How to normalize the use of digital signature in Africa?
The Covid-19 pandemic accelerated the dematerialization of exchanges and transactions: during this time, videoconference applications have become almost vital, as did digital signature, which has developed worldwide. E-signature is a key tool, not only for the swiftness of business transactions, but also for environmental reasons: it saves considerable time, as signatories sign through their electronic devices, without the need to print, be physically present, or to send the documents to sign by post
So where does the development of e-signature currently stand in Africa?
The situation is of course not uniform in all countries, nevertheless it is possible to draw a general observation: the use of e-signature remains rare. In such conditions, what can be recommended for it to be used more commonly?
A favorable legislative and regulatory framework
Many African countries authorize the use of e-signature and fully recognize its validity. In most of them, the implementation of digital signature per se does not cause any difficulty. The situation is different in some other countries where the law entrusts public administration with power to approve e-signature providers or to certify e-signature processes before they are put into service in the market. While we can wish for a control of e-signature processes by public authorities, in particular to protect consumers, the role of filter played by these authorities can discourage some providers to operate in these markets, because of the complexity of procedures. For instance, in Ivory Coast, e-signature operators must be approved by the telecommunications regulation authority (ARTCI), and, as of today, only one decree approving three operators has been adopted in 2016. Finally, there are a few countries where e-signature is still not authorized, as it is the case in Democratic Republic of Congo.
An efficient communication
The rare use of e-signature can be explained by one simple reason: it is unknown. Professionals as well as the public do not sufficiently know this tool to use it with comfort and confidence. Efforts of communication are therefore needed to inform on its existence and reassure on its legal validity. This pedagogical work should especially be directed at public administration, which is often trained to an implacable bureaucracy, and which can be suspicious when it comes to recognize e-signature processes. This is key, as the virtualization of exchanges with public administration could be an important accelerating factor for all operators.
On the other hand, many companies, which are subject to tight business calendars, use e-signature internally, without being able to extend this use to interactions with other professionals, public administration, or clients.
Overcome the technical challenge
Global leaders of e-signature do not systematically offer their services in African markets. This is due to different factors: lack of demand, tax or payment restrictions, or difficulty to penetrate some markets due to regulatory reasons.
This may be the opportunity for local providers to develop their services, and to meet the technical challenge represented by e-signature. If we refer to the Ghanaian legislation, “a digital signature is deemed to be authentic if the means of creating the digital signature is, within the context in which it is used, linked to the signatory and not to another person”. Digital signature therefore requires, to be used on a large scale, the implementation of an automated process of identification of signatories and certification of signatures. For providers operating in Western markets, this process relies on the signatory’s e-mail address. However in Africa, as far as the public is concerned, most of the people do not have or do not use their e-mail address. It is however possible to adapt to this context, knowing that Africans are used to carry out e-money transactions on their smartphone. We could imagine identification through a mobile phone number, taking into consideration the volatility of such data, or an automated process with an identification document, made in compliance with relevant data protection regulations.
We must again insist on the fact that the process must be automated, which means that it should not require any human intervention. We have indeed seen providers proposing manual certification of signatures, which can be counterproductive with regard to swiftness objectives.
Adapt to the “African market”
Digital signature operators as well as economic actors offering goods and services must adapt to the reality of the local market. A signature based on complex contractual terms drafted in a language that the client does not understand will necessarily be exposed to risks of invalidation due to uninformed consent. It is therefore necessary to provide explanation of main contractual terms, delivered by a commercial agent, or even better, a translation with an audio device included in the application.
One thing is certain, providers must adapt to the local context and coordinate with legal experts in order to ensure the legal validity of digital signature processes.
