Humanity must define legal innovation in the virtual age

Friday May 10 2019

By LUIS FRANCESCHI
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Mark Ng’aru, a passionate lawyer and a well-regarded professional, explained to me recently that in the latest Lamborghini and Maserati models, the car’s owner can change the vehicle’s colour just by pressing a button. This means that cars will no longer have a registered colour in their log book, but will have to be identified by some type of “biometric” information. Registration plates, colour and possibly shape or model will no longer be a point of reference.

Mario Di Giulio, a senior partner at one of Europe’s biggest and most renowned law firms, Pavia & Ansaldo, is a volcano of ideas. Innovation and the world of robotics, fashion law, e-law, media, digital courts, nutrition law, energy regulation are some of the issues boiling throughout his conversation… “we have to make it work” he says, “these challenges are exciting”.

Mario’s eyes brighten with excitement and admiration when he remembers Everlyne and Joy, two young Kenyan law students who did an internship at his firm’s commercial law department, in Italy. He was amazed at their seriousness, discipline and capacity to abstract and face complex legal issues.

Law in the virtual era; the modern world

Law and innovation have never walked hand in hand. Law has always been chasing innovation and when it catches up with it…kills it. In Kenya, we tend to think that all our problems will be resolved by passing new and more stringent laws. This is a fallacy. Paraphrasing Cicero, we can say, “the more the laws, the less the justice”. Most innovations happen where law is lacking…and when law jumps in to regulate the space, innovation is choked.

The biggest challenge for law in this new era as we transition from the contemporary world into the e-era, the virtual age, is how to make law comprehensive and elastic enough to foresee the challenges of innovation and keep it alive.

This temptation to over-regulate and pass always new and more stringent laws is not only in the mind of every legislator and lawyer, but it sadly also finds its way into legal education. At the very core of what we teach young lawyers there is always the idea of regulation. We teach students to regulate, we applaud their dissertations and essays when they deal with regulating unregulated spaces and make a living out of it.

The challenge is twofold. On the one hand, we easily fall into over-regulation, and the state stops being the enabler to become the obstacle to progress. We want to foresee all possibilities and we do so by choking development. On the other hand, we have a passion for not enforcing and follow through the laws that we have passed.

I remember when the famous Michuki rules were passed. A friend of mine set up a business to install speed governors. Soon after Michuki stepped out of the Transport Ministry, he sold the business. He was going bankrupt. We have a chronic disdain for law enforcement, and we only get serious about it when there is an immediate economic or political gain at stake. In fact, I usually say, with realistic sarcasm, that we deal with everything as we deal with copyright, “you have the copyright while I have the right to copy”.

There is amazing innovation happening in Africa, and innovation without legal protection is not sustainable…just like inhuman innovation which is bound to fail. Our shortcuts will eventually turn against us and our culture; short term gain, long term pain…as it happened in the famous Kikoi dispute.

The human face of law

Historically, law processes have been mostly lengthy and perfunctory; terribly boring, even for the lawyers whose only consolation is the fee note they will dump on their clients. Law was never interested in the future; it determined today’s justice based on yesterday’s experience. “Things are changing”, Mario’s says, and this is exciting.

The virtual age will challenge our humanity, our values, our ways and beliefs in manners we cannot predict. How we identify goods, create and transact money and things, how we protect men and women, nature, life and freedom without jeopardising further and greater developments, will all be challenged and put to test.

It remains our challenge, to pass less and better laws, and to enforce with a greater degree of seriousness the ones we have already passed.

Dr Luis Franceschi, Dean – Strathmore Law School, [email protected]