Strengthening the National AI Strategy: Addressing the challenges and gaps AI poses

Legal Notes

Introduction

Artificial Intelligence (AI) has revolutionized the world and revealed the boundless possibilities of human innovation. A term that was introduced in 1956 now leads the global discourse on groundbreaking technological advancements that are driving the core of human existence. As of October 2021, 44 countries have been reported to have developed their own national AI strategic plans to propel their economies, foster innovation and advance quality of life. As a leading economic player in Africa and the hub of digital innovation and a thriving tech ecosystem, Nigeria released her AI Strategy in August 2024 with a vision to be “a global leader in harnessing the transformative power of AI through responsible, ethical, and inclusive innovation, fostering sustainable development through collaborative efforts.” This article will provide a concise overview of Nigeria’s AI Strategy, examine the legal and ethical challenges AI poses and offer recommendations to strengthen implementation of the national AI strategy.

National AI Strategy at a Glance

The National AI Strategy (NAIS) was developed at a 4-day workshop in April 2024 by a team of stakeholders in AI including policymakers, industry experts, researchers and startups of Nigerian descent set up by the Minister of Communications, Innovation and Digital Economy. With an assessment of Nigeria’s strengths, weaknesses, opportunities and threats, the NAIS sets out three broad objectives for leveraging AI: first is using AI as a tool for economic growth and competitiveness; second, for social development and inclusion; and third, for technological advancement and leadership. The NAIS also includes strategic initiatives and action plans to be implemented over a 5-year period such as deploying High-Performance Computing (HPC) Resources; curating a National AI Conference promoting knowledge exchange; launching a comprehensive AI skills development programme; creating a National AI Research and Development (R&D) Fund; establishing an AI Governance Regulatory Body; amongst other initiatives.

Legal and Ethical Challenges AI poses

It is undisputed that a successful national leverage of AI presents a myriad of possibilities including positioning Nigeria as a global AI leader, driving sustainable economic growth, and exporting commercially viable AI solutions that address real-world challenges. Indeed, sectors like Education, Agriculture, Health, and Manufacturing will greatly benefit from AI-driven solutions such as AI-powered telemedicine platforms to aid long-distance medical consultations in rural areas, and AI solutions to monitor food crops and predict diseases.

However, despite the tremendous benefits of AI to national development, there exists several challenges and gaps which must be addressed for a better leverage of the technology.

First is the absence of an AI-specific legislation. Currently, there are laws and policies that support the deployment of AI in Nigeria such as the National Information Technology Development Agency Act (NITDA) 2007, Cybercrimes (Prohibition, Prevention, Etc) Act, 2015, the Startup Act 2022, the National Digital Economy Policy and Strategy (NDEPS), and the National Policy on Science, Technology, and Innovation (NPSTI). However, these laws and policies focus on indirect areas such as the promotion of cybersecurity, protection of critical national information infrastructure, and provisions supporting technological innovation. Whilst these laws and policies lay some groundwork for the deployment of AI, more direct provisions are necessary. An AI-specific legislation will establish key definitions and scope for the use of AI; specify the regulator; codify the future national AI ethical principles; address liability of AI developers, operators and users; establish mechanisms for redress; provide tax benefits to AI startups and companies; mandate periodic inspection and audit of AI systems by AI developers; in addition to other critical provisions. This legislation will effectively address the unique challenges introduced by AI and promote responsible AI development.

For instance, the European Union has adopted a proactive approach to AI legislation. These initiatives aim to set strict guidelines for gathering, using, and preserving personal information. The EU Artificial Intelligence Act defines four risk categories which are: unacceptable, high, minimal and limited categories but critics have bemoaned the inadequacy of these risk categories to regulate General Purpose AI (GPAI) such as large language models (ChatGPT) or foundation models (Google Gemini) which have unpredictable applications. There have been proposals therefore for reforms to include additional risk assessment stages beyond the four earlier highlighted. This approach provides a more transparent link between business processes and risk such that risk projection is easily predictable.

