TOPIC: BLOCKCHAIN AND THE LAW; CASE STUDY OF DIGITALIZATION OF AND REGISTRIES IN KENYA
SANG DOREEN CHEPKOECH
TABLE OF CONTENTSPAGE
RESEARCH HYPOTHESIS 3
RESEARCH METHODOLGY 4
CHAPTER BREAKDOWN 4
Development in information technology has encouraged the strongest form of change in the society.The need for digitalization has been fuelled by the introduction of a new technology known as ?blockchain? in 2009. This research will look at the adoption of the new technology in public sector and specifically in Land Registries in Kenya and address its legality.[Karios Future, ?The land Registry in Blockchain? (2016)https://www.google.com/url?sa=t&source=web&rct=j&url=http://ica-it.org/pdf/Blockchain_Landregistry_Report.pdf&ved=2ahUKEwj675CAwODqAhWTAGMBHYxiAg8QFjAAegQIAhAB&usg=AOvVaw2j2Ui8wfv-t-h__JtnufY- last accessed 22nd July 2020] [Bitcoin: ?A Peer-to-Peer Electronic Cash System? https://bitcoin.org/bitcoin.pdf last accessed 22nd July 2020]
Blockchain technology was introduced to the world in 2009 when Satoshi Nakamoto launched Bitcoin software. Later on the software was handed over to Gavin Andersen. The technology known as blockchain is a digital systematic way of storing and retrieving information. The information is stored in a decentralized manner to ensure integrity and enhance immutability.[Brosker, B. Gavin Andersen, Bitcoin Architect: Meet The Man Bringing You Bitcoin And Getting Paid in it, Huff Post Tech] [Murray Maryanne, ?Blockchain Explained?(Reuters Graphics 15th June 2018)http://graphics.reuters.com/technology-blockchain/010070p11gn/index.html accessed 7th August 2020]
Land registries in Kenya are established by the Land Registration Act under section 6. In February 2019, the Ministry of Land & Physical Planning filed a report titled Report on Electronic Land Transactions Registration, Conveyance and other related Activities under Land Registration Act, 2012, the Land Act 2012 and Community Land Act. The report detailed the government effort to digitalize land records. This shows the willingness of the government to embrace technology; this study will look into to the findings of the report.[Land Registration Act, 2012, section 6] [Ministry of Land and Physical Planning, ?Report Electronic Land Transactions Registration, Conveyancing and other related Activities under Land Registration Act, 2012, The Land Act 2012 and Community Land Act ? (REF:DT/MOLPP/122/0119/2019) https://www.google.com/url?sa=t&source=web&rct=j&url=https://lands.go.ke/wp-content/uploads/2020/03/Final-Report-Signed.pdf.pdf&ved=2ahUKEwiFsaWRz-DqAhWrxoUKHYnxAxMQFjAAegQIAhAB&usg=AOvVaw1B6lhKzqQJtzLaVbVQnXgU last accessed 1016 hours 1stAugust 2020]
It is no doubt that blockchain technology will improve service delivery, proper record keeping, accountability and transparency these are some of the advantages of this technology as was noted during the 2015 World Economic Forum.[World Vision Forum ?Realising the Potential of Blockchain: A Multi-stakeholder Approach to Stewardship of Blockchain & Cryptocurrency.? (White Paper, REF:2406 17-00034436 2017)]
To fully appreciate the potential of blockchain technology consider this: a law firm stores documents belonging to a client in a digital folder, the clients folders are then all arranged in chronological order for easy access, then protected by a password. The process of collecting related folders is called bundling of data into blocks. These blocks are added up to form a chain that is as a result of a mathematical algorithm.Blockchain is a ?one way? process in that once the process is done it cannot be tampered with. It can only be updated to reflect ne transactions. This ensures that the information is secured.This research paper will discuss what blockchain entails it?s functionality in land registries and its legality.[Murray Maryanne, ?Blockchain Explained?(Reuters Graphics 15th June 2018) paragraph 3-5 http://graphics.reuters.com/technology-blockchain/010070p11gn/index.html accessed 7th August 2020] [C. Burniske and J Tatar, ?Cryptoassests The Innovative Investor?s Guide to Bitcoin and Beyond ?,(14th edition McGrawHill Education 2017) page 5-9]
2 Literature review
The relevant legislations to guide this study are the Constitution of Kenya, the Kenya Information Communication Act, Land Registration Act, the Land Act and the Data Protection Act.This work is inspired by articles and works of many scholars who have expressed their views in use of blockchain system in public sector and the challenges facing land registration in Kenya.[Constitution of Kenya, 2010] [Cap 411 A, Laws of Kenya] [Cap 300, Laws of Kenya] [No. 24 of 2019, Laws of Kenya]
