today. we are now.

Thursday, 8 October 2015 East African Legislative Assembly Debates

Another element of Cyber law framework We have received input, as indicated in the is a consumer protection, which is in your report, from the Monetary Affairs amendment today. The third is about data Committee. Unfortunately, because they protection, which is in your amendment were the last, they were not aware of inputs today. The fourth is about electronic from other stakeholders but I would like to signature, both digital and other forms of thank them in particular because all the electronic signatures. They are part of the issues they had raised were important and amendments today. have been addressed.

That is why I am saying that the inputs we Mr Speaker, the Bill has benefitted from receive from the stakeholders were other stakeholders who are in charge of necessary and essential to make the Bill the legal reforms in our Partner States. They are way it is today. aware of the stages that those particular Partner States are in, and how far they have Mr Speaker, we also received inputs from gone in either implementation or inducting organisations that are involved in this area of similar Bill sin their Partner States. on a daily basis; an organisation of operators of technology and ICT, the We have indicated to you each Partner State regulators under the organisation, which in the East African Community, what they actually has membership to the have put together, what they are using and Community, that is the East African the need to harmonise, the need to have the Communication Organisation. That same standard, to harmonise regulations organisation is made up of all the CEOs you such that even people beyond the know, all the companies you know e.g. Community; outsiders could come and MTN, Safaricom, LEO. Etc. It is made up invest in one Common Market. of all ICT agencies and regulators. We are doing this because it is the I would like to thank and recognise their aspiration of our people and our leaders that input. That is an indication that this Bill was we land a single market in East Africa. important to the Community. They took Therefore, it is important to have same time off, sat and gave us good input. standards. We should not frustrate our Honourable members, please join me in investors who would invest in Partner State thanking those organisations - (Applause). (a) and if he wants to cross to Partner State (b), he has other legal challenges. We want We have also received input from the to harmonise so that we speak the true Kenya Law Society and in the same vein, I language of integration. would ask you to join me in thanking, particularly, the association of lawyers who Mr Speaker, the Bill also has looked at sat because in their minds, they knew that cross border issues such as trade, electronic this Bill is important and it affects transactions because the electronics we use everybody. Actually, it does not affect today have no sense of geography. They are people in technology alone but people in not aware that the boundary of Rwanda is agriculture, in fisheries, in industry, this and the boundary of Uganda is this. mention it. Everybody is affected by Unconsciously, there are people from the technology today. private sector who have gone ahead, without the legal framework and they are It is on that basis that lawyers across sat testing this Community. down, looked through the document and gave us inputs, which have been used to You have seen those who hold Airtel sim- improve the Bill. cards. You know that Airtel has already

Thursday, 8 October 2015 East African Legislative Assembly Debates entered into Monetary Union. They are Those who contributed to the motion implementing the Monetary Union, which seeking to adjourn debate are not here we have not signed because they will not because that list was not what I asked for. I ask you for dollars or for the exchange rate. did not personally move the motion for the They just do it. You buy your sim-card in adjournment of such debate so I have not Rwanda and you are in Kenya, they know included you here merely because your what to do and they will know what to contributions were targeted to the extension charge. Therefore, they already know the of the debate than adopting the report. value of your currency to this one and they Nevertheless, I am now thanking you know how to handle it. They do not write to because you have attended in order to vote you, it is all done electronically. for the adoption of this report.

Therefore, it is important to provide a legal Mr Speaker, I thank the indulgence of your framework to allow the good initiatives that office, which has been tireless to the effect are in line with our integration projects to that we can have this report adopted and the go ahead. Bill passed as we possibly are going to do.

Thank you, Mr Speaker and honourable I also recognise the effort of members of members. I need all of you to support the my committee. We have had extended amendments in the Schedule. Thank you. meetings for purposes that this report is concluded as is required. The Speaker: Thank you so much, hon. Dr Ndahiro who is also the mover of the Bill Let me also take off this time to thank the for the good journey into the Bill. I now Chair, Council for his tireless involvement invite the Chair of the committee to wrap in seeing that this report is actually adopted up before I put the question. in a framework that we have so presented. The mover of the Bill, I do not know how Mr Mukasa Mbidde: Thank you very to thank you. I think this House will do so much, Mr Speaker. At the end of the day, I by having the Bill passed into an Act of this will ask the House to support the report that Assembly. this Bill is read for the second reading. However, I must thank those who Finally, I am sure the East Africans will be contributed to the debate of this report. Of extremely happy if we pass this Bill today. course, the opportunity for doing which I As the mover of the Bill has also said, the did not get since debate was adjourned. I transactions are already on going. In fact, take recognition of the contributions of the they are only waiting for us by the corner to following…at the end of the day, we shall arrive where they are so that we can move seek that the report be adopted with the together. amendments that were also cited by those that contributed. They say that when water rises up to your The following need to be thanked that ankles, that is the time for you to act than contributed in Kampala: hon. Nancy, hon. when it has risen up to your neck. Peter Mathuki, hon. Frederic, hon. Sebalu, Therefore, I think this is now the time for hon. Shy-Rose, hon. Zein, hon. Susan us to act to regulate the electronic Nakawuki, hon. Patricia, hon. Ngoga, hon. transactions in the East African business Ndahiro, hon. Sarah, hon. Ogle, hon. community so that we can be able to have a Leonce, hon. Valerie and the honourable Community that progresses along both minister. business and legal lines for purposes of control of the same.

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With those few remarks, I beg that this The Chairman: Chair, since Members Assembly adopts the report of this have these schedules with them, it will take committee for passing this into a a lot of time and I am sure Members are substantive Bill, the Electronic reading through. Just mention the Transactions Act, 2015. I beg to move - amendment and I will confer with the (Applause). mover.

The Speaker: Thank you so much, hon. Mr Mukasa Mbidde: Much obliged, Mr Mukasa Mbidde, the Chairperson, CTI. Chairman. It is proposed that clause 2 is Honourable members, the motion before amended to reflect the provisions in the the House is that the East African schedule on pages 8, 9, 10, 11 up to (d). Community Electronic Transactions Bill, 2014 be read for the second time. The justification is that this follows the new definitions that have been provided for I now put the question that the East African more clarity in the law with the view to Community Electronic Transactions Bill, avoiding likely ambiguity. I beg to move. 2014 be read for a second time. The Chairman: Thank you, chairperson. (Question put and agreed to.) Dr. Ndahiro: I agree with the amendment, BILLS Mr Chairman. COMMITTEE STAGE The Chairman: Thank you so much, hon. The East African Community Electronic Dr Ndahiro. Honourable members, I now Transactions Bill, 2014 put the question that clause 2, as amended, be part of the Bill. Clause 1 (Question put and agreed to.) The Chairman: Honourable members, you are fully aware that it is at this stage that Clause 3 amendments to the clauses are brought forward. I know we have a schedule of The Chairman: Honourable members, the amendments by the committee but this is proposal is that clause 3 be part of the Bill. open to the entire House. The proposal is I now put the question that clause 3 be part that clause 1 be part of the Bill. I now put of the Bill. the question. (Question put and agreed to.) (Question put and agreed to.) Clause 4 Clause 2 The Chairman: Honourable members, the The Chairman: Honourable members, the proposal on the floor is that clause 4 be part proposal is that clause 2 be part of the bill. of the Bill. Chairperson.

Mr Mukasa Mbidde: Mr Chairman, it is Mr Mukasa Mbidde: Mr Chairman, the proposed by the committee that clause 2 is committee proposes it that clause 4 be amended as reflected in the schedule on amended by replacing paragraphs (g), (j) page 8 by inserting – I do not know whether and (i) with the following new paragraphs: I should read. It is reflected on page 8.

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(g) Encourage investment and innovation in Information and Mr. Taslima: Thank you, Mr Chairman. I Communication Technologies to am looking at clause 6, which talks of promote electronic transactions. where a law requires a signature or provides (j) Promote public confidence in the for consequences. I think it would make for integrity and reliability of electronic better meaning and reading if it was, “Any records, electronic signatures and law other than a law” – I am taking of “any electronic transactions. law” so that we embrace all other laws that (i) Foster economic and social can be relevant to what is in this clause. prosperity in the Community through the Information and Dr Ndahiro: Thank you, Mr Chairman. Communication Technology sector. The honourable member is raising an issue, which we discussed with other Mr. Chairman, the justification is that the stakeholders, but the agreement was that same is only intended for purposes of there are some laws, which do not take this clarity. I beg to move. direction. For example, a will or laws regulating wills and other things. Dr Ndahiro: Mr. Chairman, I agree with Therefore, we agreed that a law is much the amendment. better than any law because any law will bring those other laws that are not in line The Chairman: Thank you so much. I now with electronic transactions. Thank you, Mr put the question on the amendment as Chairman. moved by the Chair – Mr. Taslima: Honourable Chair, when you Mr. Opoka Okumu: The clause is not 4(i) say “any law” if it ended that way, it would but 4(l). mean exactly what the mover is saying but when you go on qualifying it by saying, The Chairman: It is 4(l). I now put the “where any law requires a signature” then question on the amendment as proposed by you are talking of a law which requires a the Chair on clause 4. signature and not any other law. So by saying “any” it does not necessarily mean (Question put and agreed to.) that you are talking of “any” meaning that you are including each and every law. The Chairman: I now put the question that clause 4 as amended be part of the Bill. The Chairman: Thank you, hon. Taslima. Let me open debate on this amendment as (Question put and agreed to.) proposed by hon. Taslima. Debate is open because the mover and the person who has Clause 5 moved the amendment do not agree.

