Legality of eSignatures in Cape Verde

Background

Electronic signatures are rapidly transforming the document authentication landscape within Cape Verde and globally by introducing efficient and environmentally conscious methods that are building momentum. The shift from paper to digital signatures accelerates the completion of various dealings.

It is crucial to select an electronic signature tool that aligns with the nation's legal stipulations, specifically Decree-Law No. 27/2023 of October 20, 2023, for successful adoption in Cape Verde.¹ This is to ascertain electronic signatures' legal validity compared to their handwritten counterparts² in Cape Verde. Despite the progressive acceptance, it's essential to recognize that some documents may still need a physical signature, and seeking legal consultation is advisable to navigate variable regional laws.³

The importance of security surrounding electronic signature platforms cannot be understated. Services must integrate robust protection features such as data encryption, verifying signer identities, and providing audit trails to deter wrongful access and guarantee document authenticity. For instance, BoldSign offers these imperative security features and complies with legal and security protocols.

Cape Verde enterprises must emphasize legal conformity, elevate security measures, and choose user-friendly platforms for integrating electronic signatures into their business frameworks. This approach boosts productivity and ensures the protection of their business exchanges.

Overview of the eSignature regulations

The use of electronic signatures in Cape Verde is regulated by Decree-Law No. 27/2023 of October 2023. The regulation sets out the rules applicable to trust services, determines the validity, effectiveness, and evidentiary value of electronic signatures and documents, provides for the recognition and acceptance of electronic means of identification of natural and legal persons within the Cape Verdean legal system, and establishes the rules governing the electronic certification system.

Decree-Law No. 27/2023 grants electronic signatures the same legal validity as wet ink signatures. The regulation further allows all individuals the freedom to execute their contracts upon agreement by the contracting parties electronically. Such contracts shall, however, not be denied legal validity merely because they were completed electronically⁴.

The regulation divides electronic signatures into:

1. Simple electronic signatures
2. Advanced electronic signatures
3. Digital signatures
4. Qualified electronic signatures

A simple electronic signature is any data, including a sound, symbol, or process, executed or adopted to identify a person and indicate that person's approval or intention regarding the information contained in a data message and which is attached to or logically associated with that data message.

An advanced electronic signature is designed so that, together with a security procedure, it can be verified that the signature is.⁵

• Uniquely linked to the signer
• Capable of identifying the signatories
• Its affixing to the document depends only on the will of the holder
• Linked to the data it relates to so that any subsequent change to the data is detectable.

Being uniquely linked to the signer

An advanced electronic signature must be uniquely connected to the person using it. The signature must be uniquely made with methods only the signer can access, like a private key and confidential info, to verify their identity.

The use and incorporation remain in their sole control

The person using the advanced electronic signature must have sole control over the means of creating the signature. Typically, this requires managing a key pair or two-factor authentication, with the signer exclusively holding the private key to prevent signature forgery.

Ability to identify the signatories

The process used to create the signature must be capable of identifying the person signing. This may include using a biometric signature, a Personal Identification Number (PIN), an email address, or a company registration number.

Ease in tracking down any alterations made after signing

Preserving the authenticity of the signed document is essential. Modifications made to the document post-signature should be identifiable. This is commonly accomplished through an audit trail. Audit trails record the signer's I.P. address, timestamps of key signing events, and location, providing proof of identity, timing, and signature place.

A digital signature is an advanced electronic signature created using a unique pair of cryptographic keys: a private key and a public key. The private key is used to sign an electronic document and confirm its authorship and contents, while the public key is used to verify the signature and confirm that the document has not been altered since it was signed.⁶

A qualified electronic signature is a digital signature or other advanced electronic signature that meets the exact security requirements as a digital signature based on a qualified certificate and created by means of a secure signature creation device.

Use of a qualified electronic signature is legally equivalent to a wet-ink signature. It creates a presumption that:⁷

• The individual affixing the signature is either the holder or an authorized representative of the holder of the qualified electronic signature.
• The signature was applied with the intent to sign the document.
• The document remains unaltered since the signature was affixed.
• Must be based on a qualified electronic signature certificate issued by a valid certifying body.
• Must meet all the requirements of advanced electronic signature.

Summary analysis

Decree-Law No. 27/2023 of October20, 2023; The Republic of Cape Verde

Signature requirements by law

Under the Act, where the law requires a person's signature for the validity, effectiveness, or proof of a legal act, and the absence of a signature is penalized, that requirement may be satisfied by an electronic message containing a sufficiently reliable electronic signature. The reliability of the electronic signature must be assessed in light of all the circumstances of the case. This includes any agreement between the parties and the purpose for which the message was generated or communicated.⁸

A signature is considered reliable where it is:⁹

• If the signing device, in the context in which it is used, corresponds exclusively to the signatory and is, at the time of signature, under his exclusive control.
• If the signature allows the identification of the signatory
• If any change to the electronic signature made after the moment of signature can be detected.
• If it is possible to detect any change in the information that occurred after the moment of signature in cases where the legal requirement for the signature is to ensure the integrity of the information to which the signature corresponds.

Recognition of foreign electronic certificates

Certificates issued by certifying bodies based abroad are equivalent to qualified certificates issued by a certifying body established in Cape Verde, provided that any of the following circumstances occur:¹⁰

1. The certificate meets the requirements for qualified certificates and is guaranteed by a certifying body accredited in Cape Verde;
2. The certificate or certifying body is recognized in Cape Verde by virtue of an instrument of international law or regional agreement.

The scope and limitations of eSignature transactions

Electronic signature use is not legally recognized for all document types. Some transactions are appropriate for eSignatures, while others are not. Below is a brief analysis and a summary table of these transactions.

Documents that can be signed

Electronic signatures can be employed to affix signatures and provide countersignatures on a diverse array of documents, such as:

• Legal opinions
• Offer letters
• Memoranda & internal correspondences
• Non-disclosure agreements
• Purchase orders
• H.R
• Procurement
• Employee onboarding, etc.

Unique consideration

An advanced electronic signature can be used in place of a handwritten signature in¹¹:

• Certification of documents
• Oaths
• Notarizations
• Acknowledgments

Exemptions

In limiting the scope of use of electronic signatures, the Act exempts transactions from the following regulations.¹²:

• Notarial and registration acts
• Procedural acts
• Acts that title personal legal relationships
• Acts related to tender procedures
• Situations in which the physical presence of the signatory or the face-to-face recognition of the signature is required.

Summary of exemptions

How does BoldSign help?

The following elements of compliance available within BoldSign can be used to comply with Cape Verde’s eSignature laws:

• Secure and unique signing link: A secure and unique link to sign a document is sent directly to the signer's email address. This ensures that the document is only accessed by the intended signer and cannot be tampered with.
• Password protection: Senders can specify a password that needs to be entered before viewing and signing a document. This adds another layer of security to the signing process.
• Audit trail: The IP address of the signer and timestamps for all significant events in the signing process are recorded in an audit trail. This provides a record of who signed the document, when, and where.
• Digital signature: The final document is digitally signed with an AATL-compliant certificate. This ensures that the document cannot be tampered with without invalidating the signature.
• Consent: Signers are asked to confirm their intent to sign electronically and informed that they could opt out. This ensures that the signer is aware of the implications of signing electronically and has given their consent.
• Custom terms: Get your signers to agree to a custom set of terms. This can be useful to ensure additional security or that the signer understands the terms of the document.
• QES compliance: BoldSign offers fully compliant qualified electronic signatures (QES) that are simple, secure, and legally binding across Cape Verde. QES guarantees that your essential documents are protected with the highest level of e-signature security, giving you peace of mind in your digital transactions. Using BoldSign, you can confidently manage your important documents while ensuring compliance with Cape Verde’s regulations. 

Disclaimer: The information on this page is intended to help businesses understand the legal framework of electronic signatures for this particular country.

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