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Navigating the maze of power, AI and administrative law: Insights from “Taming the tyranny of the barons”

The long-awaited inaugural lecture by Prof. Migai Akech will go into the history books. The lecture offers a comprehensive examination of the pervasive impact of power imbalances in governance structures, highlighting the role of bureaucrats or “barons” in shaping our lives. While it provides a detailed overview, a deeper exploration of the implications for administrative law and governance in Kenya and beyond is necessary.

A central theme of the lecture is the broad discretionary powers granted to administrators in both public and private domains, often leading to a deficiency in accountability and democratic participation in decision-making processes. Unchecked discretion can result in arbitrary and unfair decisions, as exemplified in the Associated Provincial Picture Houses Ltd v Wednesbury Corporation case,1 which emphasised the need for administrative decisions to adhere to standards of reasonableness and rationality. However, the effectiveness of administrative law in

curbing abuses of power depends on the strength and independence of the judiciary. In Kenya, as much as we try to deny and defend it, weak judicial institutions and pervasive corruption hinder the effective application of administrative law.2 Still fresh in our minds is the private meeting between the Chief Justice and the President at the statehouse, without any media coverage, which raised concerns. This followed an earlier incident where the Deputy President threatened to report a judge for corruption but refrained from doing so after the President spoke with the Chief Justice. This kind of culture without any repercussions threatens the future of Administrative law in Kenya.

The lecture emphasised the need for horizontal accountability mechanisms to hold bureaucracies accountable for the manner in which they exercise power. Nevertheless, these mechanisms face challenges such as executive control and manipulation of appointment processes, limiting their effectiveness in constraining administrative overreach.3 The critique can be bolstered by calling for a more explicit focus on fostering genuine institutional independence and public access to information. The judiciary and other regulatory bodies must be empowered to ensure the transparency and accountability of horizontal institutions. Strengthening these mechanisms will enhance governance and protect citizens’ rights and liberties.

Migai-Aketch
Prof. Migai Aketch

Prof. Migai also discusses how international geopolitical and neocolonial factors, such as development assistance and lopsided international trade regimes, impact governance in Kenya. The dominance of donor countries and local barons in these arenas can undermine local policy autonomy and accountability. To mitigate these challenges, there is a need for greater democratisation of regulatory regimes and legal frameworks to ensure the accountability of aid administration and international trade policies. Empowering local stakeholders and enhancing public participation can help counterbalance external influences and promote more equitable governance.

The lecture could benefit from a more nuanced exploration of how cultural and social nuances affect governance in Kenya. For instance, the convolution of democracy in the country may lead to the election of leaders whose decision-making does not adequately consider the diverse cultural landscape. This tendency aligns with Professor Carlo Cipolla’s concept of stupidity4 in governance, which underscores the risks of electing leaders who may lack sufficient knowledge or judgment. The prevalence of poorly informed or misinformed individuals in positions of power can result in leaders making decisions with far-reaching negative consequences, often exacerbated by inadequate checks and balances.

Furthermore, a deeper examination of how bureaucratic control intersects with existing social hierarchies and power dynamics in Kenyan society could provide insights into barriers to genuine democratic engagement. Additionally, the lecture highlights the importance of regulating private power, especially within privatised public services and international sports organisations. While the example of Maurice Odumbe in Kenyan cricket is instructive, the lecture could further explore Ochiel Dudley’s arguments on judicial review and how recent legal developments might lead to different outcomes in similar cases today.5 Prof. Migai emphasises the key principles of administrative law, including legality, reasonableness, fairness, and procedural due process. These principles offer a framework for challenging arbitrary exercises of power and legitimising governance through public participation and political accountability. By promoting transparency and inclusive decision-making, administrative law can mitigate abuses of power and enhance the quality of governance in Kenya.

Prof Migai outlined a future research agenda to see the potential benefits and risks of incorporating artificial intelligence (AI) into administrative decision-making and governance. Drawing insights from my paper, “The Algorithmic Puzzle; Inexorable Bias in Artificial Intelligence (AI) and Its Possible Ramification in Alternative Dispute Resolution,”6 stating that AI holds the promise of enhancing efficiency, transparency and impartiality is an overreach. AI’s reliance on algorithms can introduce biases that mirror existing prejudices and inequalities in society. Since algorithms learn from historical data, any systemic biases present in the data will be perpetuated in the decision-making process. This issue is particularly concerning in administrative law, where decisions directly impact individuals’ rights and liberties. Without proper safeguards, algorithmic decision-making may result in unfair treatment or discrimination against certain groups.

Additionally, the opacity of algorithmic systems can pose a significant challenge to transparency and accountability. Automated systems often involve complex data inputs and outputs, making it difficult for even the creators of the algorithms to fully explain how decisions are reached. This lack of transparency can undermine public trust and make it challenging to hold decision- makers accountable for their actions. Prof. Migai could also delve deeper into the impact of AI on the legal profession and administrative roles. As AI increasingly takes on tasks traditionally performed by legal professionals, such as dispute resolution and mediation, there may be significant changes to employment opportunities and career paths within the legal field. This shift could have broader implications for access to justice and the quality of legal representation.

Another important complexity involves the non-delegation doctrine, which requires that administrative power be exercised by the designated authority rather than delegated to algorithms. AI-driven decision-making may challenge this principle by automating processes and limiting human discretion. This could lead to a lack of nuanced decision-making and an overreliance on algorithmic outputs.

Several notable case laws involving AI and administrative law across different jurisdictions highlight the convolution and legal challenges that arise when AI is incorporated into administrative decision- making. In State v. Loomis,7 the Wisconsin Supreme Court upheld the use of an AI- driven risk assessment tool in sentencing decisions, emphasising that it should only be one factor in the process and not the sole determinant. The court required that the tool’s limitations and potential biases be disclosed to defendants to ensure transparency and due process. Similarly, in R (Bridges) v Chief Constable of South Wales Police,8 the Court of Appeal ruled that the police’s use of automated facial recognition technology was unlawful, emphasising the need for clear guidelines and regulations to protect individual rights.

The impact of AI on administrative law is further demonstrated by cases such as Uber BV v Aslam and Others,9 which, although primarily involving employment law, highlighted the challenges posed by AI in the gig economy. The UK Employment Appeal Tribunal’s finding that Uber drivers were workers, not self-employed, had implications for Uber’s use of AI to control and manage its drivers. These cases and other African efforts to legislate AI in administrative law emphasise the critical need for comprehensive legal and ethical frameworks. Such frameworks are essential to ensure transparency, fairness, and accountability in AI-powered administrative decision-making. By establishing these safeguards, the goal is to protect individual rights and uphold the foundational principles of administrative law.

The future research agenda could emphasise the need for robust regulatory frameworks and ethical guidelines governing AI use in administrative law. This includes measures such as requiring algorithmic impact assessments, establishing independent oversight bodies, and ensuring transparency in the design and deployment of AI systems. By exploring these areas in greater depth, the lecture could provide a more comprehensive understanding of the potential challenges and solutions associated with integrating AI into administrative law.

In conclusion, Prof. Migai provides a thought-provoking exploration of the nexus between power, democracy, and governance. Administrative law holds promise for promoting democratic governance, but achieving its full potential requires concerted efforts to strengthen legal institutions, enhance judicial independence, and democratise international regulatory regimes. By addressing these challenges, we can work towards a more just and equitable system of governance that upholds the rights and liberties of all individuals.

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Guest author The Platform Magazine