Second is the ethical challenge of jobs displacement. A survey conducted by Duke University and the Federal Reserve Banks of Atlanta and Richmond found that companies say they are using automation to increase product quality (58% of firms); increase output (49%), reduce labour costs (47%) and substitute for workers (33%). Although conducted in the United States of America, this survey is reflective of the potential of AI to significantly takeover tasks performed by humans both now and in the future. Chatbots like GPT-3 and virtual assistants handle inquiries, reducing the need for human customer support services; also, OpenAI’s ChatGPT and Canva’s Magic Write help craft content for articles, blogs and social media posts lowering the need for human content writers. However, as noted by some experts, AI will not totally erase the need for human labour, at least not in the near future. What will happen much quicker is the replacement of human labour that is unable to use AI by another set of human labour that is able to utilize the technology for their job output. The question then is whether the labour market is digitally poised with the requisite tech skills to handle the job changes brought by AI.

To address this challenge of jobs displacement, it is recommended that the Regulator under the proposed AI legislation mandates a compulsory annual reporting by companies deploying AI, showing their adherence to the national AI ethical guidelines. Although yet to be developed, it is hoped that the national AI ethical guidelines will contain safeguards against indiscriminate job loss. The reporting should also show if the company conducted an assessment of the impact of AI on employment before deploying new technologies, including plans to support affected workers. Such plans might include retraining programs for the affected workers, job placement services, and career counselling. It is laudable that one of the objectives of the NAIS is to develop a comprehensive AI ethics assessment framework to provide a structured approach for evaluating the ethical implications of AI projects before deployment.

Third is intellectual property considerations. AI-generated content introduces several intellectual property considerations such as ownership of such content; theft of IP ownership by AI; patentability and enforcement of IP rights. A case in point is the use of ChatGPT to generate text where questions arise as to whether the technology is infringing on any existing copyright in generating its content, which will in turn, affect the right of the individual to claim ownership. There have also been discussions and lawsuits in foreign jurisdictions around whether an AI technology can be recognized as an inventor for the purposes of grant of a patent. The courts in those settings have consistently ruled that AI cannot be granted patents.

Nigerian courts will have these persuasive precedents to guide their decisions should the question around AI and IP rights arise. However, our IP laws must be reviewed to accommodate changes in the way IP is treated in relation to AI. Therefore, legislative review must address inventorship of AI, clarify copyright ownership of AI-generated content, and revise patent criteria to accommodate inventions from AI technology.

Fourth is the proposed establishment of an AI governance regulatory body under the NAIS despite the challenge of inadequate funding of government establishments. For instance, questions might arise as to whether the Nigeria Data Protection Commission, which is responsible for overseeing technology and organizational measures to improve personal data protection (including AI technologies), is receiving enough funding from the relevant Government ministries to support AI development focused on protecting personal data. To add to that, there is an existing National Centre for AI and Robotics (NCAIR) which is a subsidiary of NITDA, whose core function is technology, development and infrastructure. How do the relevant ministries allocate resources to fund these agencies to keep pace with the milestones in the AI ecosystem?

Finally, there is the challenge of AI in relation to data protection and privacy. As AI is data-driven and data-dependent, there is still a lot to be done to harmonize AI with privacy and data protection requirements. Take for instance Section 37 of the Nigeria Data Protection Act (NDPA) which protects the right of a data subject not to be subject to decisions based solely on automated decision-making except under listed circumstances. Given the complexities of AI and how it processes personal data, there ought to be a more precise and directional policy and document that also aligns with the NDPA principles.

Conclusion

It is quite commendable that Nigeria is taking the timely step towards the advancement and deployment of AI in the country. The NAIS provides a comprehensive outline of where the country is with AI, where it is going, and the roadmap for getting there.

As a thriving hub of tech talent and a resilient tech ecosystem, the country is poised to harness the possibilities of AI in driving technological advancement, economic growth and higher quality of life. By riding on the objectives and clear strategies under the NAIS, as well as an enabling economic and regulatory landscape, Nigeria will reap the benefits of deploying AI in the various sectors of the economy.

CONTRIBUTORS

Tilewa Oyefeso – Partner
Emaediong Lawrence – Associate

DISCLAIMER

This article is for informational purposes only and does not constitute legal advice or establish a lawyer-client relationship. For specific legal advice, please consult a qualified legal professional.