Electronic Signatures in Ghana

The Electronic Transactions Act of 2008 in Ghana

Electronic Signatures in Ghana

The Electronic Transactions Act of 2008 permits the use of digital signatures in Ghana.

“digital signature” means data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature;

However, while digital signatures are widely accepted in Ghana, the use of an electronic signature is not unlawful and there is currently provision made for this in the Act with certain requirements to be met.

Legality of Electronic Signatures in Ghana

Section 12 of the Electronic Transactions Act provides that “A person may sign an electronic record by affixing a personal digital signature or using any other recognised, secure and verifiable mode of signing agreed by the parties or recognised by the industry to be safe, reliable and acceptable”

SigniFlow Software complies with all aspects for the provisioning of electronic signatures and the requirements to host a digital signature in Ghana as provided for in the Electronic Transactions Act of 2008, however, there is currently draft regulations being reviewed by the Ghanaian National Information Technology Agency, which will have the effect the digital signature providers and a new “advanced electronic signature” provider, will need to be registered by the agency and have a DEEV footprint in Ghana.

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“authentication products or services” means products or services designed to identify the holder of an electronic signature to other persons;

“authentication service provider” means a person whose authentication products or services have been accredited by the Certifying Agency under this Act;

“Agency” means the National Information Technology Agency; “certification service provider” means a person providing an authentication product or service in the form of a digital certificate attached to, incorporated in or logically associated with an electronic record;

“electronic communication” means a communication by means of electronic records;

“electronic record” includes data generated, sent, received or stored by electronic means (a) voice, where voice is used in an automated transaction; and (b) a stored record

The current Ghanaian law does not limit parties right to choose the nature or kind of software they can use for their e-signatures. However, the above factors must be considered in choosing an appropriate means or software in executing contracts or documents by way of e-signatures. Parties must ensure that in adopting a software for electronic signatures it takes into consideration the following factors, in order for the electronic signature to be legally binding:

• Intent to sign- electronic signatures are valid only if a user demonstrates a clear intent to sign.
• Consent to do business electronically- the parties must either express or imply their consent to do business electronically.
• Association of signature with the record- it is important for electronic signatures to be connected to the document that is being signed with them.
• Clear signature attribution- the context and circumstances under which the document was signed can indicate the attribution of an electronic signature.
• Record retention- electronic signature records are valid as long as they accurately reflect the agreement and can be reproduced as and when required.

Documents which cannot be signed electronically:

(a) a negotiable instrument as defined in the Bill of Exchange Act, 1961 (Act 55);

(b) the grant of a power-of-attorney under the Powers of Attorney 8 Electronic Transactions Act, 2008 Act, 1998 (Act 549);

(c) a trust as defined in the Trustees Incorporation Act, 1962 (Act 106);

(d) a will as defined in the Wills Act, 1971 (Act 360);

(e) a contract for the sale or conveyance of immovable property or any interest in the immovable property; (note- this is being reviewed currently by Ghanaian Legislation but is only in draft)

(f) bills of lading;

(g) documents required for the registration of a company, Partnership or sole proprietorships;

(h) the swearing of affidavits or statutory declarations before a Commissioner for Oaths or Notary Public; and

(i) any class of documents or transactions that may be notified by Gazette.

Disclaimer

The information in this document is provided for general informational purposes only and is the opinion of the author only. No information contained in this document should be construed as legal advice from SigniFlow or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this document should act or refrain from acting on the basis of any information included in, or accessible through, this document without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.