Out of all children in Kenya about 85 percent attend primary school. 75 percent of those who complete primary education proceed to secondary schools and 60 percent of those who complete secondary school proceed to higher institutions of education which include business and vocational institutions, national polytechnics, public and private universities within the country. Over 950,000 Kenyans have furthered their education abroad with a majority of graduates from India, UK, Canada, the United States, Russia and Uganda. The growth of Kenya's education sector has exceeded expectations. After the first university was established in 1970, six other public universities and 23 private universities have been established. Although Kenya has its own universities, some parents prefer to send their children to universities outside the country. This is largely because Kenyan public universities are not as flexible with admission requirements as some foreign universities.

The growth experienced has had its fair share of implications with the level of unemployment rising every year new skilled and qualified personnel leave school and seek practical lessons in employment. The other reason the state of education has affected the job market is lack of relevant skills required. Young people from disadvantaged backgrounds are least likely to have skills for decent work. 32% of young women and 27% of young men in rural areas have less than a lower secondary education. About 60% of Nairobi’s 3 million inhabitants live in slums. In two of the poorest slums, Korogocho and Viwandani, young people make up almost a third of the population. With no secondary schools in the slums, only 19% of men and 12% of women have attended secondary school in Korogocho. Only around one in five of those aged 19-20 report having training in a trade or skill, and only half of these can use their training to earn an income.

This lack of skills will affect the lives of these young people forever. About 50% of men and 80% of women aged 15 to 24 in the slums have no income-generating activities. Of those who are employed, about 60% of men and 40% of women are in casual employment earning only around the poverty line. Around one-third work in the formal sector, but seldom in formal, salaried jobs. Most are in casual jobs with daily or short-term engagement.

Of the 48 universities in Kenya, 22 of which are public and 26 private, the University of Nairobi is the oldest university in Kenya. Majority if not all of these universities offer ICT and related courses. This has resulted in tremendous growth of the ICT sector in Kenya, as these courses are offered from certificate level to post graduate degrees evident from the number of unemployed graduates in the sector due to the stiff competition in the ICT job market.

Lack of jobs amongst these group of elite has led to an influx of home based ICT project as they are cheap to develop with the internet and a personal computer as the primary inputs. Such projects have seen innovation skyrocket to unbelievable heights such as the creation of first antivirus software in Africa which is among the latest developments that Kenyans have to offer to the world of ICT. Bunifu Snipper anti-virus is one of these innovations. This is a locally developed software designed to counter the malware menace that stands as a risk of information loss in personal computers arising from virus infections. The anti-virus is a year and a half project done by a team of nine innovators, headed by their team leader Keith Korir the founder of Bunifu Technologies which is an ICT start-up based in Baringo County.

The number of start-up enterprises in the ICT sector is growing parallel to the number of new graduates leaving educational institutions every year. The Kenyan government has done little to boost the growth of this upcoming industry, though it has proved to be a real-time solution to the unemployment issue. This has brought about the need to protect the intellectual properties coming from the ICT industry as the amount of effort involved in the development of these software’s is invaluable. Craft Silicon, Seven Seas Technologies are some but a few start-ups established in Kenya that have lived to tell a tale of success. If these start-ups were to grow to the corporations’ status, imagine how much the government stands to make from tax revenue, PAYE tax from the employees developing the industry and above all the immeasurable level of skills acquired during the projects development stages.

Not all that glitters is gold. Some of the innovations that have grown from the incubation stage to the commercial level have succeeded with some of the original innovators crying foul for not benefiting at all, or partly. The commercialisation aspect of software as an intellectual property is the most ambiguous process as most innovators are unaware of how to handle the matter. Intellectual properties have to be registered for protection prior their commercialisation. How to protect remains as a key issue and this is where innovators are all losing to well-informed investors who want to have it all. This stands as the greatest risk hindering the success of these young creative minds.

Above all, the Kenyan law doesn’t have the capacity to fully protect software innovations. Reason being, since software’s are developed using code which is merely typing specific commands into a computer. The people drafting these laws considered it indifferent from writing a book or music, which also you have to type. What they did not understand is, software are developed to drive hardware, books and music on the other hand are classified as literature.

