Keeping it simple - The use of artificial intelligence for adjudication in South Africa

Beyond being useful tools that can be regulated to be transparent and accountable, AI systems also need to be simple enough that normal judicial- and other legal practitioners can use them. The fact that AI systems in adjudicative and other related legal processes should be simple to use is imperative. This task will mainly lie (although it must be guided and assessed continually by the legislator and government policy makers)⁵²¹ with the programmer who creates the AI system.⁵²²

517 The Data Protection Act 2018.

518 Kroll et al 2017 UPLA 633.

519 Idaho Code Section 19-1910 of Title 19 Criminal Procedure 2019; also see Coglianese and Ben Dor 2020 FSPL 11.

520 Idaho Code Section 19-1910 of Title 19 Criminal Procedure 2019.

521 Kroll et al 2017 UPLA 696.

522 Kraus 2019

It deserves mentioning that no legislation or policy can provide programming specifications to ensure that when computer programmers are developing AI systems, they completely remove all software bugs and ambiguities,⁵²³ since the computer programmers that develop AI systems cannot take up the role of policy maker or that of legislature, when it comes to determining which principles of legal fairness should be included in the development of the system.⁵²⁴ The first step towards keeping AI systems simple is for programmers to ensure that the systems are designed in a way that offers clear explanations.⁵²⁵

These explanations should be designed in such a way that they are in a plain and understandable language, like English, for example (as opposed to computer programming languages that require technical expertise to be understood).⁵²⁶ Since AI systems are dynamic, in that they are constantly improving (this occurs as a result of machine leaning, as discussed above), the result of having clear and understandable explanations will further help educate policy makers and legislators as to the changes or the updates that the system needs; thereby, continually working to improve the operation of the AI systems.⁵²⁷

The process of ensuring that the AI systems which will be used in adjudication are simple to use will require cooperation and collaboration from computer developers, policy makers and the legislator.⁵²⁸ Since the rate at which AI systems are being developed is quite rapid,⁵²⁹ legislators and policy makers need to ensure that they are ready and agile enough to be in a position to place regulatory laws and

https://www.americanbar.org/groups/judicial/publications/appellate_issues/2019/winter/artificial- intelligence-invades-appellate-practice-the-here-the-near-and-the-oh-my-dear/.

523 Kroll et al 2017 UPLA 696.

524 Kroll et al 2017 UPLA 696.

525 Kraus 2019

https://www.americanbar.org/groups/judicial/publications/appellate_issues/2019/winter/artificial- intelligence-invades-appellate-practice-the-here-the-near-and-the-oh-my-dear/; also see Doshi-Velez et al Accountability of AI Under the Law 2.

526 Kraus 2019

https://www.americanbar.org/groups/judicial/publications/appellate_issues/2019/winter/artificial- intelligence-invades-appellate-practice-the-here-the-near-and-the-oh-my-dear/.

527 Kroll et al 2017 UPLA 696, this process will involve a lot of iterations made to the AI systems after the fact. This of course is a good thing since it will ensure that the AI system is continually improving.

528 Kroll et al 2017 UPLA 695.

529 Kroll et al 2017 UPLA 633.

frameworks in place that will govern not only the use of AI systems in adjudication but also their developmental process.⁵³⁰

Another way of ensuring that AI systems are easy to use during adjudication and other related court processes is through government initiatives to promote AI literacy among people, particularly those people who will regularly be in contact with these systems.⁵³¹ The process of promoting AI literacy is a comprehensive one.⁵³² With regard to the above-mentioned fact, that the process of making sure that AI systems are simple to use, the Council of Europe hold the following viewpoint:⁵³³

Those involved directly or indirectly in the development or application of AI systems need to have the necessary knowledge and understanding of how it functions and be informed about its impact on human rights.⁵³⁴

The process of ensuring that all relevant parties are involved in the development process of AI systems will go a long way towards ensuring that those systems are simple to use in adjudication, and other similar and related legal processes. The government needs to set up an agency that will be tasked with carrying through this educative process.⁵³⁵

By promoting AI literacy, the government will ensure that the use of AI systems in adjudication becomes a little simpler because people will have a better understanding of the technology, and therefore, not be intimidated by it.⁵³⁶ This will also help to ensure that the misconceptions that people might have generally had about AI systems are cleared up.⁵³⁷

530 Kroll et al 2017 UPLA 696.

531 Council of Europe 2019