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Authors:Dorcas Tsebee and Victoria Adaramola
Introduction
The digital landscape is constantlyevolving as emerging technologies advance, creating an increasing need for regulatoryresponses. The ongoing debate in Africa centres on whether to regulate thesetechnologies through new laws or adapt existing ones, such as competition,cybersecurity, and data protection laws. While regulation is essential fordictating how technologies are deployed and protecting end users, fostering anenvironment that encourages innovation is equally critical. This articlediscusses insights shared by stakeholders from policy, regulatory, business,and academia during the Cafe Juridique, hosted by the Center for Law andInnovation (CLI) in collaboration with other partners. These insights addressthe pressing questions surrounding the risks of emerging technologies and therole of regulations and regulators in managing them. The article also exploreshow regulators can create a conducive environment for innovation and examinesthe regulatory models available to achieve this balance.
The role of regulators in building an enabling environment for innovation
Regulators play a crucial role in creatingan enabling environment for innovation and maintaining public safety. Toachieve this balance, a multifaceted approach is crucial. Regulators must bemindful of the risks associated with emerging technologies and developstrategies to address these risks. One of the effective strategies adopted bysome African countries is the implementation of regulatory sandboxes that allowinnovators to test new technologies in a safe and controlled environment underthe supervision of regulatory authorities. Regulatory sandboxes are designed tobalance innovation with consumer protection, allowing regulators to stay aheadof technological developments while helping businesses navigate the regulatorylandscape more effectively. Additionally, there is a need for collaborationamong various stakeholders, including innovators, academia, and internationalorganisations, to exchange expertise and deepen research in this field. Thisallows regulators to understand emerging technologies, develop betterstrategies to minimise the risk associated with deploying these technologies,and ensure that they are used responsibly. Capacity building is also a keystrategy in managing and responding to emerging technologies effectively andensuring public safety. Capacity building and upskilling of regulators willenhance the development of relevant regulatory interventions that benefitinnovators and users.
Another crucial factor for regulators inpromoting responsible regulation and mitigating risks is ensuring thattechnology serves the greater good of society. This is also achieved throughcollaboration among different sectors in a country and at the regional level.Such collaboration fosters the development of technologies that are sensitiveto individual backgrounds, cultural nuances, and local needs. Collaboratingwith other regulators at the national and regional level gives an avenue togain valuable insights into the values of each country and how technologies canbenefit them. This sense of understanding offers an opportunity to regulateconflicting interests to ensure the responsible use of technology without increasing risks to individuals.
Additionally, from a competitionperspective, while safeguarding innovation, it is important to prevent it fromcreating new barriers for small businesses. By its nature, technology canhinder new market entrants, as there is often a tendency to favour the latestproducts. Therefore, regulatory responses must prioritise protecting innovationitself, not just small businesses. This involves maintaining a competitivemarket by preventing the abuse of dominant positions by established tech giantsand ensuring that these larger companies do not stifle emerging technologiesthrough mergers and acquisitions. Certain mergers and acquisitions have thepotential to further assert the market dominance of larger companies, leavingnew innovators to struggle to survive in the ecosystem. Ultimately, the focusshould be on protecting innovation rather than solely shielding smallercompanies. This creates an open andcompetitive market for innovation to thrive. Moreover, there is a need for aconsolidated effort across Africa to protect local innovation from the abuse ofmarket dominance by global companies. Making a fragmented effort in eachAfrican country will create a weak market that may not withstand the strengthof global companies. Implementing the African Continental Free Trade Area(AfCFTA) Protocol can significantly aid this endeavour and provide a unifiedfront to address these challenges. Thisapproach benefits local economies and contributes to the global technologicalecosystem, ensuring that Africa can compete on an equal footing with otherregions.
Many stakeholders advocate for adaptingexisting laws to regulate emerging technologies. Data protection authoritiesare mandated to enforce laws governing the processing of personal data,including when automated means are involved. As a result, the processing ofpersonal data by emerging technologies falls under the scope of these dataprotection laws. Recently, data protection authorities have emphasised the importance ofadhering to data protection principles when using AI systems and other emergingtechnologies. In Africa, particularly in Uganda, data protection laws take abroad approach, generally applying rather than targeting specific technologies.This approach ensures that data protection principles remain relevant andenforceable, regardless of the technology in use. This approach focuses onprinciples and desired outcomes rather than rigid directives. Data protectionlaws provide broad obligations without being overly prescriptive. For example,data protection laws typically emphasise principles like transparency andfairness but do not always detail the exact steps to achieve these goals.Innovators are thus required to interpret and comply with these principles,leading to more adaptable and effective solutions. This approach allowsinnovators to develop compliance strategies that align with their specifictechnologies, and regulators can offer guidance without stifling innovation.
Futureof regulation in Africa: Should technology be a target of regulation?
