The High Court has certified as urgent a petition demanding that the government create and publish a comprehensive National Artificial Intelligence Policy Framework amid growing concerns over unregulated AI use.
The petitioners argue that Kenya’s current legal framework fails to address risks posed by high-risk AI technologies, leaving fundamental freedoms like privacy, equality and fair administrative action vulnerable.
The case, filed in Kirinyaga by John Wangai, Anthony Manyara and Peter Agoro, contends that delays by the Ministry of ICT in enacting a comprehensive AI policy, legislation and regulatory framework violate the State’s obligations under the Constitution to respect, protect, promote and fulfil fundamental rights and freedoms.
The petitioners argue that deployment of high-risk artificial intelligence systems by the government without an adequate legal framework “violates and threatens the law.”
The court noted the urgency of the matter but declined to grant interim relief, stopping the use of high-risk AI systems at this stage.
“However, on account of its wide reach, seeking to restrain the respondents from deploying, authorising and/or operationalising the use of ‘high-risk artificial intelligence systems’, the court does not grant the interim relief at the ex parte stage,” the court said.
The court directed the petitioners to serve the application on the Ministry of ICT, the Attorney General and Parliament ahead of a hearing set for February 19.
According to the petitioners, Kenya currently lacks a comprehensive artificial intelligence policy, legislation, or regulatory framework, despite the rapid deployment and proliferation of AI systems across the public and private sectors, including government services, financial institutions, educational institutions, employment, law enforcement, healthcare, election management, and digital platforms.
They said the absence of such a framework creates “imminent and ongoing threats to fundamental rights and freedoms guaranteed under the Constitution,” including rights to privacy, equality, dignity, fair administrative action, freedom of expression, political participation, access to information, consumer protection, fair labour practices and socio-economic rights.
The petitioners also contend that Kenya’s existing legal and regulatory framework does not adequately address the specific risks, challenges, and rights implications posed by artificial intelligence systems.
They pointed to the Data Protection Act, 2019, saying that while it establishes important data protection principles and rights, it does not include AI-specific provisions on algorithmic transparency, explainability of automated decisions, or mandatory algorithmic impact assessments for high-risk AI systems.
They added that the Act “does not contain specific protections against algorithmic discrimination, or governance frameworks for AI training data and AI-generated outputs.”
“The violations and threats to fundamental rights, democratic processes and the rule of law occasioned by unregulated AI deployment are imminent, ongoing and will intensify absent urgent judicial intervention, thereby justifying the certification of this matter as urgent,” Wangai said.
He noted that artificial intelligence systems, including generative AI, automated decision-making systems, algorithmic content moderation, biometric systems, facial recognition technologies and AI-enhanced surveillance tools, are being deployed in Kenya.
Wangai said these technologies are being used without “adequate safeguards, oversight, accountability mechanisms, transparency requirements, impact assessments or effective remedies for persons adversely affected.”
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