The Chairman: Honourable members, the Mr. Ogle: Mr Chair, with respect to hon. proposal is that clause 5 be part of the Bill. Taslima who is seeking to amend from “a I now put the question. law” to “any law”, I think we need not go to some hair splitting exercise. As far as I (Question put and agreed to.) am concerned, “a law” and “any law” are just about the same thing. We are not really Clause 6 adding any value to – (Interruption)

The Chairman: Honourable members, the Ms Byamukama: Mr Chairman, the proposal is that clause 6 be part of the Bill. drafting that uses “any” has been

Thursday, 8 October 2015 East African Legislative Assembly Debates abandoned because the recent drafting we are simply saying that where a law says…we used to say, “Any person who requires a signature, the requirement is does a, b, c, d commits a crime”. The new fulfilled if the electronic signature is used. drafting is “a person who does a, b, c, d commits a crime.” Therefore, this is a new The Chairman: Just hold on a bit, we are form of drafting which I would like to urge trying to put the Ac into a user-friendly my colleague, hon. Taslima to take into mode. Hon. Chris would like to be clear on account. It is more specific and I think hon. how we are proceeding and that if you want Ndahiro was very clear. Thank you. us to stand over the clause, that is another way of going about it but as of now, there The Chairman: Thank you. Hon. Ogle, is no amendment you have moved. Some of had you finished? the things that are likely to come should have come in the debate. So, again, I would Mr Ogle: What I saying is that there was like to caution the House that we should not not much distinction between “a law” and introduce debate at this stage. We can only “any law”. I did not even have any idea that debate amendments, which are formally “any” was abandoned and that the new moved. Unfortunately, we are a rule-based format is about “a” but the point is House. Thank you so much. I think hon. ethnically there is no value that the Chris is in tandem with the House. application or the usage of “any” was going to add into this particular provision of the I now put the question that clause 6 be part law. Thank you. of the Bill.

Mr. Taslima: Honourable Chair, I would (Question put and agreed to.) like to concede. Clause 7 The Chairman: Thank you so much. You know this Electronic Transactions Bill – The Chairman: Honourable members, the The world has moved from many places - proposal is that clause 7 be part of the Bill. from analogue to digital, and thank you for I now put the question. moving as well. Hon. Chris, do you have another amendment on clause 6? (Question put and agreed to.)

Mr. Opoka Okumu: On the same clause 6, Clause 8 it says where a law requires a signature – The second part of it - I really do not The Chairman: Honourable members, the understand why it is there. proposal is that clause 8 be part of the Bill. I now put the question. The Chairman: Honourable member let me guide the House a bit. We are at the (Question put and agreed to.) stage of going on the Bill clause by clause. If you want to bring an amendment, write Clause 9 it, bring it to the table of the Chair and then move it formally, it is seconded and then we The Chairman: Honourable members, the debate it. That is our Rules of Procedure, proposal is that – (Interjection) - Hon. hon. Chris. Susan, is it on clause 9?

Mr Opoka Okumu: Mr Speaker, I am very Ms Nakawuki: I thank you so much, Mr much obliged but I wanted to seek your Chairman. I would like to propose an indulgence on this that it is unnecessary if amendment under Clause 9. Actually, I

Thursday, 8 October 2015 East African Legislative Assembly Debates want to add a sub clause to be sub Clause 5 Ms Nakawuki: Thank you very much, Mr regarding protection of the right to privacy. Chairman. I am doing this for reasons that all our Partner States constitutions are very The Chairman: Honourable, have you keen on the right to privacy. All helped the Chair to draft it? Please pass it constitutions have a provision relating to forward. Proceed, hon. Susan. the right to privacy and as you are aware, in different international conventions for Ms Nakawuki: As I said, much as we are example the ICCPR and the International giving powers to Partner States under this Trade Agreements, including the clause to have access to all kinds of constitutions of our Partner States that I information from users, it is important that have talked about, since they all provide for we add that sub clause to protect the the protection of these rights like the right citizens from abuse by Partner States after to privacy and intellectual property rights, they have obtained this information it is very important that is included in this because you understand very well that there Bill to safeguard against any kind of abuse. can be territorial surveillance whereby I thank you. some agencies would take on this information, not for any purpose it is The Chairman: Thank you. I will give a intended but maybe for other personal or chance to hon. Ogle, the seconder to – private interests. (Interruption) -

Mr Chairman, allow me to say – Mr Ogle: Mr Chair, we do not need to (Interruption) - belabour the very valid arguments and reasons that were advanced by hon. Susan The Chairman: Hon. Susan, first move the on this matter. Matters of privacy need to amendment then we second it then we go be protected by any law because as an into the justification. I have it now with me, innocent businessman wanting to do some would you like to read it for the Members transactions somewhere across borders, I to hear and then we – (Interruption) - could just be providing some information but at some point, some Partner States Ms Nakawuki: Thank you. I would like to could be using that information which I add sub clause 5, “For avoidance of doubt, provided for the purpose of merely the provisions in this sections shall not enhancing some business transaction for allow use of private information or other purposes. Therefore, I think that commercial information for any purpose person requires that privacy that other than the purpose for which the parties information provided purposes be used or agreed when they were sharing the diverted for any other purpose other than information. Partner States shall be under for what it was intended. So I obligation to protect citizens from abuse of wholeheartedly agree with the amendment. their rights such as the right to privacy, intellectual property rights and other rights Ms Byamukama: Mr Chairman, I would that relate to sharing of the information.” like to get some clarification from the mover. As I seek for clarification, I am The Chairman: It is seconded. Now you reminded of a saying that we do not have to can go ahead and justify your amendment fear anything but we just need to then we shall open it up for debate. Was it understand. So, I am seeking to understand. seconded? Hon. Ogle has volunteered a late First and foremost, the right to privacy is secondment so hon. Nakawuki, proceed. not absolute. So although all our constitutions have the right to privacy, it is not absolute and if you look at most of the

Thursday, 8 October 2015 East African Legislative Assembly Debates constitutions, you will find that in cases of security matters, this right of privacy is Mr Chairman, there should always be waived. checks and balances. We all know for example when it comes to mobile phones, I know she was a Member of Parliament of you may find that a spouse wants to find out Uganda where there was even a law, which what their partner goes with their phone. was made whereby even when it comes to They go to a telephone company – not that telephone conversations, they can be this person is a security threat. They just go utilised when it comes to issues of security to a phone company, pay some money matters. So, I would like that to be taken through the back door and the next day, into account. your spouse has your entire list of who you called, for how long and even text Second is the fact that some of our Partner messages. Today you can get all text States have access to information Acts messages. because the aspect of access to information is also in some instances considered as a There are even scenarios where husbands right. This is very cardinal in that in some receive copies of WhatsApp messages instances even where you have classified before they are sent to the rightful recipient. information where for example it touches That is abuse in itself. We could even have on security matters, on issues of arms and people in security circles doing these very other issues, you will find that there are things, not because you are a security threat regulations on for example how the Audit or there is any other reason but for personal Commission can access such information. gain.

So, when it comes to the issue of privacy, I Therefore, this is something I am worried think we need to look at it broadly in terms about and that we should check. Much as of the fact that one, it is not absolute and we are trying to counter terrorism and other two, even when it is supposed to be vices, we should also keep the Partner classified, in those instances there are States in check so that they do not use it the regulations on how information can be wrong way. accessed and how it can be used. The Chairman: Thank you so much, hon. So, I would like to hear more on what has Susan. I invite hon. Dr Ndahiro to say made her come up with this in light of what something, as the mover. I have said on those two aspects. I thank you. Dr Ndahiro: Thank you, Mr Chairman. I have difficulties in agreeing with this The Chairman: Hon. Dora has sought amendment unless the lawyers in this clarification so hon. Nakawuki can – House advise me. I appreciate the concerns (Interjection) - of hon. Nakawuki, I understand she is a human rights lawyer and I can really Ms Nakawuki: Thank you very much, Mr understand her feelings. Chairman and thank you, hon. Dora. It is indeed true that the right of privacy is not However, I would like to persuade hon. absolute and that is why I am saying that Nakawuki that one; there are enough even when we are giving Partner States the regulations and Acts out there protecting an powers to go through all sorts of individual in Partner States. This is a information or to seize all sorts of business environment and actually, part of information. It should as well not be a the aims of this Bill is even to share blanket provision. information because sometimes

Thursday, 8 October 2015 East African Legislative Assembly Debates information is a product. Information is Mr Mwinyi: Thank you very much, Mr something that we rely on to make Chairman. I am in an uncomfortable decisions. Now once you start bringing in situation. My understanding of my sister’s some human rights concerns, we might proposed amendments is it is not to prohibit dilute the business orientation that we are information but it is prohibit usage of that focusing on. information. It is the improper usage. The issue is not information. Improper usage for Two, we have enough protection under this reasons other than what they were intended Bill. There is a clause on data protection and that is the crux of the matter. and probably if we reach there and she still Information is available; information feels that her concerns are not addressed, should be free under this Act within the she can introduce a new clause later but she Partner States, but it should be used for can give a chance to Members to go through what it was intended. all the clauses, which protect individual data. Thank you, Mr Chairman. Hon. Nakawuki amply displayed misuse of particular information, and that should be The Chairman: Thank you so much. I can protected. I do not see that being see hon. Mukasa Mbidde rising up. inconsistent with the Treaty or inconsistent with any Act. It is the issue of misuse of that Mr Mukasa Mbidde: Mr Chairman, information for personal gain, for corrupt maybe what I would think is my honourable purposes, for commercial purposes, for sister needs to look at Article 6 (d) which is manipulation or blackmail- All that can be an Article for the Treaty for the used. It may sound like a normal business establishment of the East African transaction but in the wrong hands and with Community. It makes provision for the a different motive, that information can be application of the rights under the African abused – (Interruption) Charter on Human and Peoples’ Rights. Ms Byamukama: Thank you, hon. Mwinyi The right under Article 9 of the African for giving way. I am trying to understand Charter on Human and Peoples’ Rights is your line of argument. If it is on the issue of specific on the right to access to misuse then that issue would be brought to information. If we are to legislate under this court or brought into contention whereby line, we may again have a problem of you would have to prove first the act and having to infringe the Treaty and the rights then that there was the mens rea which that are recognised under the Treaty. would maybe make it criminal in that aspect. So how now do you put that in the The right of access to information has been law? I just need to understand and obtained from far and all litigants, appreciate that. including my sister know that access to information is a hard right that has been Dr Ndahiro: Mr Chairman, I just want to obtained from very far. That is why hon. learn from the lawyers in the House. My Dora is laughing. So, we cannot take it back understanding of a record or information – from where it has reached. We had If I may cite an example. If I receive for authorities in many of the Partner States example an air ticket from Kenya Airways where except where Parliament has given and I later on realise that I was over you an express right, you cannot use their charged, can’t I produce it to court as Hansard, which have since been overtaken evidence? Will I be told that it was not by events. So, this right cannot be legislated intended to go to court but it was intended against, as we would be descending into to be used on Kenya Airways? Thank you. very troubled waters.

