AI: A Legal Perspective for Kenya

Artificial Intelligence (AI) is revolutionizing industries globally, including in Kenya. AI is already driving inventions in agriculture, healthcare, education, and finance. However, alongside its transformative potential, AI also introduces significant legal challenges. Businesses, policymakers, and individuals must navigate complex issues related to intellectual property, data protection, liability, and regulation. 

In this blog post, we explore how existing and emerging legal frameworks in Kenya and similar jurisdictions impact AI technologies. 

1. Intellectual Property and AI

AI systems are generating creative works, inventions, and innovations. However, Kenya’s Industrial Property Act (2001) and the Copyright Act (2019) primarily assume human authorship or inventorship. These laws do not currently address AI as a creator, leaving critical questions unresolved: 

Can AI-generated works qualify for copyright protection under Kenyan law? 

Should the developer, deployer, or user of the AI own the intellectual property rights? 

Kenya’s intellectual property framework may benefit from looking at other jurisdictions. For example: 

  1. Australia: In a landmark 2021 decision (Thaler v Commissioner of Patents), an Australian court ruled that AI could be recognized as an inventor in patent applications.
  2. European Union: The European Patent Office has maintained that only human inventors can be named, sparking discussions on the need for reform to accommodate AI.

Kenya’s future IP policy may need to adapt to global trends while addressing local realities. 

2. Data Protection and Privacy

AI relies heavily on data, raising critical privacy concerns. Kenya’s Data Protection Act, 2019 (DPA) provides a comprehensive legal framework for handling personal data. It introduces principles such as informed consent, data minimization, and accountability. 

However, the application of the DPA to AI technologies presents unique challenges: 

  • Transparency: Many AI systems operate as “black boxes,” making it difficult to explain how decisions are made. This can conflict with the DPA’s requirement for transparency and accountability.
  • Bias and Discrimination: If AI models are trained on biased data, they may produce discriminatory outcomes, violating provisions of the DPA and constitutional protections against discrimination.

In similar jurisdictions, additional guidance on AI and data protection is emerging: 

  1. European Union: The General Data Protection Regulation (GDPR) includes provisions specifically addressing automated decision-making and profiling. These rules ensure individuals have the right to contest AI-driven decisions.
  2. South Africa: The Protection of Personal Information Act (POPIA) also includes provisions on automated decision-making, offering lessons for Kenya in ensuring AI compliance with privacy laws.

To remain compliant, Kenyan organizations must ensure AI systems align with the DPA’s principles while addressing the nuances of AI-driven data use. 

3. Liability and Accountability

AI systems can cause harm, whether through malfunction, bias, or misuse. For example, a self-driving car accident or an erroneous AI-driven medical diagnosis could lead to significant disputes over liability. In Kenya, determining liability in such cases may involve existing laws like: 

  • The Law of Torts, where negligence or strict liability might apply.
  • The Consumer Protection Act, of 2012, ensures consumers have legal recourse against defective products—including software-powered devices.

Globally, other jurisdictions are taking steps to clarify AI liability: 

  1. European Union: The proposed AI Liability Directive aims to simplify the process of proving fault in AI-related harm by shifting some of the burden of proof to developers and deployers.
  2. United States: Courts have started applying product liability doctrines to AI systems, debating whether AI developers should bear full responsibility for their systems’ outcomes.

Kenya may need to adopt similar frameworks to balance innovation with accountability in AI deployment. 

4. AI Regulation: A Global Perspective

Kenya does not yet have specific laws regulating AI, but the government is taking steps to create an enabling environment. For example, the National AI Strategy seeks to guide the development and responsible use of AI technologies. 

Learning from global efforts could help Kenya refine its approach: 

  1. European Union: The proposed AI Act categorizes AI systems by risk levels (e.g., high-risk systems such as biometric identification) and imposes strict requirements for transparency, accountability, and fairness.
  2. Canada: The Artificial Intelligence and Data Act (AIDA) emphasizes the ethical use of AI, particularly in sectors that significantly impact public welfare.

Kenyan policymakers could draw on these models while ensuring regulations reflect local socio-economic and technological realities. 

How We at D. Otunga & Associates Can Help

AI’s legal landscape is evolving rapidly, and businesses need tailored legal advice to navigate this complexity. As a forward-thinking law firm, we provide: 

  • Data Protection Compliance: Ensuring your AI systems adhere to the DPA and other privacy laws.
  • AI Contracts and Agreements: Drafting contracts that address ownership, liability, and compliance in AI collaborations.
  • Dispute Resolution: Representing clients in disputes arising from AI use, including issues of discrimination, intellectual property, and liability.

Regulatory Advocacy: Advising on policy developments and engaging with regulators to shape fair AI laws. 

The Future of AI and Law in Kenya

AI has immense potential to drive Kenya’s digital transformation, but legal frameworks must evolve to address its unique challenges. By adopting a proactive approach and engaging with experts, businesses can innovate responsibly while mitigating risks. 

At D Otunga & Associates, we are committed to helping our clients harness AI’s potential while remaining compliant with the law. Contact us today to learn how we can support your AI-related legal needs. 

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