The public address by President Uhuru Kenyatta last Saturday, cast a ray of hope that the government is considering relaxing some of the strict measures by the Ministry of health to prevent the spread of COVID 19.
The measures which included the 7 pm to 5 am curfew as well as the cessation of movement in and out of 5 counties, Nairobi metropolitan, Mombasa, Kilifi, Kwale, and Mandera have been a subject of debate across the country.
The measures have resulted in a slow economic meltdown, loss of jobs, and salary cuts for thousands of Kenyans.
In the corridors of Justice, there has been a backlog of cases with COVID 19 pandemic escalating an already bad situation to worse.
This necessitated the petition by the Law Society of Kenya to list legal services as part of the essential services.
It is for this reason that justice Weldon Korir ordered that legal services be listed as an essential service under the public order Act giving lawyers access to movement in courts countrywide to discharge their duties.
This comes as a plus to boost the judiciary’s efforts to remotely provide access to justice and resolutions of legal problems in the face of the COVID-19 pandemic.
These range from alternative mechanisms to resolve disputes, virtual/on-line service delivery by courts, and enhanced use of data to plan judicial workload and coordination of services across sectors.
The National Council on the administration of Justice by way of updates made subsequent resolutions to scale down operations across the entire justice sector to reduce interactions with the public and as a way of preventing the spread of COVID -19. The recommendations mainly bordered the increased use of ICT tools, E-fillings, and Email communications.
While these efforts are lauded, the use of ICT as an enabler of access to Justice during this pandemic period has posed several challenges. For instance; the migration of the judiciary from one ICT tool to another without proper orientations, partial handling of cases such as; plea taking, concentration on remandees mainly for mentions, plea bargaining and delivery of rulings and judgments. For civil cases, the attention being on urgent applications, mentions and delivery of judgments and rulings, and lack of proper considerations for vulnerable litigants under self –representation.
The above challenges have since caused a divide within the legal profession and stakeholders in the justice sector with the emergence of divergent opinions on the way forward for the justice sector given the backlog of cases. Some members argue that the judiciary should consider conducting matters through open court sessions while adhering to the COVID-19 safety guidelines.
At some point the presiding judges and/or heads of stations were directed to liaise with the court users’ committees and come up with guidelines on how hearings and appeals within the stations will be conducted under the guidelines of the Ministry of Health on combating COVID -19.
Inspection of courts by the Ministry of Health and fumigation of court premises were some of the exercises taken in a bid to have the courts partially opened. However, conducting open court sessions remains a far-fetched reality, which can only be achieved independently through the efforts of the presiding judges/heads of stations of various regions.
With post-COVID social and economic effects, there is a likelihood of increased demand for legal services especially for entrepreneurs, middle income, and disadvantaged groups, which may result in more pressure on the current strained Judicial system.
Therefore, any response to Post COVID 19 legal needs must combine accessible and people-centered justice systems as a critical pillar; this is because legal and justice services play a vital role in revamping economies, social cohesion, and restoring confidence in institutions.
There is a need for robust action by the judiciary to ensure that litigants, regardless of their socio-economic background, have the necessary legal support and access to channels to address their legal problems, failing to do so will lead to more inequalities and injustices in the society.
The Judiciary should capitalize on the lessons learned in this pandemic period and streamline judicial and court operations.
A blend of both the traditional way of dispensing justice and adoption of technology should be considered; only cases that are listed for full hearings and very contentious applications should be heard in open court. The rest adopt the technology.
The Judiciary should engage stakeholders dealing with the disadvantaged members of society on access to justice through the adoption of technology.
Providing secure and confidential video access that may be needed by criminal defense advocates when they are not allowed to meet in prison or court with their clients to attend hearings or provide confidential legal advice and to protect their client’s constitutional rights is critical for criminal cases to proceed on-line. Plea bargaining, mentions, rulings, and judgments for remandees be done through ICT, to keep the wheels of justice moving and also reduce the buildup of cases.
The use of ICT in the judiciary, if implemented, would go a long way in saving costs and time for the litigants. Online service delivery will benefit the judicial system and will provide flexible retrieval of stored information.
This will allow judges to view the proceedings of a previous case or to retrieve other important documents at the click of a button. Data sharing between different courts and various departments will also be made easy, as everything would be available online under the integrated system. With the help of video conferencing, the advocates and litigants can be made to participate in the proceedings from various locations other than the courtroom. This will, to a certain extent, reduce the time required to solve the case and will also be cost-effective.
A robust and sustainable on-line service delivery in our courts will be a major step in the transformation of our legal framework. On line service, delivery by courts can not only help clear backlog of cases but also bring transparency and accountability in the judicial system.
The Writer is an Advocate of the High Court of Kenya, Proprietor, and founder of Onyango Onunga Advocates