Thursday, 8 October 2015 East African Legislative Assembly Debates

Mr Mwinyi: I think we are on the same been put forward by hon. Nakawuki. I still space exactly. Your intervention and hon. think it is consistent, it just adds the extra Dora’s intervention is absolutely what we protection to preclude any member from are trying to say. Normal commercial abusing that information in a manner in transactions- A banking transaction which it was not meant to be used. I beg to between my business partner and myself is move. not necessarily public information. It is information that can be produced in public The Chairman: Let me give hon. Kiangoi when it is necessary but it is a private a chance to speak then I will give hon. transaction. Somebody can abuse that. You Nakawuki a chance to summarise and can protect it unless there is a court order maybe if she would concede or whatever requiring revelation. We can put this to vote the case may be. but what I am saying is that I do not see any harm as that provision will not preclude – Mr Kiangoi: Thank you, Mr Speaker. I (Interjection). There is no contradiction was just a bit worried when I heard that we anywhere. That provision will not stop need to put this question to a vote. This is a these transactions or these details from very crucial law and there are being revealed but it will stop them from internationally accepted standards. For being abused for reasons, which they were example, there is the 1996 UN adopted not intended to - (Interruption). standards for this kind of law and particularly I am rising because in Partner Ms Byamukama: Thank you very much States like Kenya, the Constitution allows for giving way. I think it is not a matter of access to information. Suppose we put it to putting this issue to court. I think it is a a vote and then it contradicts the Partner matter of understanding the kind of law we States law? It may then not operate. So want to put in place so I would feel maybe this is an issue where we may need uncomfortable if we just voted for the sake to convince each other rather than putting it of it. If you look ahead because now you are to a vote. Thank you. making us go ahead, on page 14 of the committee report, you will find under The Chairman: Hon. Kiangoi and XXX; data protection. honourable members who are worried about a vote, we are still proceeding with Mr Chairman., if you will allow me, I will the debate but our Rules of Procedure allow read it. “The minister responsible for for debate to ensue and when consensus is Information and Communication reached we will move. But, when Technology shall develop a legal consensus is not reached, ultimately that is framework on data protection to cover data where we will go. So we are still allowing retention, security, access, management for further discussion and that is why I have and sharing.” I think that maybe if invited hon. Nakawuki the mover, in light eventually the Assembly adopts this, it will of the fact that there is a new insertion by take into account the concerns raised by the committee on data protection under hon. Nakawuki and those that you are what hon. Dora has read, she can still take trying to espouse. I thought it is important the floor. that we all agree and not so much vote for or against because we want a good law. I Ms Nakawuki: Thank you, Mr Speaker. thank you. First of all, I would like to allay the fears of my honourable colleagues. Like hon. Mr Mwinyi: Mr Chairman, I still do not see Mwinyi said, this amendment is not any conflict between what my colleagues intended to deter access to information by have been espousing ad the clause that has

Thursday, 8 October 2015 East African Legislative Assembly Debates

Partner States but as I put it right from the for a law that is supposed to cure, or be all- start, it is intended to prevent abuse. encompassing, what is the harm of putting some checks in that law and say that the law Mr Speaker, we are coming up with a should not be abused? regional law, which is supposed to be supreme to the other laws in the Partner I want to be able to go to court, challenging States. Yes, the report has this but that the an act of any individual in any Partner State Minister responsible for Information referring to a given provision of the law not Technology shall develop a legal looking for where to pick it, not chasing framework on data protection but that is at after the minister for information in a Partner State level. What are we doing? Partner State who might not have acted. (Interruption) That is why even when the mover started, he said this law is intended to harmonise. The Chairman: Hon. Susan, maybe you will help us and address yourself to the We appreciate the fact that our Partner concern of hon. Kiangoi which says the States have a law on electronic transactions constitution of one of the Partner States but our laws are not necessarily the same so which in terms of our laws here, we cannot we are supposed to harmonise so that East amend the constitutions of our Partner Africans can be protected. So, I do not see States using our – I would like you to any reason as to why we should leave this address yourself to that – (Interruption) - as a matter “to whom it may concern”. I thank you. Mr Mathuki: Thank you very much, hon. Nakawuki for the opportunity to give The Chairman: Thank you so much, hon. information. In line with what hon. Kiangoi Nakawuki. Hon. Mwinyi seemed to have raised in relation to the Constitution of some information, not a debate because you Kenya, I also want to remind ourselves that have already had your chance on this in the same constitution, Article 2(6) says, matter. Honourable members – “Any law, Treaty that is ratified by Kenya (Interruption) - becomes part and parcel of the law.” Therefore, I do not think that there will be a Mr Mulengani: Thank you, Mr Chairman contradiction because it is very clear in the and colleagues. I would like to say that we same constitution and, therefore, I think it should not subject this clause to a vote, and is important that my honourable sister gets I request the House to move that we stand that in relation to what hon. Kiangoi was over this clause so that we do enough saying. Thank you. consultations and we get an amicable position. We may seek the advice of the Ms Nakawuki: Thank you, Mr Chairman Counsel to the Community so that we can and thank you, hon. Mathuki for that progress in harmony. This is what I am information. I am sure it will be very seeking, Mr Chairman. helpful to my honourable colleague. I have personally read that provision of the Mr Mukasa Mbidde: Mr Chairman, I was Constitution of Kenya and that very also seeking to give additional information constitution provides for the right to to hon. Mulengani that we need to look at privacy so this provision will not be clauses 29, 30 and 31 for purposes of inconsistent with any Partner State law. All supporting the proposal that we stand over I am trying to do is to come up with a solid this until we are done. This is because I find piece of legislation. When I am aggrieved, that the protection sought by the intended I should not start debating whether I should amendment is existent for purposes of go criminal or civil. Since we are providing signatures, and such viable information as

Thursday, 8 October 2015 East African Legislative Assembly Debates required other than legislating on the right The Chairman: Thank you so much. The to information, which would be, in my Speaker was just about to rule but thank you opinion, infringing on the Treaty. for aiding the Speaker’s position. Hon. Mulengani – (Interruption) - The Chairman: Honourable members, let me refresh your minds on the amendment Mr Mulengani: Mr Chairman, I rise up to as moved by hon. Susan as we may consider make clear what I requested. I said that standing over this clause with the hope that there is need for us to consult further with maybe other amendments that are coming the CTC and we cannot do that here may cure this. If they do not then we will because we shall again engage into a bring it back for consideration. dialogue with the CTC. It can be dealt with in detail when we stand over this particular Hon. Susan has moved to amend clause 9 to clause and as you guided, Mr Chairman, insert sub clause 5 to read, “For avoidance you never know as we proceed with details of doubt, the provisions in this section shall of the Bill, we may find other relevant not allow use of private information or clauses that may help us cure the challenge commercial information for any purpose we are getting with this particular clause 9. other than the purpose for which the parties agreed to when they were sharing the The Chairman: Thank you so much. The information. Partner States shall be under mover of the amendment is not obligation to protect citizens from abuse of complaining, she is patient to wait for us to their rights such as the right to privacy, progress through the Bill. Her amendment intellectual property rights and other rights is not lost; we are just holding on to it to see that relate to sharing of information.” because there are other amendments by the committee; new insertions of clauses that This is what she has moved and honourable may deal with that. We will come back to members, I think we should stand over this that so let us proceed. clause. I think it is an agreeable situation – (Interruption) - Mr Ogle: Mr Chairman, before we move further, let it be clear that the clause which Mr Mathuki: Mr Chairman, the the House was referred to earlier by hon. justification that was given by hon. Dora on page 14, which she said was Mulengani was for the Counsel to the looking ahead, is not in terms of context and Community, possibly to shed light, and the provision, similar to what hon. Nakawuki is Counsel to the Community is in the House. proposing. They are two different issues He could possibly come in and see whether curing two different challenges so we there is any contradiction, and if that is not should not be under the illusion that what the case…Since the Counsel to the she is proposing has been cured by ;looking Community is in the House, if there is at this Bill on page 14. anything that could be of conflict, he may wish to assist us so that we are clear as we The Chairman: Hon. Ogle, there is no proceed, because even if we were to stand ruling to that effect. We have only said that over the provision, it would still require as we progress through the Bill, other things some deeper understanding. could have cured that concern and if it does not cure, we will come back to clause 9, Mr Opoka Okumu: Is it in order for hon. without diluting the substance of her Peter Mathuki to raise an issue over which motion. the Speaker has already ruled that the matter was going to be stood over? However, I also request hon. Nakawuki to multiply her motion to the concerned

Thursday, 8 October 2015 East African Legislative Assembly Debates members to read through so that as we (Question put and agreed to.) progress, we will come back to that clause. You can send it for typing. The Chairman: I now put the question to clause 12, as amended by the Chair of the Honourable members, I now put the committee. question that clause 9 be stood over, pending further procedures. (Question put and agreed to.)

(Question put and agreed to.) Clause 13 The Chairman: Honourable members, the Clause 10 proposal is that clause 13 be part of the Bill. The Chairman: Honourable members, the proposal is that clause 10 be part of the Bill. Mr Mukasa Mbidde: Mr Chairman, it is I now put the question that clause 10 be part proposed by the committee that the clause of the Bill. be amended by inserting after the word “reviewed” the words “by that party”. The (Question put and agreed to.) justification is so that review of contractual terms is not limited to a contracting party’s Clause 11 representative. The Chairman: Honourable members, the proposal is that clause 11 be part of the Bill. Mr Opoka Okumu: Thank you, Mr I now put the question that clause 11 be part Chairman. I think I sent my concern about of the Bill. the amendment. As proposed, it does not make a lot of sense when you read the (Question put and agreed to.) amendment in clause 13(3). I think there is a word missing because when you read, “A Clause 12 party interacting with an electronic agent to The Chairman: Honourable members, the for a contract is not bound by the terms of proposal is that clause 12 be part of the Bill. the contract unless the terms are capable of being reviewed by that party, by a person Mr Mukasa Mbidde: Mr Chairman, it is representing that person party” - Do you see proposed by the committee, particularly where the problem is? under clause 12(4) that the clause be amended by inserting immediately after the I think the word “or” is missing after what words “provided by the sender” the words is being added “by that party or by a person “provided that such transformation does not representing that party”. That is when it can affect the integrity of the document.” The make sense. Thank you. justification is to provide for the requirement of the authorised service The Chairman: Thank you so much, hon. provider to maintain the integrity of the Chris. message it has been authorised to send on behalf of the sender. Mr Mukasa Mbidde: Mr Chairman, I am failing to understand the submission by my Dr Ndahiro: I agree with the amendment, honourable colleague because the inclusion Mr Chairman. of “by that party” is seeking first of all to protect the rights of the contracting parties. The Chairman: I now put the question on After a comma, by including “any other the amendment as moved by the Chair of third party” it also provides for the rights of the committee. a delegated right by the contracting parties. I do not find a problem with that.

