Electronic Signatures in Botswana

The Act distinguishes between an “electronic signature” and “secure electronic signature”.

The Act defines an “electronic signature” as “data in electronic form attached to or logically subjoined to an electronic communication, and which can be used to identify the signatory (method of authentication) and indicate consent for the information contained in the said communication”.

On the other hand, a “secure electronic signature” is an electronic signature authenticated and recognised by products or services accredited by the Botswana Communications Regulatory Authority. (Section 26)

Section 6 continues that subject to Part V, where any law requires the signature of a person, that requirement is met if

1. the signature is given in relation to an electronic communication or transaction and there is a method which is used to identify that a person’s approval of the information contained in the electronic communication or transaction or,
2. which having regard to all the relevant circumstances, is as reliable as was appropriate for the purpose for which the electronic communication or transaction was generated or communicated.

The Requirements for Electronic Signatures (and not SECURE Electronic Signatures) are set out in Section 25.

1. the signature creation data is linked to the signatory and to no other person;
2. the signature creation data was under the control of the signatory and no other person; and
3. any alteration made, after the time of signing, to the electronic signature or the information to which it relates will be detectable.

Documents which require a secure electronic signature:

1. Where law requires a signature, statement or document to be notarised or verified.
2. Where law requires or permits a person to provide a certified copy of a document and the document exists in electronic form or in paper form.

Documents which cannot be signed electronically:

1. A Will
2. Declaration of trust of Power of Attorney
3. Contract of sale or disposition of immovable property, or interest in immovable property
4. Transfer or conveyance of immovable property

As for foreign signatures and certificates:

Section 31 (2) states that a certificate issued outside Botswana shall have the same legal effect in Botswana as a certificate issued in Botswana if it offers a substantially equivalent level of reliability. Section 31 (3) gives the same status to signatures created outside of Botswana.