Future-Proofing Regulations for a Fast-Paced World: The Role of Regulators
Authors: Dorcas Tsebee and Victoria Adaramola ?
Introduction
The digital landscape is constantly evolving as emerging technologies advance, creating an increasing need for regulatory responses. The ongoing debate in Africa centres on whether to regulate these technologies through new laws or adapt existing ones, such as competition, cybersecurity, and data protection laws. While regulation is essential for dictating how technologies are deployed and protecting end users, fostering an environment that encourages innovation is equally critical. This article discusses insights shared by stakeholders from policy, regulatory, business, and academia during the Cafe Juridique, hosted by the Center for Law and Innovation (CLI) in collaboration with other partners. These insights address the pressing questions surrounding the risks of emerging technologies and the role of regulations and regulators in managing them. The article also explores how regulators can create a conducive environment for innovation and examines the regulatory models available to achieve this balance.
The role of regulators in building an enabling environment for innovation
Regulators play a crucial role in creating an enabling environment for innovation and maintaining public safety. To achieve this balance, a multifaceted approach is crucial. Regulators must be mindful of the risks associated with emerging technologies and develop strategies to address these risks. One of the effective strategies adopted by some African countries is the implementation of regulatory sandboxes that allow innovators to test new technologies in a safe and controlled environment under the supervision of regulatory authorities. Regulatory sandboxes are designed to balance innovation with consumer protection, allowing regulators to stay ahead of technological developments while helping businesses navigate the regulatory landscape more effectively. Additionally, there is a need for collaboration among various stakeholders, including innovators, academia, and international organisations, to exchange expertise and deepen research in this field. This allows regulators to understand emerging technologies, develop better strategies to minimise the risk associated with deploying these technologies, and ensure that they are used responsibly. Capacity building is also a key strategy in managing and responding to emerging technologies effectively and ensuring public safety. Capacity building and upskilling of regulators will enhance the development of relevant regulatory interventions that benefit innovators and users.
Another crucial factor for regulators in promoting responsible regulation and mitigating risks is ensuring that technology serves the greater good of society. This is also achieved through collaboration among different sectors in a country and at the regional level. Such collaboration fosters the development of technologies that are sensitive to individual backgrounds, cultural nuances, and local needs. Collaborating with other regulators at the national and regional level gives an avenue to gain valuable insights into the values of each country and how technologies can benefit them. This sense of understanding offers an opportunity to regulate conflicting interests to ensure the responsible use of technology without increasing risks to individuals.
Additionally, from a competition perspective, while safeguarding innovation, it is important to prevent it from creating new barriers for small businesses. By its nature, technology can hinder new market entrants, as there is often a tendency to favour the latest products. Therefore, regulatory responses must prioritise protecting innovation itself, not just small businesses. This involves maintaining a competitive market by preventing the abuse of dominant positions by established tech giants and ensuring that these larger companies do not stifle emerging technologies through mergers and acquisitions. Certain mergers and acquisitions have the potential to further assert the market dominance of larger companies, leaving new innovators to struggle to survive in the ecosystem. Ultimately, the focus should be on protecting innovation rather than solely shielding smaller companies.??This creates an open and competitive market for innovation to thrive. Moreover, there is a need for a consolidated effort across Africa to protect local innovation from the abuse of market dominance by global companies. Making a fragmented effort in each African country will create a weak market that may not withstand the strength of global companies. Implementing the African Continental Free Trade Area (AfCFTA) Protocol can significantly aid this endeavour and provide a unified front to address these challenges.??This approach benefits local economies and contributes to the global technological ecosystem, ensuring that Africa can compete on an equal footing with other regions.
Many stakeholders advocate for adapting existing laws to regulate emerging technologies. Data protection authorities are mandated to enforce laws governing the processing of personal data, including when automated means are involved. As a result, the processing of personal data by emerging technologies falls under the scope of these data protection laws. Recently, data protection authorities have emphasised the importance of adhering to data protection principles when using AI systems and other emerging technologies. In Africa, particularly in Uganda, data protection laws take a broad approach, generally applying rather than targeting specific technologies. This approach ensures that data protection principles remain relevant and enforceable, regardless of the technology in use. This approach focuses on principles and desired outcomes rather than rigid directives. Data protection laws provide broad obligations without being overly prescriptive. For example, data protection laws typically emphasise principles like transparency and fairness 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 allows innovators to develop compliance strategies that align with their specific technologies, and regulators can offer guidance without stifling innovation.
Future of regulation in Africa: Should technology be a target of regulation?