Thursday, 8 October 2015 East African Legislative Assembly Debates

The Chairman: Can you read the entire (3) comfortable? It has been picked and will be as your amendment intends to be? dealt with by the drafters to put the record right as we seem to agree. Mr Mukasa Mbidde: Mr Chairman, this is how we intend that it reads: “A party I now put the question on the amendment as interacting with an electronic agent to form moved by the Chair. Maybe I need to make a contract is not bound by the terms of the this clear. Hon. Chris Opoka’ submission contract unless the terms are capable of has been understood by the Chair and has being reviewed by that party, a person been taken as a drafting matter. The Chair representing that party before the formation will incorporate that in conjunction with the of the contract.” That is how it reads, Mr draftsman of this House. So, the major item Chairman. which I am putting the question on is the amendment moved by the Chair. I put the The Chairman: Hon. Chris, does it make question to the amendment moved by the you comfortable now? Chair.

Mr. Opoka Okumu: Mr Chairman, the (Question put and agreed to.) Chair of the committee has read a comma where none has existed in the amendment Clause 13, as amended, agreed to. he is proposing. “Reviewed, by that party” then “by a person”. You have read a comma Clause 14 where there is none. The Chairman: Honourable members, the What I would suggest is that it should read, proposal is that clause 14 be part of the Bill. “… reviewed by that party or by a person I now put the question that clause 14 be part representing that party.” of the Bill.

The Chairman: Before the Chair comes Mr Mulengani: Mr Chairman, I noticed up, hon. Chris Opoka may need to help us. that we had an amendment on clause 13(4) There is an amendment on the floor, and and the Chair ought to have risen up and – procedurally you can move to cause more (Interruption) - amendments to the amendment to make it clearer. Can you please help the Chair by The Chairman: Yes. writing down what exactly you are not agreeing with in the amendment to be Mr Mukasa Mbidde: Mr Chairman, I am moved as an amendment to the amendment much obliged. It was particularly by the Chair then we will dispose of your obliterated on my own copy but I can now amendment first before we go to the main see it. amendment. The Chairman: Honourable members, Mr. Opoka Okumu: Mr Chairman, I without going into many technicalities, let propose that that particular amendment be us use the leverage you have given me as stood over so that I can draft it here. the honourable Chair to allow to correct this mistake. The Chairman: Honourable members, I think we are in tandem. We do not have to Mr Mukasa Mbidde: Much obliged, Mr get so technical on drafting matters where Chair and the House. The committee we can put the word “or”. The main intends to move an amendment on clause substance as moved by the Chair – Hon. 13(4) that the clause be amended by Chris is not in disagreement with it. Is that deleting the word “natural” wherever it

Thursday, 8 October 2015 East African Legislative Assembly Debates appears in the sub clause. The justification (Question put and agreed to.) is to accommodate contracting by non- natural persons since non-natural persons Clause 16 shall also initiate electronic transactions. I The Chairman: Honourable members, the beg to move. proposal is that clause 16 be part of the Bill. I now put the question that clause 16 be part Dr Ndahiro: I agree, Mr Chairman. of the Bill.

The Chairman: I now put the question on (Question put and agreed to.) the amendment of the – First of all before I do that, honourable members, I would like Clause 17 to put this clearly that the Chair has decided The Chairman: Honourable members, the to use the leverage of allowing a reversal on proposal is that clause 17 be part of the Bill. this mistake to correct it because we had I now put the question that clause 17 be part skipped an amendment. I am conscious of of the Bill. the difficulties in terms of procedural aspects but we are at a Committee Stage so (Question put and agreed to.) let us accommodate it. Clause 18 I now put the question on the amendment as The Chairman: Honourable members, the moved by the Chair. proposal is that clause 18 be part of the Bill.

(Question put and agreed to.) Mr Mukasa Mbidde: Mr Chairman, the committee intends to amend clause 18 by The Chairman: As I told you, I evoked replacing it with the following new clause: some bit of powers, which you have given “An expression of interest may be in the me to go back to 13. Can I now put the form of a data message and shall be an question on 13, as amended, to be part of electronic signature as long as it is possible the Bill? I put the question. to infer the interest of the person from the data message.” (Question put and agreed to.) The justification is for the best industrial The Chairman: Before we move to clause practice. 14, I would like to appeal to the Chair to help the bigger Chair to – Thank you. Dr Ndahiro: Agreed, Mr Chairman.

Clause 14 The Chairman: I now put the question that The Chairman: Honourable members, I clause 18 be deleted and insert a new (18) propose that clause 14 be part of the Bill. I as moved by the Chair. now put the question that clause 14 be part of the Bill. (Question put and agreed to.)

(Question put and agreed to.) The Chairman: I now put the question on the new clause 18 to be part of the Bill. Clause 15 The Chairman: Honourable members, I (Question put and agreed to.) propose that clause 15 be part of the Bill. I now put the question that clause 15 be part Clause 19 of the Bill. The Chairman: Honourable members, the proposal is that clause 19 be part of the Bill.

Thursday, 8 October 2015 East African Legislative Assembly Debates

The Chairman: Honourable members, the Mr Mukasa Mbidde: Mr Chairman, it is proposal is that clause 23 be part of the Bill. proposed by the committee that clause 19 I now put the question that clause 23 be part (2) (b) is replaced with the following new of the Bill. provision to read: “The data message received by the addressee resulted from the (Question put and agreed to.) action of a person duly authorised by the originator to gain access to a method used Clause 24 by the originator to identify electronic The Chairman: Honourable members, the records as records of the originator.” proposal is that clause 24 be part of the Bill.

The justification is for purposes of clarity. Mr Mukasa Mbidde: Mr Chairman, it is proposed by the committee that this clause Dr Ndahiro: I agree, Mr Chairman. of the Bill be deleted. The justification is that the committee thought we could not The Chairman: I now put the question on give private persons powers by agreement the amendment moved by the Chair. to amend or invalidate a statute. I beg to move. (Question put and agreed to.) Dr Ndahiro: I agree, Mr Chairman. The Chairman: I now put the question that clause 19 be part of the Bill. The Chairman: Honourable members, the proposal by the Chair is that clause 24 be (Question put and agreed to.) deleted. I now put the question on the amendment moved by the Chair. Clause 20 The Chairman: Honourable members, the (Question put and agreed to.) proposal is that clause 20 be part of the Bill. I now put the question that clause 20 be part Clause 25 of the Bill. The Chairman: Honourable members, the proposal is that clause 25 be part of the Bill. (Question put and agreed to.) I now put the question that clause 25 be part of the Bill. Clause 21 The Chairman: Honourable members, the (Question put and agreed to.) proposal is that clause 21 be part of the Bill. I now put the question that clause 21 be part Clause 26 of the Bill. The Chairman: Honourable members, the proposal is that clause 26 be part of the Bill. (Question put and agreed to.) I now put the question that clause 26 be part of the Bill. Clause 22 The Chairman: Honourable members, the (Question put and agreed to.) proposal is that clause 22 be part of the Bill. I now put the question that clause 22 be part Clause 27 of the Bill. The Chairman: Honourable members, the Chair speaking is noticing that very few (Question put and agreed to.) Members in the House are voting. Honourable members, the proposal is that Clause 23

Thursday, 8 October 2015 East African Legislative Assembly Debates clause 27 be part of the Bill. I now put the question that clause 27 be part of the Bill. (Question put and agreed to.)

(Question put and agreed to.) Clause 34 The Chairman: Honourable members, the Clause 28 proposal is that clause 34 be part of the Bill. The Chairman: Honourable members, the I now put the question that clause 34 be part proposal is that clause 28 be part of the Bill. of the Bill. I now put the question that clause 28 be part of the Bill. (Question put and agreed to.)

(Question put and agreed to.) Clause 35 The Chairman: Honourable members, the Clause 29 proposal is that clause 35 be part of the Bill. The Chairman: Honourable members, the I now put the question that clause 35 be part proposal is that clause 29 be part of the Bill. of the Bill. I now put the question that clause 29 be part of the Bill. (Question put and agreed to.)

(Question put and agreed to.) Clause 36 The Chairman: Honourable members, the Clause 30 proposal is that clause 36 be part of the Bill. The Chairman: Honourable members, the I now put the question that clause 36 be part proposal is that clause 30 be part of the Bill. of the Bill. I now put the question that clause 30 be part of the Bill. (Question put and agreed to.)

(Question put and agreed to.) Clause 37 The Chairman: Honourable members, the Clause 31 proposal is that clause 37 be part of the Bill. The Chairman: Honourable members, the I now put the question that clause 37 be part proposal is that clause 31 be part of the Bill. of the Bill. I now put the question that clause 31 be part of the Bill. (Question put and agreed to.)

(Question put and agreed to.) Clause 38 The Chairman: Honourable members, the Clause 32 proposal is that clause 38 be part of the Bill. The Chairman: Honourable members, the I now put the question that clause 38 be part proposal is that clause 32 be part of the Bill. of the Bill. I now put the question that clause 32 be part of the Bill. (Question put and agreed to.)

(Question put and agreed to.) Clause 39 The Chairman: Honourable members, I Clause 33 propose that clause 39 be part of the Bill. I The Chairman: Honourable members, the now put the question that clause 39 be part proposal is that clause 33 be part of the Bill. of the Bill. I now put the question that clause 33 be part of the Bill. (Question put and agreed to.)

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Clause 40 The Chairman: Honourable members, the proposal is that clause 42 be part of the Bill. The Chairman: Honourable members, the proposal is that clause 40 be part of the Bill. Mr Mukasa Mbidde: Mr Chairman, it is intended by the committee that this clause Mr Mukasa Mbidde: Mr Chairman, we be amended by inserting the following new may be guided on procedure. There is Part sub clause as (2): “A person who sends an 6, which is the Title. I think it is considered unsolicited commercial communication to a as deleted. It does not form part of any consumer under sub section (1) shall do so clause but – (Interruption) - at no cost to the consumer.”

The Chairman: It will be consequential Mr Chairman, this is intended to avoid costs based on the main amendments. incurred on unsolicited messages.

