The National Information Technology Agency (NITA) is attempting to mandate licenses for individual information and communication technology (ICT) professionals and private tech businesses. This initiative relies on the Fees and Charges (Miscellaneous Provisions) Act, 2022, and its 2023 Regulations. Critics contend that NITA is using this financial law to create a regulatory mandate it does not legally possess.
The core of the controversy lies in NITA's foundational laws from 2008. The National Information Technology Agency Act, 2008 (Act 771) and the Electronic Transactions Act, 2008 (Act 772) established NITA with a focus on regulating ICT infrastructure at the corporate level. Crucially, Act 772, in Section 38(1), explicitly prohibits the issuance of licenses to individuals. Data analysts and software developers using ICT resources were meant to operate outside NITA's licensing authority under this 2008 framework.
Ghana's economic growth relies heavily on its digital economy. Building trust in digital services is vital for foreign and local investment. NITA's actions are seen as a regulatory overreach that could undermine this trust. The agency has lacked detailed subsidiary laws, known as Legislative Instruments (LIs), to fully implement its broad mandates since 2008. This legislative gap has led NITA to pivot towards using the Fees and Charges Act as a basis for its licensing scheme. This approach is legally questionable. The Fees and Charges Act is a national catalog for setting prices for services. Simply listing a fee for an "IT Professional License" does not grant NITA the legal power to create or enforce such a professional requirement. Experts in statutory interpretation emphasize that general laws, like the Fees and Charges Act, cannot override specific prohibitions in older, more focused laws. The explicit ban on individual licenses in Act 772 remains the governing legal principle.
Dr. Isaac Blankson, a technology policy analyst, stated, "The agency appears to be using a financial instrument to achieve a regulatory outcome that requires specific parliamentary approval. This creates a dangerous precedent for governance." He added that this method often leads to unintended consequences for businesses and professionals. The current approach risks stifling local innovation in Ghana's burgeoning tech sector.
This situation could have wide-ranging implications for Ghana's technology sector. Local tech entrepreneurs and freelancers may face new compliance burdens and costs. International technology firms operating in Ghana might also question the stability of the regulatory environment. Stakeholders will be watching to see if NITA revises its approach or if legal challenges arise. The government's commitment to fostering a predictable and supportive digital ecosystem is being tested. The agency's ability to enforce these new licensing fees without a clear legal mandate remains uncertain.