AI, bias and the rule of law

Artificial intelligence (AI), bias and the rule of law will increasingly require attention. Therefore, a constitutional approach to regulating it in South Africa will inevitably be needed. University of Cape Town (UCT) PhD student Nokuthula Olorunju's work serves as a useful guide. On Tuesday, 8 September, she will be part of the latest group of graduates to receive their degrees when she walks across the stage in the Sarah Baartman Hall with her red graduation gown and doctoral tam.

Nokuthula's research interests also include the judiciary, data protection and privacy, gender rights and equality, civil society and public interest litigation. "My interest began during my master's, when I examined the judiciary's use of predictive algorithms. This was after reading books by Richard Susskind and ProPublica's 2016 investigative report on Correctional Offender Management Profiling for Alternative Sanctions (COMPAS), a racially biased algorithm used to predict prisoner recidivism. The intersection of law and technology is unique, especially because the law is seen as a steadfast rock; however, would technology be the river that changes its shape? That's what interested me," she said.

"With the widespread use of AI these days, it sometimes seems easier to set out the rights that are not directly affected by its use. However, I think - and my research suggests - that privacy, equality, and expression are increasingly affected by indiscriminate use of AI. I would also be remiss not to mention environmental rights, as we are increasingly seeing research on how AI data centres are damaging the environment," Nokuthula said.

"I advocate for an interdisciplinary approach in my research, so I had to be willing to stay in my lane."

Her research discusses a few examples of regulatory approaches taken thus far but encourages the South African legislature to consider adopting a hybridised approach, which she refers to as the constitutional approach based on a constitutional theoretical framework.

"I found that for the longest time South Africa took a 'wait-and-see' approach to AI. Much of the discussion was being led in the private sector, by civil society and academia. There are two sides to this approach: on one hand, South Africa has benefited from seeing how other countries have approached AI regulation; on the other hand, waiting too long could lead to 'copy-and-paste' adoption of AI laws that have no reference to the South African context."

This approach has a litany of unintended consequences. "Given South Africa's history, it's the perpetuation of racial and gender bias, the exponential increase of the digital divide and lack of access, the exploitation of the rights of children and vulnerable members of our society, environmental degradation, theft and misuse of creative works, maladministration of resources and the perpetual lack of accountability. Unfortunately, some of these consequences already exist due to human behaviour, but indiscriminate use of AI could be a catalyst for making them much worse."

PhD journey

She added: "Children would be at the top of my list as the most vulnerable group to biased AI systems in the country, especially when their time online is unmonitored. We've seen steps taken in several countries to ban children's social media use to prevent undue influence and misuse of their data. Other groups include those who are not digitally adept/literate, the unemployed, the elderly targeted through AI-enhanced cyberattacks, and marginalised members of society who risk facing increased/AI-enhanced bias and discriminatory practices.

"I advocate for an interdisciplinary approach in my research, so I had to be willing to stay in my lane and accept critique of my understanding of certain concepts from those in other fields. I was lucky to have worked in an organisation where I could interact with people in different areas of AI and AI regulation at the time, which helped me better understand how it was evolving. This enriched my research tremendously. In summary, I was willing to accept other perspectives and was not afraid to ask for help and get other perspectives."

Nokuthula concluded: "The PhD journey can be lonely, and it comes with its own 'five stages of grief' but getting to a point where one accepts that you can never know everything - and being okay with that - was a high point for me. I dedicate this PhD to God and my family, with a special thank you to my supervisors."

On a lighter note:

What is a skill you'd love to master that has nothing to do with your work?

I'll give you two: playing tennis and the bass guitar.

Do you recall one moment from your PhD journey that made you smile broadly?

My sister and I were working on our respective PhDs simultaneously, and we formed our own support group to navigate the five stages of completing our degrees. It was a safe space and filled with laughter.

What is one trend that you are absolutely enjoying at the moment?

There's a trend where funny comments are turned into songs on social media using AI. It is very entertaining.