Mr Mukasa Mbidde: Much obliged. Ms Nakawuki: Thank you, Mr Chairman. I would also like to propose another small The Chairman: So there is no substantive amendment. When you look at clause 42, it amendment on clause 40 so I put – only talks about unsolicited commercial (Interruption) - communication – (Interruption) -

Mr Mukasa Mbidde: On 40, the The Chairman: Hon. Nakawuki, is it on committee is of the view that 40, the amendment moved by the Chair? particularly 1(c) is replaced with the following: “(c) The website address and Ms Nakawuki: That is a different one. email address of the person”. Mr Chairman, it is intended for clarity. The Chairman: Okay, let us first dispose of the Chair’s amendment then before I put Dr Ndahiro: I agree, Mr Chairman. the question I will invite you.

The Chairman: Honourable members, I So, I put the question on the amendment now put the question on the amendment moved by the Chair. moved by the Chair. (Question put and agreed to.) (Question put and agreed to.) Ms Nakawuki: Thank you, Mr Chairman. The Chairman: I now put the question on I just wanted to add a small amendment clause 40, as amended, to be part of the Bill. under 42(1) where the provision talks only about unsolicited commercial (Question put and agreed to.) communication but there is also non- commercial communication. I beg that we Clause 41 say “and non-commercial” because it could The Chairman: Honourable members, the be, for example, obscene messages or proposal is that clause 41 be part of the Bill. pictures. They are non-commercial but they I now put the question that clause 41 be part are a nuisance as well. of the Bill. The Chairman: Hon. Susan is helping the (Question put and agreed to.) Chair by writing her amendment but in essence, what she is saying is instead of Clause 42 specifying “commercial”, she wants to include non-commercial.

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Has anybody seconded the amendment was moved by the Chair, which I supported, moved by hon. Susan? Hon. Leonce has but now I am saying that since this seconded. Can you justify your amendment provision seeks to protect individuals from as you send it to me as well? Hon. Susan, unsolicited information; my issue is that before I subject your amendment to a vote this unsolicited information can be both or to further debate, you may be aware that commercial and non-commercial. Part 6 is consumer protection. Proceed, with that guidance. For instance, if someone sends you obscene information- For example on Facebook if Ms Nakawuki: Thank you, Mr Chairman. they hack into your account, there have What I was saying is that since this been so many cases when people hack into provision is concerned with unsolicited someone’s account and then they put commercial communication, there is also pornography. It is not commercial in any unsolicited non-commercial information. way but it is inconveniencing or For example when they send you embarrassing. That is why I am saying we pornography, it is not commercial but it is insert one other word ‘unsolicited non- inconveniencing. So how do we cater for commercial communication”. the non-commercial or those other messages that we are bombarded with and The Chairman: Thank you so much. I that irritate? think hon. Dr Ndahiro’s clarification is in the spirit of the Bill, which is a transactions So, I am saying that instead of just saying Bill. Therefore, it seems to be dealing with “commercial”, we say “both commercial commercial issues. That is the spirit of his and non-commercial”. question but you are entitled to your point of argument and the amendment as moved The Chairman: Honourable, you will have by you. a right to respond. Let the seconder first defend his secondment. Mr Kiangoi: Mr Chairman, you had properly guided that this is under consumer Mr Ndarubagiye: Thank you very much, protection. If we are to go back to the Mr Chairman. It is not only that it is very definition of consumer, you will note that it inconvenient to receive messages that you means, “A natural person who enters or cannot delete but also sometimes, it costs intends to enter into an electronic you money; they charge you. That is transaction with a supplier as the end user inadmissible. Thank you. of goods or services offered by that supplier.” Dr Ndahiro: Thank you, Mr Chairman. I need to be helped here. Is the honourable I think the non-commercial transactions are member suggesting that non-commercial outside the realm of this particular communications should also receive no provision. penalty or that they should be free of cost? Ms Byamukama: Thank you, Mr The Chairman: Hon. Susan, hon. Dr Chairman. I just wanted to augment what Ndahiro, the mover of the Bill is seeking has been said, and maybe remind my sister clarification from you. Did you get him, or that when you consider the ejusdem generis would you like him to repeat? Please rule, which means that similar things go proceed, hon. Susan. together, you cannot introduce another completely different subject matter into a Ms Nakawuki: Thank you, Mr Chairman. law which is about a particular thing and in The issue of cost was a different one that

Thursday, 8 October 2015 East African Legislative Assembly Debates this case, as hon. Kiangoi has said, the consumer has already been defined. Mr Mukasa Mbidde: Mr Chairman, the committee proposes to amend Clause 45 Maybe in view of what she has already said by: before, I think we may need to look at an access to information Act or something to (a) Replacing the words “service do with pornography or maybe utilisation provider” with the word of ICT- Maybe you may have time to look “intermediary” and deleting the at it since it is actually a problem but I word “merely”. would like to implore her to take that into (b) Inserting immediately after the account that what she is introducing is out word “access” the words “hosts, transmit or of the realm of what we are considering. stores””. Thank you. The justification, Mr Chairman, is that it is The Chairman: Thank you so much. I will intended to comply with the applicable give hon. Susan a chance to respond but the terminology. Members are saying your concern is very valid and appropriate but in the context of The Chairman: Hon. Chris Opoka, is your this law we are dealing with, how to place amendment on the amendment on the it may be a challenge. amendment of the Chair?

Ms Nakawuki: Thank you, Mr Chairman. Mr Opoka Okumu: Mr Chairman, I am I will take your advice. I concede. Thank not making any amendment. I would like to you. inquire from the Chair whether the proposed amendment applies to all The Chairman: Thank you so much, hon. instances where the words “service Susan. I now put the question that clause provider” appears in clause 45 and the word 42, as amended, be part of the Bill. “access” appears in clause 45.

(Question put and agreed to.) The Chairman: Honourable Chair, CTI, the honourable member is raising a Clause 43 clarification on the amendment. The Chairman: Honourable members, the proposal is that clause 43 be part of the Bill. Mr Mukasa Mbidde: Mr Chairman, I now put the question that clause 43 be part Clause 45 un-amended reads as follows: “A of the Bill. service provider shall not be subject to civil or criminal liability in respect of third party (Question put and agreed to.) material which is in the form of electronic records to which he or she merely provides Clause 44 access if the liability is founded on: (a) The Chairman: Honourable members, the service provider” - That is where that word proposal is that clause 44 be part of the Bill. lies – and (b) is where we find the word I now put the question that clause 44 be part “access” and “hosts, transmit, and stores”. of the Bill. It is (a) and (b).

(Question put and agreed to.) It is sub clauses (a) and (b) of clause 45 that we are seeking to amend of the substantive Clause 45 clause 45 and wherever such words appear, The Chairman: Honourable members, the I would want my honourable colleague to proposal is that clause 45 be part of the Bill. read them as amended.

Thursday, 8 October 2015 East African Legislative Assembly Debates

Mr Mukasa Mbidde: Mr Chairman, the The Chairman: Honourable members, let proposal by the committee are about (a) and me allow hon. Chris to respond to the (b) only. If hon. Opoka has great distaste for Chair’s response. these words to extend the same amendments to the others but we did not Mr Opoka Okumu: Mr Chairman, if as seek to amend them wherever they are stated by the Chair, it applies in 45(a)and found. It is only in (a) and (b). (b) then it should have been indicated clearly because the word “service provider” The Chairman: Okay, say in your appears in (2) as well and the word “access” proposal that clause 45 is amended by (a) appears three times in 45. The first time is replacing – I think you should say 45(1) and in 45(1), the second one is in 45(2) (c) and (2). It is the numberings and the insertions the third one is in 45(3) (c). that will make it streamlined. Hon. Chris, thank you for having that eagle eye but When you add the words that are meant to always, bring the proposals clear to read. appear after the word “access”, in some Immediately you identify the mischief, cases it does not make a lot of sense. Thank please propose the solution to save our you. time. Thank you so much and I think the Chair has taken note and the drafts people The Chairman: I have understood where will put it in perspective. the problem seems to arise. In the proposed amendment, clause 6 is amended by (a), (b) You are also saying we should delete and (c). If those could be (1), (2) and (3) paragraph (a) and (b) in (d). Chair, are we referring to (a), (b) and (c) in the parent Bill, together? that would bring clarity. It is not a matter of substance, which is the problem, it is Mr Mukasa Mbidde: Mr Chairman, that is numbering and how it is read. Are we in not under 45. tandem? So, I think that will be dealt with by – (Interruption) - The Chairman: Okay, thank you. May I now put the question that clause 45, as Mr Opoka Okumu: Mr Chairman, I think amended, be part of the Bill? they affect the substance because take for example 45(2) (3). The word “access” (Question put and agreed to.) appears as the last word in the whole of 45. Now if you add after it “host, transmits or Clause 46 stores” it does not make a lot of sense. The Chairman: Honourable members, the proposal is that clause 46 be part of the Bill. The Chairman: Honourable Chair, are you getting the argument of the honourable Mr Mukasa Mbidde: Mr Chairman, the member? committee proposes it that clause 46 is amended by: Mr Mukasa Mbidde: Probably I may need to hear the honourable colleague properly (a) Replacing “service provider” with as I do not see where – Did you say 2(3) or “intermediary”. 2(c)? (b) Deleting paragraphs (a) and (b). The Chairman: Hon. Chris Opoka, do you have a drafting that you think can make (c) Replacing the words “being informed” sense that you can propose? with “receiving and considering a valid complaint under section 47” and replacing

Thursday, 8 October 2015 East African Legislative Assembly Debates the word “user” with the words It is equally proposed that 47(1) (e) is “complainant or the person on behalf of deleted. All these amendments are whom the complaint is made”. proposed for purposes of clarity.

This is intended to comply with the Dr Ndahiro: I agree, Mr Chairman. applicable terminology and for clarity. The Chairman: Honourable members, I Dr Ndahiro: I agree, Mr Chairman. put the question on the amendments as introduced by the Chair of CTI. The Chairman: Honourable members, I put the question on the proposed (Question put and agreed to.) amendment by the Chair. The Chairman: I now put the question on (Question put and agreed to.) clause 47, as amended, to be part of the Bill.

