“The law is an ass” is a phrase which originates in a play from the 1600s and was popularized by Charles Dickens in his novel Oliver Twist. Mr. Bumble, a character in Oliver Twist, famously used the phrase when criticizing a legal principle that he found absurd. The implication of this idiom is that the law is rigidly and stubbornly applied in a one-size-fits-all manner, without considering individual circumstances. Automated decision-making (ADM) systems, defined under the GDPR, are processes where decisions are made solely through automated systems without significant human intervention.
Uganda, through the Ministry of Works, recently started issuing automatic fines to motorists who exceed speed limits or run red lights. E-Governance is one of the highly recommended structures for the Government to be adopted for effective services, but not to make citizens uncomfortable. E-governance involves using information and communication technologies (ICTs) to enhance the delivery of government services, improve information exchange, and facilitate citizen participation, making government more efficient, transparent, and accountable, not burdensome. The maxim of law to such unfair policies and laws clearly states lex iniusta non est lex.
According to the Government Citizen Interaction Centre (GCIC), An EPS Ticket has 25 codes for traffic offences, whose fines vary, depending on the offence committed. The codes range from Ugx 20.000/= to Ugx 200.000/=, which the offender has to pay or clear within 28 days. Payment for an EPS Ticket automatically leads to closure of the offence. Isn’t this money making law, why not have other forms of punishment? This afflictive punishment making the citizens suffocate. “They can’t breathe”
Afflictive punishment was invented by Bentham (Rationale of Punishment, London, 1830) Bentham’s theory of punishment, rooted in utilitarianism, aimed to minimize the pain and suffering inflicted on individuals while maximizing societal benefits. He viewed punishment as a necessary evil, a means of deterring crime and ensuring public safety, but one that should be applied with careful consideration to avoid unnecessary harm. Bentham’s concept of “afflictive punishment” extended beyond physical pain and included various forms of punishment, including imprisonment, fines, and corporal punishment. He advocated for proportionality in punishment, ensuring that the severity of the punishment matched the severity of the crime.
The legality of automated systems in law hinges on several factors, including the type of automation, its purpose, and the legal framework governing its use.
Given the central place fines play in criminal justice, the absence of proper regulation and literature on it has made the authorities misuse fines, from a monetary penalty to merry making.
Under the principles of data collection section 3 of the DPPA Act cap 97, laws of Uganda: accountability, fairness and transparency are key principles which ought not to be over-looked.
Under section 22 of the Electronic Transactions Act Cap 99, a public body by notice in the Gazette, specify the manner and format in which the data message shall be filed, created or retained. The manner and format of the EPS raises questions with a few answers.
The Data Protection and Privacy Act 2019 (the Act) aims to protect the privacy of individual and their personal data and subsequently Section 27 of the DPPA Cap 97 provides for rights in relation to automated decision-taking. It prohibits a decision that is solely based on the processing by automatic means.
The rights against solely automated decisions aren’t just in Uganda but recognised internationally, Article 22 of the EU General Data Protection Regulation (GDPR) protects individuals from being subject to decisions based solely on automated processing, including profiling, unless certain exceptions apply. These exceptions include cases where the decision is necessary for a contract, authorized by law, or based on explicit consent.
Even when Government argues human involvement, it beats my understanding to ascertain at what stage did the human individual participated in this decision which I believe the ministry cannot prove to the satisfaction. Automated systems can be used to generate and manage legal documents, but it’s important to ensure that the documents are accurate and compliant with legal requirements.
According to Simona Demková[1], Automated Decision Making systems offer undeniable benefits in efficiency, speed, and scalability. However, the growing dependence on these systems has raised concerns about transparency, fairness, and the protection of fundamental rights.
Chapter 4 of the 1995 constitution of Uganda provides for a right of fair hearing as a non-derogable right under Article 44 which must be respected at all times. Does the system provide a fair hearing?
Such artificial intelligence systems are bleeding grounds for high-risk human rights violations. They therefore require Human oversight. Machines can go wrong, for example Air Canada, the largest airline in Canada, was ordered to compensate a passenger who received incorrect refund information from its chatbot. The company acknowledged that the chatbot’s response contradicted the airline’s policies but refused to honor the lower rate.
Even in cases where automated systems make decisions, it’s crucial that there is human oversight to ensure fairness and address potential biases. The SCHUFA[2] case by The Court of Justice of the European Union (CJEU) held that a decision qualifies as automated if it relies significantly on automated data processing, even if a human operator performs the final step. The case further laid down a principle found in our DPPA that in cases where automated systems play a crucial role in decisions that affect individuals; those individuals have the right to know how those decisions are made and to challenge them if necessary. Be that as it may, for human involvement to count as a true safeguard against the risks of ADM, it must influence the final decision in a substantive way, ensuring that individuals are not subjected to fully automated decision-making without recourse.
In conclusion, policy makers and legislators need to look into this system before our people who can’t breathe, die.
[1] Automated Decision-Making and Effective Remedies : The New Dynamics in the Protection of EU Fundamental Rights in the Area of Freedom, Security and Justice, Elgar Studies in European Law and Policy
[2] Judgment of the Court (First Chamber) of 7 December 2023 (request for a preliminary ruling from the Verwaltungsgericht Wiesbaden — Germany) — OQ v Land Hessen
(Case C-634/21
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