The challenges of Artificial Intelligence systems in the Nigerian legal system
By: Raffaella Aghemo
Tags: Nigeria, AI, Artificial Intelligence, Automation, Legal

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by Raffaella Aghemo, Lawyer

We are used to looking only at well-defined and delimited fields, where business thrives and goes on, and where economic resources and technological availability make the road to innovation more straightforward. However, in my opinion, we never stop to analyse what Shakir Mohamed, in his “Decolonial AI”, defines as the “peripheries”, shifting our “ictu oculi” from the centre towards new paradigms, still unexplored, if not ignored.

Therefore, I found this study by Agunbiade Akintunde Ifeanyichukwu, whose name already says it all, since he signs himself Agunbiade A.I., which analyses the relationship between Artificial Intelligence (AI) and the Nigerian legal system, entitled “Artificial Intelligence and Law, a Nigerian Perspective”, really interesting. The aim was to explore the ways in which they can influence each other, capturing new and half-known aspects of little-discussed legal systems.

This book proposed the development of an indigenous AI system, coupled with ADR mechanisms, that would have the power to reduce the incidence of court congestion, while analysing a comprehensive legal framework of how it would work. This paper also considered the challenges that Artificial Intelligence could pose to the crime of negligence in Nigeria, in its present form, and concluded that for all purposes, the responsibility for any harm caused by the Artificial Intelligence should be of human beings, not the instrument, as it does not possess, and is not endowed with legal personality, like human beings. It is for this reason that there are plans to build an ethical and regulatory framework to guide the application, development and use of Artificial Intelligence in Nigeria.

If, it says, ‘from the beginning, a common thread in the history of man’s attempt to replicate himself in other beings. was reliance on magical or mythological methods, rather than rational approaches’, with the advent of the European Renaissance, there was a shift to empirical and scientific approaches to problem solving, and machines were looked to as tools for solving complex calculations.

The one that has been most commonly developed, to date, is weak AI, which can only work in a defined set of circumstances or does not possess a complete replica of human intelligence. For example, IBM’s Watson, a supercomputer created in 2011, which collected data on the most common diseases and could therefore develop quite precise diagnostic predictions, could be an encyclopaedia in medical knowledge, but would not be able to give an intelligent answer to the simplest question about grammar or a definition of law, simply because it was not programmed to do so. Likewise, Facebook’s image recognition would not be able to distinguish between distinct sounds, as it is not programmed to do so. These artificial intelligence systems can be said to reason by analogy.

In Nigeria, Grace InfoTech Limited, creator of the LawPavilion software suite, launched a new product in 2018 driven by AI, known as “Timi”, a chatbot that understands the civil procedure rules of Lagos State. “In explaining why they launched this product, they said 48% of cases in Nigerian courts are lost due to procedure, rather than substantive law. To mitigate this, there is a need for a legal assistant who is fully erudite on Nigerian procedural law, and can give the legal professional proper guidance on the right procedure to follow, so that his action is based on a strong legal background.” In the South African legal system, the adoption of AI has been pioneered by a top-tier firm, Bowmans LP, which has a geographical spread across several East and Southern African nations, such as Kenya, South Africa, Tanzania and Uganda. This firm works closely with Nigerian law firm Udo Udoma & Belo-Osagie. They have adopted an AI solution known as Kira, which automatically identifies and extracts information from contracts, similar to JPMorgan’s COiN software. The firm is thus the first law firm in Africa to adopt AI technology.

But the author rightly raises serious concerns about the risks that this innovation brings, starting with the data used for continuous training of the AI system, and the way the data is captured and stored. For this very reason, it dedicates section 5 of chapter one to the LEGAL CHALLENGES POSTED BY THE APPLICATION OF AI, listing the sections in:

5.1 rights of robots

5.2 data protection

5.3 industrial relations

5.4 intellectual property.

