KENYA
Since August 2020, last amended in April 2023
Pillar Public procurement of ICT goods and online services |
Sub-pillar Exclusion from public procurement
The National Information Communications and Technology (ICT) Policy Guidelines, 2020
According to The National Information Communication and Technology Policy Guidelines of 2020, Kenyan-built ICT solutions are preferred over any other solution in the award of public tenders. Where there are no local Kenyan businesses that meet tender requirements, the successful tenderer must provide adequate proof that they will implement a skills transfer program to local firms and personnel as part of the tender award process. Foreign companies have until August 2023 to adhere to this requirement.
Coverage ICT services
KENYA
Since December 2015, entry into force January 2016, last amended in 2022
Since April 2020
Since April 2020
Pillar Public procurement of ICT goods and online services |
Sub-pillar Other limitations on foreign participation in public procurement
Public Procurement and Asset Disposal Act, 2015
Public Procurement and Asset Disposal Regulations, 2020
Public Procurement and Asset Disposal Regulations, 2020
Section 157.8 (b) of the Public Procurement and Asset Disposal Act stipulates that a prescribed margin of preference shall be applied in the evaluation of tenders submitted by candidates offering goods manufactured, assembled, mined, extracted or grown in Kenya. Alternatively, a preference may be applied to works, goods, and services, depending on the percentage of locals' shareholding on a graduated scale as prescribed. In accordance with Section 89 of the Act, which concerns international tendering and competition, and for the purposes of Section 157.8 (b), Regulation 164 of the Public Procurement and Asset Disposal Regulations stipulates that the margin of preference shall be:
- 20% margin of preference for the evaluated price of the tender given to candidates offering goods manufactured, mined, extracted, grown, assembled or semi-processed in Kenya, and the percentage of shareholding of Kenyan citizens is more than 50%.
- 15% given to candidates offering goods manufactured, mined, extracted, grown, assembled or semi-processed in Kenya.
- 10%, where the shareholding percentage of Kenyan citizens is more than 50%.
- 8%, where the shareholding percentage of Kenyan citizens is less than 50% but above 20%.
- 6%, where the shareholding percentage of Kenyan citizens is above 5% and less than 20%.
- 20% margin of preference for the evaluated price of the tender given to candidates offering goods manufactured, mined, extracted, grown, assembled or semi-processed in Kenya, and the percentage of shareholding of Kenyan citizens is more than 50%.
- 15% given to candidates offering goods manufactured, mined, extracted, grown, assembled or semi-processed in Kenya.
- 10%, where the shareholding percentage of Kenyan citizens is more than 50%.
- 8%, where the shareholding percentage of Kenyan citizens is less than 50% but above 20%.
- 6%, where the shareholding percentage of Kenyan citizens is above 5% and less than 20%.
Coverage Horizontal
Sources
- https://web.archive.org/web/20230324153003/https://ppra.go.ke/download/the-public-procurement-and-asset-disposal-act-revised-edition-2022/
- https://web.archive.org/web/20231003074918/https://ppra.go.ke/regulations/
- https://web.archive.org/web/20241112152841/https://www.globalpublicprocurementdata.org/gppd/country_profile/KE
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KENYA
Since December 2015, entry into force January 2016, last amended in 2022
Since April 2020
Since April 2020
Pillar Public procurement of ICT goods and online services |
Sub-pillar Other limitations on foreign participation in public procurement
Public Procurement and Asset Disposal Act, 2015
Public Procurement and Asset Disposal Regulations, 2020
Public Procurement and Asset Disposal Regulations, 2020
Where the procuring entity seeks to contract with non-Kenyan firms or procure foreign goods, the Public Procurement and Asset Disposal Act requires a report detailing evidence of an inability to procure locally (Art. 155.5). On the other hand, for the purpose of ensuring sustainable promotion of local industry, a procuring entity must have in its tender documents a mandatory requirement as preliminary evaluation criteria for all foreign tenderers participating in international tenders to source at least 40% of their supplies from citizen contractors prior to submitting a tender (Art. 157.9). Notably, since 2015, an initiative dubbed “Buy Kenyan Build Kenya” has required Kenyan state ministries, departments, and agencies to procure at least 40% of their supplies locally. Furthermore, the Act calls for at least 30% of government procurement contracts to go to firms owned by women, youth, and persons with disabilities (Art. 157.10).
In addition, the Public Procurement and Asset Disposal Regulations of 2020 mandate that tender proposals include skills and knowledge transfer to Kenyan citizens, a 75% set aside of employment opportunities for Kenyans, and a local content plan (Art. 144).
In addition, the Public Procurement and Asset Disposal Regulations of 2020 mandate that tender proposals include skills and knowledge transfer to Kenyan citizens, a 75% set aside of employment opportunities for Kenyans, and a local content plan (Art. 144).
