We must regulate AI to secure digital rights

The law ushered in by promulgation of the Constitution of Kenya 2010, was characterised by robust mechanisms, systems and procedures designed to deter people and institutions from violating human rights as had previously been the norm.

Dating back to ancient civilisations, human beings have always been adapting to changes to avoid threats posed by their own advancements.

With onset of ultra–modern technology, framers of the Constitution were many steps ahead having embodied digital rights within the Bill of Rights.

In this technologically savvy era, securing digital rights is essential for promoting free speech, preventing misuse of personal data, furthering transparency in public governance, eliminating barriers to access to information and forestalling discrimination.

Artificial Intelligence is the present–day emerging trend in the digital world and refers to the ability of machines to perform tasks that were formerly reserved for humans.

Alan Turing, a British Scientist devised the acclaimed Turing Test to determine whether a machine has reached the threshold required to qualify as an AI.

Almost everyone has interacted with AI in their daily routines, whether through creditworthiness evaluation in fintech, algorithms that identify areas of interest in social media and entertainment applications such as TikTok or Netflix, facial recognition systems, virtual assistants like Apple’s Siri or Large Language Models such as Grok, ChatGPT, Qwen, Perplexity, Claude, Gemini and DeepSeek, among many others.

With widespread uptake of AI in Kenya, users are likely to be susceptible to risks and dangers of unchecked technology, which include infringement of data privacy, misuse of personal and sensitive information such as digital health records or biometric data, misinformation, biased and discriminative algorithms, cyberwarfare, malicious hacking, social manipulation, violation of intellectual property rights and other maleficent activities.

In the formal sector, unsanctioned use of AI tools by employees commonly referred to as shadow AI, poses a major risk as confidential data is shared with third parties without a substantive legal framework to govern such undertakings.

Further, developers of AI systems should be forced to ensure that their products do not in any way violate the Bill of Rights or any other applicable provisions of the law. They should also uphold high ethical standards and guarantee user safety, security and adherence to human dignity.

Additionally, stringent punitive measures should be put in place to deter nefarious characters from using Artificial Intelligence to commit immoral and unethical activities.

Recently, we have noticed a surge in cases of inappropriate application of technology and cybercrimes, such as use of deepfakes and hacking owing to the prevalent use of AI. Unfortunately, due to lack of a proper legal regime, most culprits end up being acquitted or given a slap on the wrist.

Moreover, intellectual property rights of content creators who use Artificial Intelligence tools and systems need to be protected and upheld. This will play a fundamental role in promoting innovation and harnessing untapped talents and capabilities by providing a safe space.

In light of the above, it is now more than ever apparent that formulating a regulatory framework on Artificial Intelligence is long overdue. Even though we are among the very few countries who have established AI National Strategy to become the Silicon Valley and AI hub of Africa, we need to put in place a well-grounded legislative framework.

A holistic multi-stakeholder approach involving the government, private sector, church, academia, civil societies, media, researchers and professional bodies should be used to ensure that all views, and recommendations are taken into account.

Also, adequate public participation should be conducted both at the ward level and online to ensure that everyone has been given a fair opportunity to make their contribution.

In his historic inaugural address in 1961, the 35th US President, John F. Kennedy urged Americans to ask what they can do for their country and not what the country can do for them. Similarly, we should all strive to contribute to nation-building in our own little ways.

We need joint concerted efforts to advocate for the use of responsible and ethical AI, respect for personal and sensitive data and protection of digital rights.

John Wangai is public interest litigation lawyer