On August 1, 2024, the EU AI Act, the world’s first comprehensive legislation on artificial intelligence came into force. Designed to regulate AI systems based on risk, the Act sets a precedent that could influence countries like Kenya to adopt similar frameworks.
As the EU AI Act has extraterritorial reach, Kenyan businesses serving EU markets must comply, presenting both challenges and opportunities.
Kenyan policymakers and businesses must understand the EU AI Act and its implications for the country’s legal and economic landscape. By comparing it with global AI regulations, Kenya can develop a balanced approach to AI governance.
The EU AI Act uses a risk-based framework, classifying AI systems into four levels of risk: unacceptable, high, limited, and minimal. Stricter regulations apply to higher-risk categories.
The Act emphasises ethical AI aligned with seven principles: human agency and oversight, technical robustness, privacy and data governance, transparency, non-discrimination, societal well-being, and environmental sustainability.
Severe penalties for non-compliance and its application to non-EU businesses make the Act significant for global trade. Kenyan businesses with EU clients must ensure their AI systems meet the Act’s standards.
Kenya’s existing digital regulations, such as the Data Protection Act (2019) and the Computer Misuse and Cybercrimes Act (2018), establish a foundation for digital governance but do not address AI-specific challenges. The EU AI Act could inspire Kenya to create its own AI regulations focused on fairness, trust, and innovation.
Kenya’s Data Protection Act, modeled after the EU’s GDPR, emphasises data privacy and security. Similarly, AI-specific laws could ensure AI systems are trustworthy and human-centric. Drawing parallels to the EU AI Act, Kenya can adopt regulations requiring transparency, accountability, and ethical AI use.
The EU AI Act bans AI practices like scraping facial images from the internet and social scoring, aiming to eliminate bias. As Kenya grows its digital economy, adopting such measures could prevent AI-driven discrimination, particularly in recruitment, lending, and law enforcement.
The EU AI Act mandates an AI regulatory body to oversee compliance. Kenya could establish a similar body under an existing authority to ensure AI technologies meet ethical and safety standards. An advisory board comprising experts could guide the process, ensuring regulations are robust yet adaptable to technological advancements.
The EU AI Act encourages "regulatory sandboxes," controlled environments for testing new AI technologies. Kenya already uses such frameworks in its Capital Markets Authority to foster innovation in financial services. Expanding this approach to AI could encourage responsible development while driving technological progress.
Kenyan businesses offering AI solutions to EU clients will face compliance costs, such as ensuring transparency and bias mitigation.
Small and medium enterprises (SMEs) may find these requirements daunting but necessary to access EU markets.
Complying with the EU AI Act could position Kenyan firms as credible and reliable partners in European markets. This is particularly critical for sectors like fintech, healthcare, and legal tech, where ethical AI is paramount.
Non-compliance with the EU AI Act could bar Kenyan businesses from serving European clients, limiting growth. To mitigate this, firms could focus on limited-risk AI applications or seek expert advice on compliance strategies.
As Kenyan businesses align with global AI standards, the demand for legal and compliance expertise will grow. Local firms specialising in AI compliance could seize this opportunity to provide advisory services, supporting companies navigating international regulations.
Comparative analysis of global AI regulations
US: Sector-specific and decentralised approach
The US lacks unified AI legislation, instead relying on sector-specific regulations. Agencies like the FTC and FDA oversee AI in consumer protection and healthcare. While this decentralised approach prioritises innovation, states like California have implemented stricter AI-related privacy laws.
Key insights for Kenya:
A sectoral approach could suit Kenya’s diverse economy, enabling tailored regulations for key industries like agriculture, fintech, and transportation.
China: Strict and proactive regulation
China’s AI regulations focus on data security and ethical practices. Laws targeting deep fakes and AI-driven recommendation algorithms emphasise national security and societal stability.
Key insights for Kenya:
Kenya could adopt measures to counter misinformation and ensure AI technologies align with public welfare. Proactive regulation could enhance trust in AI systems while addressing risks like deep fakes.
Singapore: Balanced Innovation and Ethics
Singapore’s Model AI Governance Framework encourages transparency and accountability without imposing strict laws. This approach fosters innovation while promoting ethical AI practices.
Key insights for Kenya:
A flexible, non-legislative approach could allow Kenyan businesses to adapt gradually to AI standards. Voluntary compliance frameworks could pave the way for formal regulations.
Conclusion: A future-ready AI framework for Kenya
The EU AI Act provides a blueprint for Kenya to develop its own AI regulations. By combining global best practices with local context, Kenya can create laws that protect consumers, foster innovation, and position the country’s tech industry competitively on the global stage.
For Kenyan businesses, aligning with the EU AI Act presents both challenges and opportunities. Investing in compliance can open doors to new markets while enhancing credibility. By proactively addressing AI governance, Kenya can solidify its position as a regional leader in technology and innovation, ensuring its businesses thrive in an increasingly AI-driven world.
The writer is an Advocate of the High Court of Kenya