First, let me define for you what a copyright is. The expression copyright refers to the main act which, in respect of literary and artistic creations, may be made only by the author or with his authorization. That act is the making of copies of the work. It thus underlines the fact, recognized in most laws, that the author has certain specific rights in his creation which only he can exercise (such as the right to prevent a distorted reproduction). Other rights (such as the right to make copies) can be exercised by other persons, for example, a publisher who has obtained a license from the author.

Secondly, what is a software program? A software is a written programs or procedures or rules and associated documentation pertaining to the operation of a computer system and that are stored in read/write memory. Read/write is the sequence of storing data electronically and does not in any way mean that the creation can be compared to writing books, or articles for that matter. A computer program, or just a program, is a sequence of instructions, written to perform a specified task with a computer. A computer requires programs to function, typically executing the program's instructions in a central processor. The program has an executable form that the computer can use directly to execute the instructions. The same program in its human-readable source code form, from which executable programs are derived, enables a programmer to study and develop its algorithms. A collection of computer programs and related data is referred to as the software.

From the above definitions it is evident that a software or computer program is an intangible machine, therefore from its nature it can only be classified as an invention and not as works of literature. Due to its intangible form, copyright protection comes in handy when distributing. But for the original creation, only a patent application can protect the software fully thereby giving it the economic value it deserves for commercialization. Though both of them have been developed by use of a computer, they are not similar at all. This brings the ultimate question. Why is the Kenyan intellectual property law still protecting software innovations under copyrights only? With reference to the Industrial Property Act, 2001, the law does not provide for the patenting of intangible assets (software developments) to a level that it gains the relevant value for economic exploitation, thereby denying the ICT innovators the milestone they need for self-empowerment and social independence attained from self-employment in individual projects.

Software drives productivity and innovation in almost every economic sector, helping businesses of all sizes perform better in good times and bad. Some of the top industry users of information technology (IT) are manufacturing, telecoms, financial services, construction, health, and utilities.

According to a case study conducted in the United States, ICT companies hold nearly 90,000 US patents by the year 2007. The software and related services sector employed 1.7 million people in the US in 2007. On average, workers in the software and related services sector were paid $85,600 (Ksh. 7.3 million) annually in 2007. This is 195% of the US national average, approximate double the salary of an average worker from other sectors. The software and related services sector’s real contribution to GDP exceeded $261 billion in 2007. (This was nearly twice as large as the real value added by the entire recreational, cultural and sporting sector the same year). In 2007, the software and related services sector experienced a real annual growth rate of 14%, compared with a real annual growth rate of 2% for all US industries. This sector has outpaced the rest of the economy in each year since 2003. The US packaged-software industry contributed an estimated $36 billion (Ksh. 3.1 trillion) surplus to the US balance of trade in 2008. In the United States, IT was responsible for two-thirds of total factor growth in productivity between 1995 and 2002, and virtually all of the growth in labour productivity. This has been attributed by the legal framework established to protect intellectual property rights (IPR’s). A simple imitation on how a software operates left Samsung paying a suit worth $1 billion filed by Apple, approximately Ksh. 85 billion as a result of violating a software patent earlier registered by Apple for an android operating system that operates in smart phones.

Software’s originally developed in Kenya should be patentable by nature for their functionality and not necessarily on the programming code, which is the actual invention as it produces commands that automates hardware. The economic opportunity from such a scenario will be:

  • Reduction of the unemployment rate from the current 40% (World Bank statistics) to a fraction similar to the current number of unemployed ICT innovators.
  • Royalty income arising from licensing fees payable to the innovators and investors.
  • Growth of innovations to business level will create even more job opportunities for other professions such as human resource, accountants etc.
  • Growth of an industry will have a direct positive impact to the government from reduced social cost as the living standards will improve.
  • Other benefits to the government is the broadening of the tax base as more income tax will be collected from, corporate tax payable by companies and PAYE from employees.
  • Growth in the gross exports arising from packaged software’s.

Information and communication technology is growing exponentially and Kenya is a leader in the region. A long journey starts with a single step, and with the right mindset Kenya will achieve the Vision 2030 goal of a growing economy and improved living standards. As the laptop project is yet to be implemented let us take into account that the current curriculum does not have the capacity to utilize the full potential of computers. Therefore programming classes should be introduced and offered to the pupils who receive the first phase of laptops as part of the paradigm shift in the education system.

For the economy to thrive from increased innovations in the ICT sector, the current Industrial Property Act of 2001, should be amendment and provide for patent protection on software’s thereby increasing the market value of such innovations


Evans M. Mwangi

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