Being in its nascent stages, the panellists suggested that the focus of African countries should not be to regulate emerging technologies through a new lens but to understand and adapt existing frameworks to guide their responsible use. The fast-paced nature of technological advancement necessitates a nuanced approach to regulation. While technology undoubtedly requires oversight to ensure safety, privacy, and ethical standards, the challenge lies in the dynamic and often unpredictable trajectory of innovation. Thus, rather than creating new regulations for each innovation, efforts should be directed towards enhancing and adapting existing laws to address issues posed by emerging technologies. Regulators can prioritise issuing secondary regulations, guidance notes, and codes of conduct to complement existing laws and promote the responsible development and use of technology. This approach creates a framework that emphasises the impact of technology rather than the technology itself. Additionally, these guidelines should focus on regulating the actions of innovators rather than technology, as the development and ultimate impact of technology are largely influenced by its developers.
Leveraging existing frameworks to regulate emerging technologies also requires proactive measures from countries that lack these frameworks. This involves acknowledging the necessity of adopting laws that provide adequate protection for the public, even if they are not specifically tailored to emerging technologies. This need has been acknowledged in the data protection landscape as more countries have adopted data 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 established data protection authorities to enforce them. At the regional level, the Malabo Convention has become a significant force, encouraging countries to adopt laws that 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 in effective 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, as it creates opportunities for reviewing and refining previous attempts at problem solving. Addressing the knowledge gap is also crucial in creating agile and adaptable policies. Regulators must have the right knowledge, skills, and tools to understand and manage new technologies effectively. This requires continuous education and collaboration with industry experts to stay abreast of developments.
Additionally, collaboration between innovators and regulators is essential in developing effective regulatory frameworks. This partnership relies heavily on knowledge sharing, enabling both parties to understand the scope of technology and craft practical and enforceable regulations. The low capacity and lack of expertise among regulators contribute to gaps in effective regulation, which can be mitigated through collaborative knowledge-sharing efforts. Also, a unified regulatory framework offers consistency and predictability, which are vital for fostering innovation and attracting investment. The African Continental Free Trade Area (AfCFTA) Protocol is a significant step in this direction, offering a platform for collaborative regulation to address the unique challenges and opportunities emerging technologies present.
Furthermore, balancing public trust and policy intervention is crucial in developing agile frameworks. Building trust in emerging technologies depends on understanding their role and relevance. Achieving this requires that technological solutions resonate with the individual communities they are meant to serve rather than being imported without consideration for local contexts. This requires a nuanced approach where regulators and innovators work together to tailor technology to meet specific community needs. This approach creates a sense of ownership of the process, thereby establishing an incentive to comply with co-created regulations. This approach was adopted in the creation of the recently published draft Nigeria National AI Strategy, which was created by Nigerian experts and stakeholders across the globe.
Finally, a rigid regulatory approach has the potential to stifle innovation, whereas a more adaptable framework can provide the necessary oversight while allowing technology to evolve. This flexibility ensures that regulations evolve alongside technology, maintaining relevance and efficacy.
The future of emerging tech regulation in Africa: Alternative regulatory models
Across Africa, various regulatory models are employed to govern technology. One common approach is the implementation of existing laws by regulators. Regulators guide the implementation and application of laws through subsidiary regulations, decisions, guidance notes, regulatory toolkits, and other tools designed to facilitate compliance. This approach is notably adopted in Kenya, Senegal, Rwanda, and Uganda.
Another model involves gaining a deeper understanding of technology through expert discussions and research. This approach is particularly prominent in C?te d'Ivoire, where the regulator has held two expert discussions on emerging technologies.
A popular model in the UK is regulatory dialogue, which has proven effective in the region and could be adapted to the Nigerian context. This model involves co-creating solutions with both regulators and innovators. By incorporating industry-based insights, this approach ensures that regulatory solutions are practical, implementable, and tailored to both the technological and economic contexts in which they will be applied.
Conclusion
Regulating emerging technologies in Africa requires a collaborative and flexible approach. By enhancing existing regulations, investing in capacity building, and harmonising efforts across the continent, Africa can create a regulatory environment that supports innovation while protecting public interests.
?
This article is based on the Cafe Juridique hosted by the Center for Law and Innovation following the conclusion of its 5-week Technology Policy Hackathon. The event was moderated by Ridwan Oloyede, with Bashira Hassan, Dr. Patricia Boshe, Leonard Ugbaja and Baker Birikajja as panellists. We thank the panellists for their time and input.