The COVID-19 pandemic has presented challenges to the manner in which parties execute contracts/ agreements. Traditionally this challenge has been resolved by having parties enforce agreements in counterparts. The pandemic creates a unique environment where “electronic signatures” can become an established practice. This legal alert aims at addressing the issue of whether electronic contracting is permitted in Zambia. It will explain the two types of electronic signatures and when they may be used. It will also address the types of contracts that cannot be concluded electronically and what parties need to do to be able to sign documents electronically.

27 August 20

Is Electronic Contracting Permitted in Zambia?
Yes, electronic contracting is permitted in Zambia. The Electronic Communications and Transactions Act No 21 of 2009 (the ECT Act) provides that it is a “requirement in law that a document or information shall be in writing shall be met if the document or information is in the form of a “data message” and is accessible in a manner usable for subsequent reference”. The term “data message” is defined as “data” generated, sent, received or stored by electronic means and included a voice, where the voice is used in an automated transaction and a stored record.

The term “data” is defined as “electronic representations of information in any form”. Accordingly, as the “electronic contract” would be “generated, sent, received and comprise of electronic representations of information in any form”, the electronic contract would be considered to be a “data message” for purposes of the ECT Act and as such, the presentation of the agreement in electronic form would satisfy the requirement in any law to have that document or information in
writing. Despite the contract being concluded electronically, it would still have legal force and effect.

What can Parties Do to Sign Documents Electronically?
In order to sign documents electronically, parties should ensure the following:

  1. If using an “ordinary” electronic signature, they should utilise a method that specifically identifies the party and their approval of the information communicated and the method utilised should be reliable for the purposes for which the information was communicated;
  2.  An advanced electronic signature should be used in all documents for which the law requires a signature and the type of signature is not specified;
  3.  If the party uses an advanced electronic signature, they should ensure that it is unique to the user, capable of verification, under the sole control of the person using it and linked to the data conveyed in such a manner that if the data is changed, the signature is invalidated; and
  4. The party should be aware that wills or codicils, bills of exchange and guarantees cannot be signed electronically.

Should you have any questions on this legal alert, please do not hesitate to contact Partner, Chanda Musonda – Chiluba or Senior Associate,  Emmanuel Manda.