The Chairman: I now put the question on (Question put and agreed to.) 46, as amended, to be part of the Bill. Clause 48 (Question put and agreed to.) The Chairman: Honourable members, the proposal is that clause 48 be part of the Bill. Clause 47 The Chairman: Honourable members, the Mr Mukasa Mbidde: Mr Chairman, it is proposal is that clause 47 be part of the Bill. proposed by the committee that 48(1) be amended by replacing the words “for the Mr Mukasa Mbidde: Mr Chairman, it is purposes of complying with this part”, “a proposed by the committee that clause 47, service provider with an intermediary”. particularly (1), is amended by replacing “a data message or an activity relating to the It is also intended that we replace paragraph data message” with “information” and (a) with the following: “monetary data replace “Service provider” with which the intermediary transmits, receives, “intermediary”. provides access, hosts or stores or…” These are intended to achieve clarity. This is intended for clarity. It is also proposed that clause 48(2) be Dr Ndahiro: I agree, Mr Chairman. amended by replacing “the Council” with “a Partner State”. This is intended to The Chairman: Honourable members, I achieve proper allocation of responsibility. put the question on – Maybe you should go through all of them then – (interruption) - Dr Ndahiro: I agree, Mr Chairman.

Mr Mukasa Mbidde: Much obliged, Mr The Chairman: Honourable members, I Chairman. It is also proposed by the put the question on the amendment as committee that 47(1) (d) is equally moved by the Chair, CTI. amended as follows: Paragraph (d) is amended by adding “including in the case (Question put and agreed to.) of material on a computer network or on the Internet, an electronic address or other The Chairman: I now put the question on information that uniquely identifies and clause 48, as amended, to be part of the Bill. locates the material” after the words “infringing the activity”. (Question put and agreed to.)

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Clause 49 the Commonwealth practice is but I have a feeling that given what our Council has The Chairman: Honourable members, the been doing in the past- When we leave the proposal is that clause 49 be part of the Bill. word “may”, the Council cannot be taken to I now put the question that clause 49 be part task at any one time if it does not come up of the Bill. with the regulations.

Honourable members, you have to bear When we use “shall”, much as it can be with me that there is always – the rate of seen not to be proper or desirable in some rising up and the rate of the Chair’s speech quarters, I think in our own House, it would may not be together so we always give be better if we had the word “shall” rather chances to colleagues to say something. than “may”.

Mr Ogle: 49(1) “a person who contravenes The Chairman: It is seconded by hon. section 42(1) commits an offence and is Dora. Hon. Taslima has moved an liable, on conviction, to a fine not amendment and I was still waiting for the exceeding $ 10,000 or to imprisonment not seconder. I thought hon. Dora was exceeding three years.” seconding. Hon. Taslima, your amendment is still a stand-alone amendment without – $10,000 when exchanged that way makes it It is seconded. I think you have more or less mandatory that any crime be paid in dollars. done the justification. Do you want to add I thought you would have had a further more? qualification to say “or the equivalent in any Partner States currency”. Mr Taslima: If I may, Mr Chairman, I just have little to say that the word “may” in law The Chairman: Honourable members, I gives leeway to anyone who is told to do would politely guide the Member that that something that he may or may not. There is is the currency of our operation under the also no yardstick on when to do it. I am Treaty. If we were in other Partner States, saying that we could have left it the way it they would talk of currency points but that is if we did not have the history that we is how we also benefit in our payment have with our Council. Because of that, in mechanism. order to make them pull their socks, if we replaced the word “may” with “shall” then I now put the question that clause 49 be part we will be in a better position to insert of the Bill. pressure on them. Thank you, Mr Chairman. (Question put and agreed to.) Ms Byamukama: Mr Chairman, I would Clause 50 like to implore my brother to take into account three points. First and foremost, a The Chairman: Honourable members, the statutory instrument is subsidiary proposal is that clause 50 be part of the Bill. legislation and if we use the word “shall,” it will mean that it is obligatory or mandatory. Mr Taslima: Mr Chairman, I thank you How will this be interpreted? The very much. I am of the opinion that clause interpretation will be such that we have 50, which says, “The Council may, by made a law but we have now made it statutory instrument, make regulations …” mandatory for the Council of Ministers to I am inclined to say that the word “may” be make regulations and yet the point that we replaced with the word “shall”. I have want to make is that it should be in the consulted and I have been told of the way Council’s wisdom to ensure that they have

Thursday, 8 October 2015 East African Legislative Assembly Debates statutory instruments to operationalize this actually done those statutory instruments, very Act. which were being talked about. Thank you, Mr Chairman. Therefore, I would like to say that, two, the Council is not a permanent feature. Let us Mr Opoka Okumu: Thank you, Mr. not look at persons within the Council, let Chairman. I would like to agree with hon. us not even look at the history because what Patricia and hon. Taslima but for different may have happened may have happened but reasons. The reason why it should be we do not have to sue the current Council “shall” is that if we look at the matter, or the persons who are in the Council or which the Council should do, but they do whatever mistakes they made to obliterate not do it – If you put “may” which is the fact that they can and should, in their discretionary and they do not do it, you will own wisdom, make sure that we have not achieve the light of day of this Bill. statutory instruments. Look at the matter, which requires to be I think the element of leaving it as “may”, prescribed (b) administrative or procedural is very important in that we do not obligate matters, which are necessary to give effect them because if they do not, for example it to this Act. This is a matter which is may also impinge on the fact that maybe the necessary an expedient to give effect to this main law will not be able to be Act. The Council should be put to task to operationalized through a statutory make those instruments and it should be instrument. obligatory for them to make it. Thank you.

So, I would like to say that I think it is The Minister of EAC Affairs, Cabinet important that we use the word “may” Secretary Ministry of E.A Affairs, because if we do not have a statutory Commerce and Tourism Kenya (Ms. instrument, even the main law may be Phyllis Kandie): Thank you, Mr. hampered. I think with these few points, I Chairman. I would like to add my voice to believe that my brother will be able to the proposal that “may” will be something appreciate that the word “may” is very acceptable to the Partner States because if important in order to ensure that we also we try to impose the laws from Arusha, it is have separation of powers and we do not going to be very difficult for the Member use the law to obligate the Council of States to implement the law. Let us give Ministers where we do not have to. Partner States room for them to domesticate it the way they see it and at the end of the Ms Hajabakiga: Thank you, Mr Speaker. I day, we will still achieve what we want to actually seconded my colleague, hon. achieve as EAC. Taslima because first of all it was almost passing because there was nobody to I say this because first of all before we even second yet I thought it was important that came up with this Bill, I think we agreed this matter be explained; the difference that the Partner States have already moved between “shall” and “may”. If we say, forward and drafted their own Bills. “shall”, this Act will not be implemented because it will require stress that they do. Secondly, in terms of execution, if we were Those requirements that are prescribed in to – I am sure that we control the this or otherwise nobody can do anything application of this Bill from Arusha, how else. So, I wanted us to debate so that then are we going to deal with issues like people can understand the difference that compliance? How are we really going to we will be putting a rope on our own necks ensure that the Partner States comply with that nobody can implement until they have the law?

Thursday, 8 October 2015 East African Legislative Assembly Debates

I think let us give room to the Partner States can even foresee a situation when you do and agree that they have the wisdom and not even need the statutory instruments. they have even moved forward in terms of drafting their own laws and that they will What I am trying to say is that if it was so pick up from this in terms of important, if the matters, which are standardisation of this law within the EAC. supposed to be in the statutory instruments were so important then they should have I say this because right now for Kenya, we been part of the main. So, if in principle we are trying to come up with rules and have not provided for them here, I think regulations on the retail and wholesale there is very little you can do in the market. It is something that has already statutory instruments because after all, the been drafted in Arusha so we are drawing statutory instruments have to be hinged on what we can from there. Therefore, let us the principles, which are already in the law. not be seen that we are carrying the hammer and trying to push an agenda that may not So I think let us not make it such that if the necessarily be something that will statutory instruments are not there, then the applicable in terms of the Partner States law cannot take effect. So, I would still like accepting the way we are going about it. to implore you that the word “may” would Thank you. make better sense in the circumstances. Let us not tie our hands. Thank you. The Chairman: Thank you so much, honourable. I think this amendment has The Chairman: Honourable members, let received enough debate and I would like to us not be repetitive about this. Unless the ask hon. Taslima, based on the debate, if he honourable Chair is bringing a very new has anything to say before I go to the mover dimension to the debate, I welcome you, sir. of the Bill. Hon. Taslima, proceed. Mr Mukasa Mbidde: Mr. Chairman, you Mr. Taslima: Mr. Chairman, why I say this will determine whether it is a new was expounded very ably by hon. Opoka. dimension when I have given it - When we say, “The Council may make (Laughter). When you look at the instruments that make regulations”, we are provision, the provision is general and not talking of the practicability of that law. specific. In mannerisms of drafting, you Saying that we leave it in the wisdom of cannot find a general provision and give whoever in the Partner States is as if we are specific instructions to ministers saying, the whole clause 50 is redundant but implementing what is generally being it is not. provided for. So, in my opinion, the word “may” needs to be retained. Pointing out 50(c) for example, matters which are necessary and expedient to give The Chairman: Honourable members that effect. Now if those matters are not brought was clarification. Please conclude so that out to whoever is going to implement this we can move as required. piece of legislation then these people will not be in a better position to – (Interruption) Mr. Taslima: Mr. Chairman, I would like - to move in tandem with the rest, let me withdraw. Ms Byamukama: Thank you, hon. Taslima for giving way. The points you are The Chairman: Thank you so much, hon. raising are very important. Does it then Taslima. I now put the question that clause mean that if we do not have statutory 50 be part of the Bill. instruments then the law is of no effect? I