In the next section, however, he pays attention precisely to the impacts that this innovation will produce specifically in the legal environment, and cites in this regard the case of Case Cruncher Alpha which was pitted against 100 commercial lawyers. Both sides, AI and lawyers, were tasked with predicting the outcome of hundreds of concrete cases. Case Cruncher achieved 86% accuracy and won by more than 20%.

I want to report on a case, which the author tells us about, that is interesting because of its implications: David Lola, a plaintiff, went to court to claim compensation for overtime pay from a renowned law firm with which he had a contractual relationship to review thousands of legal documents. He was hired by Skadden Law Firm for a 15-month document review, which involved tasks such as looking at documents to see what search terms appeared and marking them in predetermined categories. The plaintiff asked to be paid for the overtime he worked, adding that the work was not purely legal (since overtime is not allowed there for the legal profession in the strict sense). The Court agreed with him, especially with a rider stating, and I quote: “an individual who in the course of reviewing discovery documents, undertakes tasks that could otherwise be performed entirely by a machine cannot be said to engage in the practice of law”, i.e. an individual who in the course of reviewing documents, undertakes tasks that could otherwise be performed entirely by a machine, cannot be said to engage in the practice of law!

“The legal profession is now at the mercy of machines. The more advanced they are, the more complex the tasks they can perform, the more the monopoly of tasks that a human lawyer can call his or her own is reduced.”

The authors of the article reporting the case agreed that lawyers, in order to survive the threat posed by technology, must evolve into innovators, adapting to a practice of law where they will be needed, not for their technical knowledge, but as purveyors of judgement and wisdom, guardians of fairness, impartiality and accountability to the law.

Other thinkers, however, took the opposite and adverse view, considering these tasks not at all of a merely mechanical nature, but rather requiring the intuition and refined flair of a well-prepared professional; thus, AI systems will help the legal profession, but it will remain the prerogative only of a creative and intellectually complex mind such as the properly human one.

In Chapter Three, the theory is put into practice and into the social reality of Nigeria, where, for example, prison congestion is severe. Eighty per cent of the Nigerian prison population (amounting to 72,000 persons) are awaiting trial, most of them for trivial offences that are bailable. An example is the maximum prison in Port Harcourt, Rivers State; originally designed to house 864 inmates, it currently houses 3,284 inmates. To curb the filing of cases that could end up stuck in court, a system that could predict the outcome of a case, based on judicial precedent, the history of the judge/tribunal in question, and social factors, would help ensure that the cases that go to trial are only those with a good chance of success. It would not end the problem, but by reducing the number of new cases regularly filed before already clogged courts, the judiciary would have the space to make further reforms. The proposed AI system would work with predictive intelligence, which could determine whether the case should proceed to court or be resolved using Alternative Resolution Mechanisms (ADR).

Chapter four analyses the tort of negligence and its relationship with AI systems: one of the elements of the tort of negligence is the duty of care. In other words, it must be ascertained that the defendant actually owes a duty to the plaintiff; a common assumption in various definitions is that the defendant or the person failing to exercise due care owes a legal duty. A legal duty can only be imposed on a person recognised by law or endowed with some form of legal personality.

This definition also presupposes that the defendant has the capacity to think or reason, neither of which can be attributed to AI in the purest sense.

Unlike many nations in the world, Nigeria lacks a codified statute that precisely defines liability in civil matters. It still depends on common law principles and judicial precedents, so the reference to the failure to exercise due diligence is intended to expose the challenges that courts may face with the introduction of AI into the judicial system.

If in the previous chapters, the author wanted to take a look at algorithmic systems, how they have been approached in history and today, how the use of them has become necessary and unavoidable provided they are assisted by human control, and how Nigeria still has several hurdles to overcome in order to approach them with the same “armour” as other more advanced states, in the last chapter, he hopes for the drafting of a series of ethical principles, which will be the lighthouse and the necessary guide for a future implementation and involvement of the Artificial Intelligence, which will facilitate the path of social and economic growth of States like Lagos, and which will contribute, in a decisive manner, to the common progress!

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Raffaella Aghemo, Lawyer