Being in its nascent stages, thepanellists suggested that the focus of African countries should not be toregulate emerging technologies through a new lens but to understand and adaptexisting frameworks to guide their responsible use. The fast-paced nature oftechnological advancement necessitates a nuanced approach to regulation. Whiletechnology undoubtedly requires oversight to ensure safety, privacy, andethical standards, the challenge lies in the dynamic and often unpredictable trajectoryof innovation. Thus, rather than creating new regulations for each innovation,efforts should be directed towards enhancing and adapting existing laws toaddress issues posed by emerging technologies. Regulators can prioritiseissuing secondary regulations, guidance notes, and codes of conduct tocomplement existing laws and promote the responsible development and use oftechnology. This approach creates a framework that emphasises the impact oftechnology rather than the technology itself. Additionally, these guidelinesshould focus on regulating the actions of innovators rather than technology, asthe development and ultimate impact of technology are largely influenced by itsdevelopers.
Leveraging existing frameworks toregulate emerging technologies also requires proactive measures from countriesthat lack these frameworks. This involves acknowledging the necessity ofadopting laws that provide adequate protection for the public, even if they arenot specifically tailored to emerging technologies. This need has beenacknowledged in the data protection landscape as more countries have adopteddata protection laws. While these laws do not target specific technologies,they establish principles and obligations designed to ensure data protection. Currently,39 African countries have enacted data protection laws, and 31 have establisheddata protection authorities to enforce them. At the regional level, the MalaboConvention has become a significant force, encouraging countries to adopt lawsthat safeguard data in the digital era.
Challenges with regulation of emerging technologies: Making agile and adaptable policies
The challenges in regulating emerging technologies are multifaceted, necessitating agile and adaptable policy responses. Firstly, technology evolves rapidly, often outpacing regulatory efforts to keep up. The complexity of new technologies, combined with the limited knowledge and capacity of regulators, creates a significant gap ineffective regulation. Adaptability will involve establishing clear rules and standards to guide innovators and continuous learning and capacity building for regulators. Establishing feedback loops is also essential to adaptability, asit creates opportunities for reviewing and refining previous attempts at problem solving. Addressing the knowledge gap is also crucial in creating agile andadaptable policies. Regulators must have the right knowledge, skills, and toolsto understand and manage new technologies effectively. This requires continuous education and collaboration with industry experts to stay abreast ofdevelopments.
Additionally, collaboration betweeninnovators and regulators is essential in developing effective regulatoryframeworks. This partnership relies heavily on knowledge sharing, enabling bothparties to understand the scope of technology and craft practical andenforceable regulations. The low capacity and lack of expertise amongregulators contribute to gaps in effective regulation, which can be mitigatedthrough collaborative knowledge-sharing efforts. Also, a unified regulatoryframework offers consistency and predictability, which are vital for fosteringinnovation and attracting investment. The African Continental Free Trade Area(AfCFTA) Protocol is a significant step in this direction, offering a platformfor collaborative regulation to address the unique challenges and opportunitiesemerging technologies present.
Furthermore, balancing public trust andpolicy intervention is crucial in developing agile frameworks. Building trustin emerging technologies depends on understanding their role and relevance.Achieving this requires that technological solutions resonate with theindividual communities they are meant to serve rather than being importedwithout consideration for local contexts. This requires a nuanced approachwhere regulators and innovators work together to tailor technology to meetspecific community needs. This approach creates a sense of ownership of theprocess, thereby establishing an incentive to comply with co-created regulations.This approach was adopted in the creation of the recently published draftNigeria National AI Strategy, which was created by Nigerian experts andstakeholders across the globe.
Finally, a rigid regulatory approach hasthe potential to stifle innovation, whereas a more adaptable framework canprovide the necessary oversight while allowing technology to evolve. Thisflexibility ensures that regulations evolve alongside technology, maintainingrelevance and efficacy.
Thefuture of emerging tech regulation in Africa: Alternative regulatory models
Across Africa, various regulatory modelsare employed to govern technology. One common approach is the implementation ofexisting laws by regulators. Regulators guide the implementation andapplication of laws through subsidiary regulations, decisions, guidance notes,regulatory toolkits, and other tools designed to facilitate compliance. Thisapproach is notably adopted in Kenya, Senegal, Rwanda, and Uganda.
Another model involves gaining a deeperunderstanding of technology through expert discussions and research. Thisapproach is particularly prominent in Côte d'Ivoire, where the regulator hasheld two expert discussions on emerging technologies.
A popular model in the UK is regulatorydialogue, which has proven effective in the region and could be adapted to theNigerian context. This model involves co-creating solutions with bothregulators and innovators. By incorporating industry-based insights, thisapproach ensures that regulatory solutions are practical, implementable, andtailored to both the technological and economic contexts in which they will beapplied.
Conclusion
Regulating emerging technologies inAfrica requires a collaborative and flexible approach. By enhancing existingregulations, investing in capacity building, and harmonising efforts across thecontinent, Africa can create a regulatory environment that supports innovationwhile protecting public interests.