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(Question put and agreed to.) Ms. Nakawuki: Thank you, Mr Chairman. Allow me to say that I am still holding on The Chairman: Honourable members, you to my proposal dearly and I am sure it does remember we stood over clause 9 on an not do any harm to this Bill. As I said earlier amendment moved by hon. Susan. Our on, this is just to handle the issue of rules require that we first finish with the improper usage by any stakeholder who clauses as they are before we go to the new will be involved in this process. So, Mr clauses. So, I presume that using our Chairman, let us appreciate the fact that this appropriate mechanisms, Members is a regional law. At this level, we should exchanged views on this clause that we not even be talking about the piecemeal stood over. legislation in Partner States because we are not all at the same level. Some Partner Hon. Susan moved and hon. Mulengani States are ahead of others but we are trying moved that we stand over this clause to wait to move as a bloc; as a single voice so why for further consultations. Can I now find can’t we just cure this once and for all in from the mover of the Bill whether he has this law that we hold so dear? any consultations or his views are still holding? I do not see that there is any problem and I would really request my honourable Dr Ndahiro: Thank you, Mr. Chairman. I colleague, hon. James Ndahiro, please. still hold my view on this particular article Thank you. because I do not think that the amendment adds a lot of value to it because protection The Chairman: Thank you. Hon. Dr is seen in other new clauses that are part of Ndahiro is standing. this Bill and we have other equally important pieces of legislation in Partner Dr Ndahiro: Mr. Chairman, as I said, I do States that provide the protection she needs. not see any value of this particular Thank you, Mr Chairman. amendment, I do not see also any problem if we leave it there because it is either there Mr. Ogle: Mr. Chairman, I have also or there. So, I can concede, Mr. Chairman. reflected on this thing and I have made (Applause) some consultations. It is still my feeling that this particular amendment adds a lot of The Chairman: Honourable members, I value. It actually enriches this Bill and I do now put the question on the amendment not want us to be so rigid and try to stop any moved by hon. Susan Nakawuki to include other amendment coming. a new 9(5) on clause 9 as circulated and I read it earlier. The point is that it is enriching, critical, and important and I implore my good friend and (Question put and agreed to.) brother, Dr Ndahiro to accept this thing with a good heart. Please. The Chairman: I now put the question that clause 9, as amended, be part of the Bill. The Chairman: Hon. Susan, the mover of the amendment, I am giving you a chance (Question put and agreed to.) to say something because we had agreed that as debate goes on, you may have The Chairman: Before we move, I think abandoned your thoughts. Can you please – the Chair has new clauses to introduce. (Interruption) - Mr. Mukasa Mbidde: Mr. Chairman, the committee is proposing new clauses that

Thursday, 8 October 2015 East African Legislative Assembly Debates have been borne out of new interactions Mr. Chairman, under (a), the Bill is with stakeholders including the interactions amended by inserting the following new of yesterday late night meeting with the clauses after 21. Clause XXX that is under Council of Ministers. It is proposed that the management of critical Internet resources. Bill is amended by inserting the following new clauses after clause 21: 1. The Minister responsible for Information and Communications Part (a) is proposed for purposes of Technology in a Partner State shall closing the gaps apparent in the Bill. designate the person to manage critical Internet resources. Part (b) is proposed for purposes of 2. The person designated in sub providing for the relying party, and section (1) shall be responsible for to provide for clarity and best keeping an up-to-date record of the practice. allocation, assignment and utilisation of critical Internet Part (c) is proposed in order to resources pursuant to the provide for legal effects, liability regulations made under this Act. and international aspects of electronic signatures. It is proposed that a new clause be inserted as follows: Part (7) on international aspects is proposed for purposes of providing (1) The minister responsible for for international aspects, and to information and communications conform to the best practice. technology in a partner state shall designate the person to manage Part (d) is for purposes of critical internet resources. recognising the importance of interoperability, not just in (2) The person designated in sub networks but also in services and section 1 shall be responsible for applications to facilitate keeping an up to date record of the competition and consumer allocation, assignment and protection. utilisation of critical internet resources pursuant to the Mr Chairman, we beg to move. regulations made under this act.

The Chairman: Thank you, honourable The Chairman: I now propose that the Chair. Our Rules of Procedure; Rule 70 amendment as introduced by the Chair be provides for this and therefore, you will read for the second time. I put the question. have to go one by one. These new provisions must come at the same stage (Question put and agreed to.) with this Bill so you will move one by one and the Clerk will read and we go through The Chairman: It is now at the same level them. You will propose them one by one and at this level, if you want to debate this and as the Clerk reads, I will propose for amendment, you can do so. There being no them to come to the second reading stage debate, I now propose that this amendment and then we debate it. Thank you. be inserted into the Bill. (Question put and agreed to.) Mr. Mukasa Mbidde: Mr. Chairman, is it the ruling that I read them verbatim one by Mr Mukasa Mbidde: Mr Chairman, under one? Most obliged. data protection, it is proposed that the

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Minister responsible for Information and (1) The minister responsible for Communications Technology shall develop information and communications a legal framework on data protection to technology in a partner state shall designate cover data retention, security, access, a public officer to be the controller of management and sharing. certification authorities for purposes of this act. Therefore, under controller, the Minister under (1) responsible for Information and (2) The controller shall set standards and Communications Technology in a Partner make provision for the cross certification State shall designate – across partner states.

The Chairman: That is a new clause. Let The Chairman: Honourable members, I us deal with the new second one first. propose that the amendment be read for the second time. I put the question. Mr Mukasa Mbidde: Much obliged. (Question put and agreed to.) A new clause to be inserted: The Chairman: Debate is open on this The minister responsible for amendment. information and communications technology shall develop a legal Mr. Mwinyi: Mr. Chairman, I wish to seek framework on data protection to clarification if there is indeed a Minister cover data retention, security, responsible for Information and access, management and sharing. Communications Technology in all the five Partner States. Thank you. The Chairman: Honourable members, I put the question that the proposal by the The Chairman: Honourable Chair CTI, Chair that the amendment be part of the Bill can you clarify? be read for the second time. Mr. Mukasa Mbidde: Indeed Mr. (Question put and agreed to.) Chairman, there is a line minister in each of the Partner States on matters to do with The Chairman: I now propose that the Information and Communication amendment be part of the Bill. Technology without necessarily adopting a similar nomenclature of naming the (Question put and agreed to.) minister. Thank you.

Mr. Mukasa Mbidde: Mr. Chairman, it is The Chairman: Any debate on this? proposed under controller that the Minister responsible for Information and Mr. Ogle: I am sorry I am taking you back Communications Technology in a Partner but the way the whole thing is worded and State shall designate a public officer to be I am not sure that I like the justification they the controller of certification authorities for have given here because these are purposes of this Act and under (2), the contributions from stakeholders. They are controller shall set standards and make just calling it, “for closing the gaps apparent provision for the cross certification across in the Bill” whatever that means. However, Partner States. I beg to move. my beef with this is the Minister responsible for Information … shall be Proposed new clause: managing this thing called critical Internet resources pursuant to some security,

Thursday, 8 October 2015 East African Legislative Assembly Debates retention, access and all these kinds of President will be the minister. What we are issues. We seem to be creating some kind trying to say is anybody in charge of that of a super Policeman who will manage our sector. affairs. It is very dangerous. The definition defines the minister and we I really want to have some further think that they have the responsibility in explanation on what it means- the Partner States to do that. As a Community justifications for inserting tense new we do not have a prison, we do not have clauses in relation to the justification they Police and as you are all aware, honourable are giving for closing the gaps apparent in members, the Customs Management Act- the Bill- whatever that means. Thank you. The way it is implemented is that the heads of revenue authorities were mentioned The Chairman: The honourable member before all our Partner States had those is first of all worried about the reason given. agencies but it is working. Maybe the Chair can… Therefore, I appeal to you that maybe the Mr. Mukasa Mbidde: Mr. Chairman, first names and positions should not hold us of all, this House has already adopted an back. Thank you, Mr. Chairman. amendment under 9(5) proposed by one of our colleagues that seeks to have protection Ms Hajabakiga: Mr. Chairman, what I of data. Now this is to provide for a wanted to cure is we can simply say, substantive law in a Partner State that is “Partner States shall…” In that way, we calculated to provide for, among others – will have cured all those issues because And of course brought by the minister, as it every Partner State knows who is actually is always done in Partner States. in charge of such matters and that will have cured the problem of imagining where they Even without necessarily writing it here, call a secretary of state and in some other the responsibility lies with the Information places they call them differently. We can and Communications Technology Minister just use the term ‘Partner States shall…” to develop a legal framework on data and we will have cured that problem. protection, to develop a legal framework to cover data retention, data security, data The Chairman: Honourable members, I access, data management and sharing. think the gist of the matter is that these are just nomenclatures but the facts as stated Mr. Chairman, these areas must be gaps in earlier is that in every Partner State we have our law because we do not yet have the these dockets. The nomenclature should not mandate to provide for the same. Tense are drag us behind. Partner States shall treat gaps that require sanctions, gaps that them as it is named in a given country. require policing, gaps that require a substantive institution that we have not I now put the question that the new clause created so far. This is at implementation as moved by the Chair be part of the Bill. level and that is the justification I can give so far. (Question put and agreed to.)

Dr Ndahiro: Thank you, Mr Chairman. I The Chairman: Honourable Chair, by way think the debate here is about of guidance, you can read the title since responsibility, and in the definitions, a members have the – Sorry, the Clerk will minister has been defined. If in any read the title then you can go through the particular Partner State, even that ICT text. Move the text now then the Clerk will project lies in the Presidency then the read.

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Mr. Mukasa Mbidde: Mr. Chairman, the For purposes of recognition of foreign committee proposes under (b) to amend the certificates and electronic signatures: - Bill by inserting a new clause after 27 for purposes of conduct of the relying party. “A 1. In determining whether or to what relying party shall bear the legal extent a certificate or an electronic consequences of its failure: (a) to take signature is legally effective, no reasonable steps to verify the reliability of regard shall be had: (a) to the an electronic signature or where an geographic location where the electronic signature is supported by a certificate is issued or the electronic certificate, to take reasonable steps (a) to signature created or used or (b) to verify the validity, suspension or revocation the geographic location of the place of the certificate and (b) to observe any of business of the issuer or limitation with respect to the certificate.” signatory.

This is intended to provide for the relying 2. A certificate issued outside the party. Community shall have the same legal effect in the Community as a The Chairman: Thank you. certificate issued in the Community if it offers an equivalent level of Mr. Mukasa Mbidde: the title of the new reliability. clause is “Conduct of the Relying Party”. 3. An electronic signature created or The Chairman: Honourable members, I used outside the Community shall put the question that the new clause as have the same legal effect in the moved by the Chair be read for the second Community as an electronic time. signature created or used in the Community if it offers equivalent (Question put and agreed to.) level of reliability.

The Chairman: At this point, if anybody 4. In determining whether a certificate has any clarification or wishes to debate the or an electronic signature offers a provision, he is at liberty. substantially equivalent level of reliability for the purposes of sub Mr. Mulengani: Mr. Chairman, when they section (2) or (3), regard shall be are making the final print it can be had to recognised international corrected. The repetitive (a) (b) creates a bit standards and to any other relevant of confusion. factors.