Coverage Horizontal
Sources
- https://web.archive.org/web/20231202025818/https://ppra.go.ke/
- https://web.archive.org/web/20221215081051/https://www.treasury.go.ke/wp-content/uploads/2020/11/Public-Procurement-and-Asset-Disposal-Regulations-2020.pdf
- https://ustr.gov/sites/default/files/2022%20National%20Trade%20Estimate%20Report%20on%20Foreign%20Trade%20Barriers.pdf
- https://www.tralac.org/documents/resources/by-country/kenya/576-buy-kenya-build-kenya-strategy-june-2017/file.html
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KENYA
Since December 2015, entry into force January 2016, last amended in 2022
Pillar Public procurement of ICT goods and online services |
Sub-pillar Other limitations on foreign participation in public procurement
Public Procurement and Asset Disposal Act, 2015
Section 157.4 of the Public Procurement and Asset Disposal Act stipulates that reservations and preferences shall be applied to candidates belonging to disadvantaged groups, micro, small and medium enterprises, identified regions, and other categories as may be prescribed.
Coverage Horizontal
KENYA
Reported in 2019, last reported in 2024
Pillar Public procurement of ICT goods and online services |
Sub-pillar Other limitations on foreign participation in public procurement
Lack of transparency in public procurement
It is reported that foreign firms have had very limited success bidding on Kenyan Government tenders. There are widespread reports that corruption often influences the outcome of public tenders, and many of these tenders are challenged in the courts. Foreign firms, some without proven track records, have won government contracts when partnered with well-connected Kenyan firms or individuals. As of January 2019, all tenders and procurements are required to be undertaken through the Kenyan Government’s electronic procurement system, the Integrated Financial Management Information System (IFMIS). Certain foreign companies have expressed concerns about IFMIS due to insufficient connectivity and technical capacity in county government offices, apathy from county government officials, central control shutdowns, and security gaps that render the system vulnerable to manipulation and hacking.
Coverage Horizontal
Sources
- https://web.archive.org/web/20240401062609/https://ustr.gov/sites/default/files/2024%20NTE%20Report_1.pdf
- https://web.archive.org/web/20231218171205/https://ustr.gov/sites/default/files/2019_National_Trade_Estimate_Report.pdf
- https://web.archive.org/web/20231203095436/https://ustr.gov/about-us/policy-offices/press-office/press-releases/2022/march/ustr-releases-2022-national-trade-estimate-report-foreign-trade-barriers
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KENYA
Since August 2020, last amended in April 2023
Pillar Public procurement of ICT goods and online services |
Sub-pillar Other limitations on foreign participation in public procurement
The National Information Communications and Technology (ICT) Policy Guidelines, 2020
Section 4.3 (Skills and Innovation) of the National ICT Policy Guidelines 2020 establishes that skills transfer to local firms and personnel is a mandatory requirement to win public tenders.
Coverage Horizontal
Sources
- https://web.archive.org/web/20220217093805/https://ca.go.ke/wp-content/uploads/2020/10/National-ICT-Policy-Guidelines-2020.pdf
- https://web.archive.org/web/20230322230658/https://www.bowmanslaw.com/insights/technology-media-and-telecommunications/publication-of-the-national-information-communication-and-technology-policy-guide...
- https://web.archive.org/web/20220812100547/https://mmsadvocates.co.ke/review-kenya-ict-policy-2020/
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KENYA
N/A
Pillar Public procurement of ICT goods and online services |
Sub-pillar Signatory of the World Trade Organization (WTO) Agreement on Government Procurement (GPA) with coverage of the most relevant services sectors (CPC 752, 754, 84)
Lack of participation in the WTO Agreement on Government Procurement (GPA)
Kenya is not a party to the World Trade Organization (WTO) Agreement on Government Procurement (GPA) nor does it have observer status.
Coverage Horizontal
KENYA
Since October 1998, entry into force in February 1999, as amended in 2020
Since August 2020, until August 2023
Since August 2020, until August 2023
Pillar Foreign Direct Investment (FDI) in sectors relevant to digital trade |
Sub-pillar Maximum foreign equity share
Kenya Information and Communications Act, 1998
The National Information Communications and Technology (ICT) Policy Guidelines, 2020
The National Information Communications and Technology (ICT) Policy Guidelines, 2020
Paragraph 6.2.4 of the National Information Communication and Technology Policy Guidelines of 2020 mandated that a company must have at least 30% substantive Kenyan ownership to be licensed by the Communication Authority to provide ICT services in Kenya. This requirement applied until August 2023 when, through Gazette Notice 11079 dated 22 August 2023, the Kenyan Cabinet Secretary for Information, Communications, and the Digital Economy formally announced the deletion of the paragraph. According to Section 2 of the Kenya Information and Communications Act, information and communication technologies encompass the technologies used in collecting, storing, using, or transmitting information, including those involving computers or any telecommunication system. This definition includes ICT, telecommunication, and audiovisual services. Previously, this ownership requirement was 20% for telecommunications licensees.
