Kenya and South Africa are currently embroiled in a decade-long dispute over the control of a new Internet resource expected to significantly alter how consumers and businesses on the continent interact online.

The legal dispute currently playing out in American courtrooms once again pits Kenya and South Africa against each other with the African Union playing a deciding role.

The unfolding drama plays out after a Kenyan firm lost the latest round of a long battle with South Africa for the rights to host a strategic Internet resource in the wake of heightened competition in sub-Saharan Africa’s increasingly digital economy.

Over the last six years, two non-profit firms, one from Kenya and the other South African, have been embroiled in a legal dispute in the United States over the rights to operate the domain name “.Africa”.

On one side is Kenya’s Dot Connect Africa (DCA) that setup a registry operation in the country ten years ago and on the other side is South Africa’s ZA Central Registry (ZACR), which manages the co.za, org.za and net.za domains.

The dispute between the two dates back to 2011 when the Internet Corporation for Assigned Names and Numbers, ICANN, invited bids for new generic top-level domain names, (gTLDs) as part of an international expansion programme.

Generic top-level domain names are the highest level in the internet addressing system and include domains such as .com, .net, .info and .org.

Because of their prominence, gTLDs are delegated by ICANN through a detailed application process with thorough vetting of applicants on their ability to manage such resources.

According to Mr Ben Roberts, CEO of internet service provider Liquid Telcom Kenya, the .Africa domain name is an important resource for both businesses and consumers on the continent.

“The .Africa domain can be a boost in terms of marketing the African identity,’ he explained. “A lot of African businesses these days are going into the pan African market including firms like Kenya Commercial Bank and Equity Bank and having a .Africa address makes it easy for these companies to project their brand in all the countries they operate.”

Since 2000, Africa has sought to establish .Africa as a unique gTLD that is appropriate to better index and organise the growing Internet ecosystem. However, the ongoing legal dispute over who is supposed to operate the domain name has scuttled its rollout for more than three years now.

Court filings seen by the Business Beat indicate that DCA applied for the delegation of the .africa gTLD in March 2012 and paid the requisite application fee of $185,000 (Sh18.5million). On February 2014, South Africa’s ZACR also submitted an application to run .africa gTLD.

Part of the initial process of evaluating the bids for .africa included the geographic name evaluation where ICANN determines whether an application has achieved 60 per cent of endorsement from national governments in the region.

DCA obtained an endorsement from the United Nations Economic Commission for Africa (UNECA) back in 2008 and a further endorsement from the African Union Commission (AUC) the following year.

In 2010 however, the AUC rescinded its endorsement through a letter to DCA informing the firm that it has reconsidered its approach and no longer endorses individual initiatives in the matter related to a continental resource.

The AU itself later attempted to obtain the rights to manage .africa writing to ICANN asking the internet governing body to put the domain on the list of reserved top level domains, which would have made it unavailable for delegation to individual firms.

ICANN declined with board chair Stephen Crocker advising the AU that .africa cannot be reserved. Since it was a public authority associated with the continent, the AU was advised it could “play a prominent role in determining the outcome of any application for .africa”.

The AU heeded this advice and approached ICANN’s Governmental Advisory Committee, GAC, an internal committee that reviews applications and governmental concerns and issues advice.

The GAC has the authority to recommend ICANN cease the review of an application if the applicant is deemed “sensitive or problematic.”

“Because AUC could not obtain .africa directly through ICANN, AUC contracted with ZACR in March 2014,” reads the minutes from the civil case later filed by Kenya’s DCA. “In exchange for AUC’s endorsement, ZACR would assign to AUC all rights relating to .africa upon its delegation to ZACR.” The AUC is reported to have lobbied other GAC members to campaign against DCA’s application successfully advising ICANN against accepting DCA’s application because it lacked enough endorsements. “The application...is a geographic string application that does not have the requisite minimum support from African governments,” reads the objection filed by the African Union Commission in 2012.

“DCA’s application constitutes an unwarranted intrusion and interference on the African Union Commission’s mandate from African governments to establish the structures and modalities for the Implementation of the
dotAfrica (.Africa) project,” the objection further reads.

DCA fought back and through an internal arbitration panel and successfully argued that ICAAN had acted outside its bylaws and that the firm should desist from delegating .Africa to ZACR and instead allow DCA’s application to proceed.

“Instead of allowing DCA’s application to proceed through the remainder of the application process, ICANN restarted DCA’s application from the beginning and re-reviewed its endorsements,” court filings on the case explained in part. ICANN then sent DCA’s a new set of clarifying questions regarding the latter’s endorsement.

“The DCA requested an extended evaluation, hoping to gain insight on what was wrong with its application but rather than providing clarification, ICANN merely restated the same questions – allegedly as a pretext to deny DCA’s application – then denied DCA’s application in February 2016.”

ICANN then began the process of delegating .Africa to ZACR prompting DCA to file a lawsuit against ICANN and ZACR in a bid to stop the process.

In its filing, DCA, which is incorporated in Mauritius, argues that several members of the GAC had conflicts of interest and that Kenya was unrepresented at the GAC meeting. Curiously however, Kenya is one of the 16 countries including Uganda, Cameroon, Egypt, Burkina Faso, Nigeria and Tanzania that filed formal objections back in 2012 to block DCA’s application together with the African Union.

In April last year, US District Judge Gary Klausner granted DCA a preliminary injunction barring ICANN from delegating .Africa to its South African rival pending the final determination of the law suit. Six months later, the case was moved to the Superior Court of California owing to lack of jurisdiction. Last month, Superior Court Judge Howard Halm denied the motion by Dot Connect Africa to obtain an injunction that saw the launch of the top level domain at the African Union Commission, in Addis Ababa.

“Africa, today you have reclaimed your digital identity,” explained AU Chairperson Dlamini Zuma at the launch. “.Africa will allow us tell our own story.” The issue is however far from over with DCA reportedly set to appeal against the ruling by California court. — fsunday@standardmedia.co.ke