The Chairman: Thank you, the drafter will 5. Where notwithstanding sub sections clean it up. I now put the question that the (2), (3) and (4), parties agree as new clause as moved by the Chair be part between themselves to the use of of the Bill. certain types of electronic signatures or certificates, that (Question put and agreed to.) agreement shall be recognised as sufficient for purposes of cross Mr. Mukasa Mbidde: Mr. Chairman, it is border recognition, unless that proposed by the committee to provide for agreement would not be valid or conduct of a relying party. “A relying party effective under the applicable law.” shall bear the legal consequences – Mr Chairman, I beg your pardon.

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Mr Chairman, this is intended to provide for based upon a qualified certificate; clarity and best practice. (c) not based upon a qualified certificate issued by an accredited Mr. Mukasa Mbidde: The title for the certification service provider or not new proposed clause is “Recognition of created by a secure signature Foreign Certificates and Electronic creation device.” Signatures”. Mr Chairman, this is intended to provide for The Chairman: Honourable members, I legal effects, liability and international move that the new clause as moved by the aspects of electronic signatures. I beg to Chair be read for the second time. I put the move. question. Mr. Mukasa Mbidde: The title for the (Question put and agreed to.) proposed new clause is “Legal Effects of Electronic Signatures.” The Chairman: it is at this stage that if any Member wants to debate this new clause, The Chairman: Honourable members, I they can do so. put the question that the new clause as moved by the Chair be read for the second Honourable members, I now put the time. question that the new clause be part of the Bill. (Question put and agreed to.)

(Question put and agreed to.) The Chairman: It is at this point that you can debate if there is any debate. Mr. Mukasa Mbidde: Mr. Chairman, the committee proposes under (c) that the Bill I now put the question that the new clause be amended by inserting the following new as moved by the Chair be part of the Bill. clauses after clause 30 under the title, “Legal effects of electronic signatures: - (Question put and agreed to.)

(1) A Partner State shall ensure that Mr. Mukasa Mbidde: Mr. Chairman, the advanced electronic signatures committee proposes, under “International which are based on a qualified aspects”, that: certified certificate and which are “The Partner States shall ensure that their created by a secure creation device: certificates, which are issued as qualified (a) Satisfy the legal requirement of certificates to the public by a certification a signature in relation to data in service provider established in a third electronic form in the same manner country are recognised as legally equivalent as a hand written signature satisfies to certificates issued by a certification those requirements in relation to service provider established within the paper based data. (b) Are admissible Community if: as evidence in legal proceedings. (a) The certification service provider fulfils the (2) The Partner State shall ensure that requirements laid down in an electronic signature is not denied this Act and has been legal effectiveness and accredited under an admissibility as evidence in legal accreditation scheme proceedings solely on grounds that established in a Partner it is (a) in electronic form; (b) not State.

Thursday, 8 October 2015 East African Legislative Assembly Debates

(b) A certification service top level domain for delivery of e- provider established in the government services.” Community which fulfils Mr. Chairman, it is intended for purposes of the requirements under this closing gaps apparent in the Bill. It is Act guarantees the clustered with the localisation of public certificate or the certificate information. “Public information belonging or the certification service to a Partner State shall be hosted and stored provider is recognised under within its national boundaries.” a bi-lateral or multi-lateral agreement between the The Chairman: That is a different one. Community and third countries or international Mr. Mukasa Mbidde: It is a different one organisations.” but – (Interruption) -

This is intended to provide for international The Chairman: The justification is the aspects and to conform to best practice. same, but you will come to that one later.

Mr. Chairman, “In order to facilitate cross Mr. Mukasa Mbidde: The title for the border certification services with third proposed new clause is “Country Code countries and legal recognition of advanced Top Level Domain Names.” electronic signatures originating in third countries, the Council shall, where The Chairman: Honourable members, I appropriate, make proposals to achieve the put the question that the new clause as read implementation of standards and internal by the chair be read for the second time. agreements applicable to certification services.” We beg to move. (Question put and agreed to.)

Mr. Mukasa Mbidde: The title for the The Chairman: Debate is open. I now put proposed new clause is “International the question that the new clause be part of Aspects.” the Bill.

The Chairman: Honourable members, I (Question put and agreed to.) propose that the new clause, as proposed by the Chair, CTI, be read for the second time. Mr. Mukasa Mbidde: Mr Chairman, it is I put the question. also proposed by the committee to provide for localisation of public information. (Question put and agreed to.) “Public information belonging to a Partner State shall be hosted and stored within its The Chairman: I now propose that the national boundaries.” I beg to move. new clause be part of the Bill. Mr. Mukasa Mbidde: The Title for the (Question put and agreed to.) proposed new clause is “Localisation of Mr Mukasa Mbidde: Mr Chairman, it is Public Information.” proposed by the committee that the Bill be amended by inserting the following new The Chairman: Honourable members, I clauses before clause 38 under the title of, put the question that the new clause as “Country code top level domain names. In proposed by the Chair be read for the order to enhance the security of e- second time. government services, every public body shall utilise their respective country code (Question put and agreed to.)

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except where the delivery of goods or The Chairman: Debate is open. I now put services is done directly by the seller.” the question that the new clause be part of the Bill. This is intended again to close the gaps apparent in the Bill. (Question put and agreed to.) Mr. Mukasa Mbidde: The title for the Mr. Mukasa Mbidde: Mr Chairman, it is proposed new clause is “Tracking proposed by the committee that the Bill be Mechanisms.” amended by inserting the following clauses after clause 43, one under the title, The Chairman: Honourable members, I “Framework for identification. That Partner propose that the new clause as read by the States shall develop a framework for Chair be read for the second time. I put the identification and/or authorisation of any question. person who offers, on commercial basis, the sale, hire or exchange of goods or services (Question put and agreed to.) through an electronic transaction.” The Chairman: Debate is open. This is intended to close gaps apparent in the Bill. Ms. Hajabakiga: Thank you, Mr. Chairman. I am a member of the committee Mr. Mukasa Mbidde: The Title for the and I agree with what is contained in this proposed new clause is “Framework for provision. The only thing is to remove (1) Identification.” because you cannot have (1) when you do not have (2). It is just numbering which can The Chairman: Honourable members, I be cleaned by the draftsperson. put the question that the clause, as read by the Chair, be read for the second time. The Chairman: Thank you. Honourable members, I now put the question that the (Question put and agreed to.) new clause be part of the Bill. (Question put and agreed to.) The Chairman: Debate is open. I now put the question that the new clause be part of Mr. Mukasa Mbidde: Mr. Chairman, it is the Bill. proposed by the committee that the Bill be amended by inserting the following new (Question put and agreed to.) clause after clause 48 for purposes of establishment of interoperability system. Mr. Mukasa Mbidde: Mr. Chairman, it is “The Partner States shall develop proposed by the committee to provide for regulations and standards on tracking mechanisms. “A person offering interoperability to ensure seamless goods or services for sale, hire or exchange communication between network services through an electronic transaction shall and applications.” provide a tracking mechanism by which a customer can ascertain the status of Mr Chairman, this is intended to recognise delivery of goods or services. the importance of interoperability, not just in networks but also in services and 1. The delivery of goods and services applications to facilitate competition and obtained through electronic transactions consumer protection and choice. I beg to shall be through a duly licenced carrier, move. operator in the respective Partner State

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Mr. Mukasa Mbidde: The title for the the report of the Committee of the Whole proposed new clause is “Establishment of House be adopted. I beg to move. Interoperability System.” The Speaker: Honourable members, the The Chairman: Honourable members, I question before the House is that the report put the question that the new clause as of the Committee of the Whole House be moved by the Chair be read for the second adopted. I now put the question. time. (Question put and agreed to.) (Question put and agreed to.) BILLS The Chairman: Debate is open. I now put THIRD READING the question that the new clause be part of the Bill. The East African Community Electronic Transactions Bill, 2014 (Question put and agreed to.) MOTION MOTION FOR THE HOUSE TO RESUME Ms Patricia Hajabakiga (Rwanda): Ms. Patricia Hajabakiga (Rwanda): I beg Thank you, Mr Speaker. I beg to move that to move that the House do resume and the the East African Community Electronic Committee of the Whole House reports Transactions Bill, 2014 be read for the third thereto. time and do pass.

The Chairman: Honourable members, I The Speaker: Honourable members, the put the question that the House do resume motion before the House is that the East and the Committee of the Whole House African Community Electronic reports thereto. Transactions Bill, 2014 be read for the third time and do pass. (Question put and agreed to.) I now put the question that the East African (The House resumed, the Speaker Community Electronic Transactions Bill, presiding_) 2014 be read for the third time and do pass.

REPORT OF THE COMMITTEE OF THE (Question put and agreed to.) WHOLE HOUSE The East African Community Electronic Ms. Patricia Hajabakiga (Rwanda): Transactions Bill, 2014 Thank you, Mr Speaker. I beg to report that the Committee of the Whole House has (AN ACT OF THE COMMUNITY TO PROVIDE considered the East African Community FOR THE USE, SECURITY, FACILITTAION Electronic Transactions Bill, 2014 and AND REGULATION OF ELECTRONIC assed it with amendments. I beg to move. TRANSACTIONS TO ENCOURAGE THE USE OF E-GOVERNMNET SERVICES AND PROVIDE FOR OTHER RELATED MATTERS) MOTION FOR ADOPTION OF THE REPORT OF THE COMMITTEE OF THE WHOLE HOUSE The Speaker: Honourable members, I now declare that the East African Community Ms. Patricia Hajabakiga (Rwanda): Electronic Transactions Bill, 2014 has been Thank you, Mr Speaker. I beg to move that duly passed by this Assembly - (Applause).

Thursday, 8 October 2015 East African Legislative Assembly Debates

I would like to take this opportunity to congratulate hon. Dr Ndahiro, the mover of this Bill.

In a very special way, I would like to extend the appreciation of the House to the leadership and the membership of the CTI Committee for the good work.

This House would also like to register its appreciation to the stakeholders who have been very instrumental in enriching this Bill. This is a very important law to the Community and we are thankful for their contribution.

I thank you so much, honourable members, I congratulate you upon a work well done.

Honourable members, having sat for this long and done great work today, allow me to adjourn this House to next week, Tuesday 2.30 p.m. I thank you and House stands adjourned.

(The House rose at 5:29 p.m. and adjourned until Tuesday, 13 October 2015 at 2.30 p.m.)