Coverage ICT services, telecommunication, broadcasting sectors
Sources
- https://web.archive.org/web/20220121023554/https://www.ca.go.ke/wp-content/uploads/2021/02/Kenya-Information-and-Communication-Act-1998.pdf
- https://web.archive.org/web/20220217093805/https://ca.go.ke/wp-content/uploads/2020/10/National-ICT-Policy-Guidelines-2020.pdf
- https://web.archive.org/web/20230322230658/https://www.bowmanslaw.com/insights/technology-media-and-telecommunications/publication-of-the-national-information-communication-and-technology-policy-guide...
- https://web.archive.org/web/20221117030224/https://www.ca.go.ke/industry/telecommunication/licensing-procedure/
- https://web.archive.org/web/20240613044948/https://bowmanslaw.com/insights/kenya-cabinet-secretary-removes-local-equity-requirement-for-all-ict-sector-players-with-immediate-effect/
- https://web.archive.org/web/20240519040422/https://gazettes.africa/akn/ke/officialGazette/government-gazette/2023-08-22/187/eng@2023-08-22
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KENYA
Since May 2002
Pillar Intellectual Property Rights (IPRs) |
Sub-pillar Practical or legal restrictions related to the application process for patents
Industrial Property Act No. 3 of 2001
According to Art. 34.2 of the Industrial Property Act of 2001, an applicant whose ordinary residence or principal place of business is outside Kenya is obliged to be represented by an agent who shall be a citizen of Kenya admitted to practice before the Kenya Industrial Property Institute.
Coverage Horizontal
KENYA
Since June 1994
Pillar Intellectual Property Rights (IPRs) |
Sub-pillar Participation in the Patent Cooperation Treaty (PCT)
Patent Cooperation Treaty (PCT)
Kenya is a party to the Patent Cooperation Treaty (PCT).
Coverage Horizontal
KENYA
ITA signatory?
I
II
Pillar Tariffs and trade defence measures applied on Information and Communication Technology (ICT) goods |
Sub-pillar Effective tariff rate on ICT goods (applied weighted average)
Effective tariff rate to ICT goods (applied weighted average)
7.29%
Coverage rate of zero-tariffs on ICT goods (%)
44.05%
Coverage: Digital goods
Sources
- http://wits.worldbank.org/WITS/
- https://www.wto.org/english/news_e/brief_ita_e.htm#:~:text=ITA%20participants%3A%20Australia%3B%20Bahrain%3B,%3B%20Jordan%3B%20Korea%2C%20Rep.
- https://www.wto.org/english/res_e/booksp_e/ita20years_2017_full_e.pdf
- https://web.archive.org/web/20220120054410/https://trade.ec.europa.eu/doclib/docs/2016/april/tradoc_154430.pdf
- https://www.wto.org/english/tratop_e/inftec_e/itscheds_e.htm
KENYA
N/A
Pillar Tariffs and trade defence measures applied on Information and Communication Technology (ICT) goods |
Sub-pillar Participation in the World Trade Organization (WTO) Information Technology Agreement (ITA) and 2015 expansion (ITA II)
Lack of participation in Information Technology Agreement (ITA) and in ITA Expansion Agreement (ITA II)
Kenya is not a signatory of the 1996 World Trade Organization (WTO) Information Technology Agreement (ITA) nor the 2015 expansion (ITA II).
Coverage ICT goods
Sources
- https://www.wto.org/english/news_e/brief_ita_e.htm#:~:text=ITA%20participants%3A%20Australia%3B%20Bahrain%3B,%3B%20Jordan%3B%20Korea%2C%20Rep.
- https://www.wto.org/english/res_e/booksp_e/ita20years_2017_full_e.pdf
- https://web.archive.org/web/20220120054410/https://trade.ec.europa.eu/doclib/docs/2016/april/tradoc_154430.pdf
- https://www.wto.org/english/tratop_e/inftec_e/itscheds_e.htm
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KENYA
Since December 2015, entry into force January 2016, last amended in 2022
Pillar Public procurement of ICT goods and online services |
Sub-pillar Exclusion from public procurement
Public Procurement and Asset Disposal Act, 2015
According to Section 157.8 of the Public Procurement and Asset Disposal Act, exclusive preferences are given to citizens of Kenya where the funding is 100% from the national government, county government or a Kenyan body, and the amounts are below the prescribed threshold. The prescribed threshold for exclusive preference should be above five hundred million shillings (approx. USD 3,600,000)
Coverage Horizontal
KAZAKHSTAN
N/A
Pillar Online sales and transactions |
Sub-pillar Ratification of the United Nations (UN) Convention on the Use of Electronic Communications in International Contracts
Lack of signature of the UN Convention on the Use of Electronic Communications in International Contracts
Kazakhstan has not signed the United Nations (UN) Convention on the Use of Electronic Communications in International Contracts.
Coverage Horizontal
KAZAKHSTAN
N/A
Pillar Online sales and transactions |
Sub-pillar Adoption of United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce
Lack of adoption of UNCITRAL Model Law on Electronic Commerce
Kazakhstan has not adopted national legislation based on or influenced by the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce.
Coverage Horizontal