On 15th March 2020, following the anouncement of the first reported case of Covid-19, the president of the Republic of Kenya issued a press statement instituting measures aimed at mitigating the spread of the disease, including working from home measures with the exception of critical and essential services.
On the same day, the Chief Justice, David Maraga, issued a press statement that covered administrative issues including the scaling down of court activities and suspension of appeals, hearings and mentions in all courts countrywide.
On 19th March 2020, the National Council on the Administration of Justice announced further measures to curb the spread of the disease, including e-filing of documents in the High Court Commercial and Tax Division and Chief Magistrates Commercial court as well as electronic delivery of rulings.
On 20th March 2020, the Chief Justice, through Gazette notice number 2357 published practice directions on electronic case management to aid in the running of the justice system while adhering to the Ministry of Health’s directives on staying at home, working from home and social distancing. Video conferencing tools and platforms such as Zoom, Whatsapp, Skype, Google Meet and Microsoft Teams were swiftly incorporated into the court’s operations, in fact into all spheres of life.
This shift in the operations of the justice system has brought with it some challenges that might seem to overshadow the overall gains of of technological advancement in a field that has been plagued by an archaic view of the practice of law steeped in rules and procedures and with very minimal
a- Digital Illiteracy
How many citizens have access to computers, laptops or other devices that can enable them to log onto virtual court proceedings? How many citizens can afford WIFI or data bundles to enable connectivity on their devices (that they don’t have to begin with!) to the tele and video-conferencing platforms?
Prosecution of matters such as childrens’ matters and sexual violence cases is impeded by the fact that the physical appearance of the litigants is not possible, not to mention the police stations are not equally not operating at optimal capacity. Legal practitioners cannot access the courts as freely as they could pre-pandemic.
b- Judicial Priorities
Arising out of the directives issued by the Ministry of Health specifically with regard to social distancing and its connection to the means by which the disease is spread, de-congestion of the prisons was the priority between mid-March and mid-April. This resulted in judgements for remandees and those who had put in their appeals for sentences issued. Revision of bond terms and postponement of non-urgent hearings was inevitable; the former because of the need to decongest the prisons and the latter due to the challenges arising out of the travel restrictions and resultant limited working hours in force.
c- Case Back Log
Case back logs have been experienced due to the slow down of operations arising out of the directives given by the Ministry of Health including stay at home, work from home and social distancing. Also to take into consideration in the back log is the groups who have a higher risk of contracting the disease as indicated by the Ministry as the elderly and those with pre-existing conditions. The fraternity of the legal profession can be said to include a relatively large number of those who are ‘elderly’ and their health needs to be safeguarded in a bit to protect them from contracting this disease.
Technological facilities to enable the set up of virtual court rooms for the public to access justice without having to travel long distances is key, at least for those who are able to afford computers and other smart devices to enable connectivity. The judiciary needs to ensure that the funding they receive (whatever little they get) is prioritized to technological advancements and upgrades in courts around the country.
Judicial systems worldwide have scaled down their operations and are embracing innovation and leveraging on ICT to facilitate access to justice. Dispensation of justice cannot be downplayed during the pandemic, moreso because of the marginalized persons and communities who are facing it even tougher than before the onsent of the first case of the disease in the country due to the effects of the pandemic on the economy. The wheels of justice must continue turning albeit in a different tangent adapting to the evolving environment.