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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 execute agreements in counterpart. The pandemic creates a unique environment under which the use of “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.
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 includes 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 contract 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: