Recently the world has seen a boom in the development of technologies that aid and abet as co-conspirators or enablers, how humans carry out day-to-day work. From how we do our laundry, to banking, policing traffic flow to making research which in the end informs policy, emerging tech has been at the forefront of it all. And with investment projected to reach some hundreds of billions of dollars by 2027, I believe it is high time we had this reflection. What do these technologies mean for the legal landscape here at home in Uganda and the world over?
Disruptive, Disruptive, Disruptive!
By their nature, emerging technologies are disruptive, and we see through how their processing power and speeds have revolutionized the way of living for society. Some of these emerging technologies include such as quantum computing, artificial intelligence etcetera. A clear example is the impact they have had on our enjoyment of fundamental freedoms. A comparison to how the normative content of these freedoms as enshrined under the Constitution of the Republic of Uganda 1995 as amended as well as other Constitutions around Africa and the chasm created by the nature of these technologies as regards enjoyment of the same shows the trajectory but also the modus said freedoms are taking under the new technological regime. Today we have debates around free speech as we used to know it under these laws and then the creation of deep fake content, increased misinformation, and disinformation. This is one of the ways of envisioning the disruptive nature of these technologies.
See also: Understanding deep fake technology: how it works and concerns arising from its implementation
The other issue is around liability with the recent developments in technology. Does liability fall with manufacturers, suppliers, or users of these emerging technologies in cases of apportioning fault? There has, of course, been increased uncertainty when it comes to who should bear the burden of recompense or remedy in cases where these emerging technologies are used. The reason is simple, we are trying to apply traditional rules on negligence to a “new kid on the block” from a whole other continuum dimension.
These emerging technologies have several certain and uncertain ramifications for human rights and society in several sectors, be it transportation, manufacturing, security, education, medicine, law, agriculture etcetera.
The problem with the existing laws
As African democracies, we have tried to do our best when it comes to having some of these laws in place albeit most are steeped in reactionary conservative tendencies and lack that proactive aspect. The majority of our laws are archaic and suffer lag when it comes to policing affairs under emerging technologies. You have technology that morphs and evolves by the minute whereas the laws seeking to regulate some of these technologies such as the Ugandan and Kenyan Computer Misuse Acts date back a decade, albeit with a few periodical amendments. This means that these laws do not account for the recent breakneck changes in technology and as such leave a legal vacuum.
The other issue happens to arise out of implementation. The bodies in charge of enforcement and implementation of some of these laws are not well grounded in principle, their personnel is not primed to effectively enforce and then the bodies lack adequate resource envelopes for actualization of some of the projects that are crafted around thorough enforcement such as educational, awareness and advocacy campaigns as well as refresher courses for enforcement personnel given that these technologies morph in a blink of an eye. This exacerbates the issue of some of these outdated laws. There is a whole myriad of issues with the existing legislation as far as they attempt to maintain equilibrium in a space that evolves now and then.
There really is a whole myriad of issues with the existing legislation in as far as they attempt to maintain equilibrium in a space that evolves every now and then.
What can we do?
Research is very important since it informs the ideological trajectory. However, by its nature and backing of some empirical findings, research is also at the heart of and influences policy formulation. Given that we are dealing with ever-evolving technologies, it would be a great foundation for the development of regulation and legislation that continuously develops and evolves at the same speed as some of these technologies. Research plays a key role in supplanting policy. Only with thorough research can we make meaningful legislation but even then, it should be in harmony with the existing international mechanisms and networks on the same technologies.
The recently agreed UN Cybercrime Convention is the most recent example of efforts to make sure laws are meeting the test of time and regulating conduct as it happens for both cyber-enabled and cyber-dependent crime globally. There have been efforts in the region to align our local legal regime to the disruptive nature of these technologies and I am a proud part of the same. An example is efforts being undertaken by KICTANet which is reappraising the effectiveness of the Kenyan Computer Misuse and Cybercrimes Act. Other African nations can benchmark on the recent UN Cybercrime Convention trilogue and the efforts in Kenya so that we start having these necessary discussions.
For enforcement, we can look to training the law enforcement bodies on implementation and accountability as well as their related residual obligations under these laws. As a result, we can safeguard human rights, society, and the spirit, and the intended purpose of some of these laws. Capacity budling centered around refresher courses, continued engagements, and assessments on enforcement as well as cooperation should inform training endeavors. That way the laws serve that which they are enacted for.
As the public, we have a pivotal role of accountability akin to watchdogs to carry out oversight on some of these well-intended regulatory endeavors. This entails demanding strict adherence to the rule of law even in the light of emerging technologies to deter abuse of due process by authoritarian regimes. These regimes are well known for exploiting legal loopholes for example when it comes to emerging technologies that were initially not covered by the outdated legislation to abuse civil liberties. The vacuum in laws creates an opportunity for these repressive regimes to prey on civil liberties when it comes to emerging technology-related or enabled conduct.
I also believe that through legal advocacy for example by amplifying these discussions in public spaces or even issuing opinions on the existing state of regulation and how it can be improved etc., we can drive forth positive political will. It is this will that influences resource allocation which is a necessary ingredient for crafting and implementing policies. This also creates a suitable environment for the realization of all the above. But also, resources are vital for the eradication of the existing technological chasm or divide that exists amongst different social demographics. Remember empowered public spaces are crucial for driving and demanding meaningful change.
We shall continue to see increased disruption from the development and deployment as well as the use of these emerging technologies. Policy makers must keep abreast with developments and as recommended governments need to up the ante when it comes to resource allocation for some of these legislative initiatives. It is then that we maintain the relevance of some of these laws vis-a-vis emerging technologies and changing times. There remains a challenge for every — digital citizen; be it as regulators, developers, users, and subjects of the actions or results of these technologies to ensure we have meaningful, functional, and relevant policies.
