Covid-19: The notary law does not reflect social distancing

Tuesday June 9 2020

 

JEAN NEPOMUSCENE MUGENGANGABO
By JEAN NEPOMUSCENE MUGENGANGABO
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The practice of notary profession is regulated by the Law no 13bis/2014 of 2014 governing the office of notary.

One of the novelties brought by the Notary Law was to allow private persons access to the notary profession not only as a way of making notary services more accessible but also as way of going farther in line with “doing business.”

Amid Covid-19 pandemic where social distancing is the best way to respond to that situation, people across the globe are being urged to stay and work from home, except those delivering essential services, in the case of Rwanda.

However, even if notary services were not considered as one of the essential services, offering some of the essential services, such as loan, mortgage registration or many of the services offered by the Office of the Registrar General, requires the intervention of a notary while the Notary Law provides that a notary certifies or authenticates documents or signatures that s/he witnesses physically.

Building on that fact, one may then wonder whether today would not be the right time to adapt notary services to social distancing requirements, the current speed of business and emerging technologies wherever possible.

Such a thought came in my mind after several clients of mine called me asking whether there is a way I could serve them other than meeting them physically, to which I responded negatively considering the provisions of the Notary Law.

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But I kept asking myself whether the Notary Law still fits the today’s needs of businesses to which notaries are supposed to be serving, then I ended up writing this article.

Unlike the Notary Law, the law n°24/2016 of 18/06/2016 Governing Information and Communication Technologies (the “ICT Law”) recognises electronic government services, and the legality of electronic records and electronic messages especially in its Article 135, which stipulates that where a law requires any information to be in writing,

that requirement is met by an electronic record if the information contained therein is accessible so as to be usable for subsequent reference, and where a law requires a seal to be affixed to a document, that requirement is met if the document bears the electronic signature of the competent person.

The ICT Law defines electronic signature as an electronic sound, symbol or process attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the electronic record.

Another provision which is relevant to the issue we are addressing here is Article 149 of the ICT Law which provides that where a law requires an electronic message or signature to be verified, acknowledged, notarized or made under oath, that requirement is met if accompanied by the electronic signature of the notary or of any other authorized person.

This means, if the current legal framework in relation to the notary profession allowed notaries to serve their clients by electronic means, the  ICT Law would be of good use for notary services.

One may then wonder whether the Notary Law requiring that a notary should certify or authenticate, and keep only physical documents is really in line with the development speed of Rwanda.

In some countries, notaries can serve their clients electronically by connecting with them virtually and letting them sign via electronically enabled systems.

They for instance use electronic signing technologies that do not require any additional hardware on the client’s end other than the client keyboard.

Jean Nepomuscene Mugengangabo is a corporate commercial lawyer, and a partner at Landmark Advocates, in Kigali

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