The authors John Harrington and Ambreena Manji clearly outline the biggest issues facing public sector in Kenya this being corruption. The article highlights land grabbing and how the legal profession has been exploited by well-connected individuals. Through an examination of The Report of the Land Commission of Inquiry into the Illegal or Irregular Allocation of Land 2004. The authors noted that the commission on land has for a long time been allowing those involved in land corruption to hide their true identity. In the article Real Estate Gazette the authors highlight the advantages of blockchain technology in land registries in Kenya. This article in a step by step format looked at how Kenya introduced the technology into land registries. The article noted that the digitization process in Kenya begun in April 2014 with the Ministry of Lands and Physical Planning launching phase one. The ministry used blockchain technology, however in a report by the ministry, there were a number of challenges that arose during phase one of the digitization process. The biggest challenge was the lack of technological knowledge and experience especially in rural parts of the country. The other challenge which this research paper will focus on is the lack of a proper legal framework to back the new technology.[John Harrington and Ambreena Manji, ?Satire and the Politics of corruption inKenya? ( published on 9th December 2012), Sage Publication/Journals Permission] [Commission of Inquiry, Report of the Land Commission of Inquiry into the Illegal or Irregular Allocation of Land 2004.] [Olaf Schimidt, Real Estate Gazette, ?Systemic Shift How Innovation Digitization and The Next Generation are Changing The Real Estate Industry? (2018)]
This paper will examine the nature, origin and legality of blockchain technology. Blockchain technology developed in the finance sector with the introduction of crypto currency. In the Library of Congress Report on Regulation of Crypto currency around the world, institutional regulators across the globe are warned of the dangers facing the public when one invests in crypto currency. The report states the dangers of the technology being that it lacks proper substantive and procedural regulations or guidelines. Similar to crypto currency the use of unregulated technology in delivery of public service poses a huge risk to the public. The book Legal Recognition of Blockchain and Smart Contract focuses on the legality of blockchain technology in the EU and the UK. However he does not limit his study to these jurisdictions. The book lists two possibilities. Firstly, that a thorough analysis could reveal that it is not necessary or relevant to recognise blockchain technology. Secondly, that the decentralized nature of the technology could negate all prior laws hence the urgency in developing firm legal framework.[The Law Library of Congress, Global Research Center, ?Regulation of Cryptocurrency Around The World? June 2018]
3 Research Question
What legal reforms would be necessary to support use of blockchain technology?
4 Research Hypothesis
Historical land injustice in Kenya have for a long time rendered the poor disadvantaged. The lack of transparency in the land registry and the hectic manual process has discourage growth and development of the economic sector It goes without saying that there is need for change. The question then remains is we ready for the change?
This research is informed by three major hypotheses. First, the legality of blockchain technology. Second, the need for a digitalized land registry, transparency will enable the public to keep public servants in check hence ensuring land in Kenya is used in a manner that is equitable, efficient, productive, and a sustainable manner. Third, the lack of a proper regulatory framework that is hampering growth and development[Aaron Wright and Primavera Filipi, ?Decentralized Blockchain Technology and the Rise of Lex Crypographia ? https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2580664 last accessed 7th August 2020]
5 Research Methodology
A qualitative approach is what I have taken in this research informed by primary and secondary sources of literature. It will focus on examining diverse literature both sourced locally and internationally sourced touching on blockchain technology in public sector. It will also look into the remarks made by judicial and regulatory bodies.
Registration of land in Kenya has over the years been marred with corruption and cases of lost and mismanaged documents, a solution to this problem has been long overdue. A good number of cases in the Environment and Land Court ar…