Letlhokwa Geoge Mpedi is the Vice-Chancellor and Principal of the University of Johannesburg.
They recently published an opinion article that first appeared in the Mail & Guardian on 20 March 2025
Historically, the law has been a largely reactive tool. But, in the age of the fourth industrial revolution (4IR), it cannot remain so. The genesis of this column was a simple question: how do we, as a society, navigate the seismic changes brought about by the 4IR while ensuring that our legal frameworks keep pace with technology? Furthermore, what are the implications for Africa, and South Africa specifically?
We have already seen how the 4IR — particularly artificial intelligence (AI) — has revolutionised entire industries, but what seems to have remained unexplored is how it affects the very foundation of justice and governance: the law. In pondering the changing landscape, both from a technological and legal perspective, it is apparent that there is a distinct gap.
Criticism has long been levelled against the law for being a reactive tool. As change unfolds, the law responds accordingly. This, particularly in the context of the 4IR, is a flawed system. Of course, there are also arguments made to the contrary.
At a conference last year, for example, Professor Nicolas Petit, of the European Union Institute, argued that premature law could kill innovation. Is this so? There is a clear need to strike a balance in this regard. It stands to reason, however, that we should not only respond to these profound changes in the 4IR landscape but anticipate them.
I am reminded of the words of the 18th-century journalist William Goodwin, who once said, “Law is made for man and not man for the law. Wherever we can be sure that the most valuable interests of a nation require that we should decide one way, that way we ought to decide.”
While AI, for instance, has paved the way for significant advancement, the caveat is that it is also increasingly being used for harm. The proliferation of autonomous weapons, the spread of dangerous social media rhetoric, entrenched algorithmic bias and technology’s ability to exacerbate our inequalities demonstrate the peril.
In a world where AI systems can make decisions previously reserved for human judgment, the questions that arise are no longer theoretical or futuristic, and they demand answers. Who is accountable when an AI makes a mistake? How do we preserve human oversight while harnessing the potential of these systems? How do we protect individual privacy and rights in a world where AI can analyse vast amounts of data with unprecedented speed and accuracy?
We are increasingly seeing a push for regulation in the sphere of technology. As we navigate this transformative era, it is imperative for legal systems to strike a delicate balance: embracing innovation while upholding principles of fairness, accountability and transparency.
Although the law is often reactive, efforts are being made to adopt more proactive approaches, such as regulatory sandboxes (a controlled environment established by regulatory authorities, often in the context of emerging technologies or innovative industries, where businesses and startups can test their products, services or business models under relaxed regulatory conditions), anticipatory regulation and public consultations on emerging issues.
Much of this technology is in its infancy, and the legal responses are just being crafted. China’s laws and the European Union’s AI Act are notable here. Commentators have argued that this shift will spur the “Brussels Effect”, a term coined by Anu Bradford in 2012, denoting the EU’s influence on regulatory frameworks beyond its borders.
Yet, overarching questions remain about whether this should be the standard globally and whether the regulation that has already been established is even suitable for the African context. Many of the challenges related to AI, including bias, infrastructure or the lack thereof, and access, disproportionately affect the continent.
Indeed, there has been some progress. In 2021, Africa’s AI blueprint was launched. The proposal suggested establishing regional AI centres of excellence to encourage collaboration across various AI fields in Africa. It emphasised the importance of ethical considerations in AI adoption and highlighted human development as a primary focus. The document also underscored the data’s economic value and advocated for effective management for economic growth.
It identified key sectors that could benefit from AI adoption and outlined a potential roadmap for member states to navigate AI implementation. Additionally, the proposal suggested policy and regulatory approaches to address AI challenges. Similarly, in 2021, the African Commission on Human and Peoples’ Rights adopted resolution 473, outlining the need to address the implications for human rights of AI, robotics and other new and emerging technologies in Africa.
More recently, the African Union Development Agency published a draft policy regarding AI regulation in February 2024 with an official endorsement expected this year. The policy includes industry-specific recommendations aimed at reviewing AI systems, providing regulatory oversight, and forming AI councils.
The AU Draft Policy encourages members who do not have policies in place to adopt this policy, while members who already have AI regulations in place should review and align their policies accordingly. Despite these various initiatives, little has been actioned so far. We need to draw the line between rhetoric and policy.
In South Africa, there is no legislation that specifically speaks to AI. While some AI legislation is enacted, the Protection of Personal Information Act, the Consumer Protection Act or the Electronic Communications Act, for instance, is not comprehensive enough. One of the recommendations of the Presidential Commission on the 4IR was to amend, create, and review policy and legislation.
As the report states, the objective is to empower stakeholders with technology policies that emphasise responsible use and to create a science-literate judiciary.
In particular, the focus will be on data privacy and protection laws and digital taxation. Last year, the department of communications and digital technologies published a national AI policy framework, marking a key step toward establishing the country as a leader in AI. The framework aims to establish a foundation for AI regulations and a potential AI Act.
It focuses on research and development, talent cultivation, and infrastructure enhancement to build a strong AI ecosystem. This aligns with the AU’s broader AI strategy. While these developments are encouraging tools for establishing a legal framework, we have been slow in adoption, and our scope is not comprehensive enough to keep up with the pace of AI developments.
Economics professor Nagla Rizk, director of the Access to Knowledge for Development Center at the American University in Cairo’s School of Business, writes, “Africa is moving forward with exploiting the promise of AI for development. The role of the law is instrumental in framing this process. An enabling legal landscape will be crucial in navigating the multiple challenge and exploiting the opportunities. Within such regulation, African realities call for an African-centric approach for governing data and AI in a way that maximises the potential of AI, corrects harms and addresses the risks of inequality and marginalisation.”
Regulation should balance protection with accessibility and use of AI technology. Additionally, a pro-development and public interest approach should be adopted by key investors and regulators to ensure AI benefits are widely shared. What is apparent is that we need to build capacity, create regulatory bodies, and raise public awareness.
Africa certainly must catch up in many instances, but regulation should not wait. Without these tangible steps globally, AI could emerge as a greater threat. Importantly, this is not an undertaking that can be confined to individual states. Rather, there is a fundamental call to establish a common set of practices and regulations internationally. Much more needs to be done.
This column will serve as a platform for critical discourse on how technological innovations are reshaping legal paradigms, challenging traditional governance structures, and necessitating new approaches to regulation. It is all too clear that the continent’s voice in global technology governance discussions has been disproportionately quiet despite the profound implications these decisions have for Africa’s development trajectory, and there is a fundamental need to centre African experiences and needs. This begins here.
*The views expressed in this article are that of the author/s and do not necessarily reflect that of the University of Johannesburg.
