Online court sessions can help boost legal literacy for Kenyans

Magistrate Simatwo Gillian presides over a virtual hearing on June 16, 2022. [Collins Kweyu, Standard] 

Without any doubt, the successful digitisation of legal courts is one arena where Kenya stands head and shoulders above many other countries.

And now, upon the Chief Justice’s personal insistence, virtual hearings are quickly becoming the rule rather than the exception. What began as a survival tactic during the Covid-19 pandemic in 2020 has turned out to be a truly momentous accomplishment of the Judiciary.

Despite this, many citizens – and I was that way until only two weeks ago - are completely ignorant of their constitutional right to attend any Kenyan online law court freely (unless it is conducted in camera), much the same way one would walk into a physical one. 

Yet arguably at this moment when the Judiciary is battling routine mudslinging by a political class determined to paint judges as killjoys subverting government projects, the benefit of touting the accessibility of the courts could be immense. Availing every court’s unique electronic link to the public and encouraging participation is guaranteed to enhance legal literacy and assist in countering mendacious narratives.

When I joined a virtual Nakuru court recently, I was pleasantly surprised to encounter a friendly and courteous judge who treated claimants, respondents and counsel with equal kindness. Even when he ferreted me out as “a writer present researching the conduct of virtual courts”, he did it ever so gracefully, much to my relief. This ‘Lordship’ certainly looked the furthest thing from a vicious enemy of national development. Unfortunately, large sections of the public remain gullible enough to swallow the most spurious ogre stories about judges.

Meanwhile, judges’ and magistrates’ perplexing allergy to mirth, and their standard demeanour of extreme austerity - qualities that can actually alienate one’s own closest friends - have not helped matters. Some people even argue that the ‘order in court!’ bellowing and the clanging of gavels – if not done tenderly – can end up conjuring a deathly Armageddon, instead of giving hope and assurance to litigants.

All said, the session I attended was in every sense an eye-opener to the positive impact technology can have in the legal sphere. The participants logged in from diverse locations countrywide. One lady lawyer ably argued for her client from the comfort of her Ngong home, expressing delight at being able to wait out the notorious traffic jams there before reporting to the office later on.

When justice meets tech, the benefits are endless. Firstly, the courts have effectively insured themselves against the recurrence of another pandemic. Secondly, the cost of litigation which is usually sky-high has been lowered, as has the time needed for hearings and determinations. So have the physical spaces needed, with the benefits trickling down to the common people. All this is besides evasion of traffic snarl-ups and accidents, and cutting down on travelling costs.

During the time I spent in court, I noted that 12 serious matters were expedited within an hour - an improbable feat in a physical court. An obvious corollary to this is that judicial practitioners must henceforth strive to become tech-savvy or perish.

For the time being, however, virtual courtrooms still have to grapple with the challenges of unreliable gadgets, poor cameras, weak WIFI connectivity among participants, and so on.

A surprising nexus exists between Kenya's Power and jurisprudence. The latter’s endless and annoying electric power outages pose an almost existential threat to online court proceedings.

Unsurprisingly, since the judge is not in direct control of the online court, additional challenges arise around matters of etiquette and decorum. Some lawyers, either inadvertently or for notoriety, are reportedly appearing in virtual courts dressed in pyjamas, or worse. Recently, a particularly daring one breached all guardrails of decorousness to plead for his clients live from bed, with the disconcerting silhouette of a snoring partner clearly visible beside him. He had conveniently ‘forgotten’ to turn off his camera.

Sometimes, suspicious background voices have often been heard whispering illegal instructions and cues to clients under cross-examination. Unfortunately, the judge has no means of scrutinising the demeanours of those in the virtual ‘dock’ for traces of untruthfulness.

This raises a serious ethical question of whether justice is always served during online proceedings. The Judiciary could do well to find out how universities are circumventing similar cheating during their online examinations, some quite successfully.

I dare predict that continuous exposure to contemporary computer technology-with all its newest magical offerings such as artificial intelligence - will soon entice many courtroom practitioners into a new career in the cyber world. Conversely, my day in court also made me realise that, with the appropriate retooling, core scientists like me could actually become very knowledgeable intellectual property lawyers.

Too optimistic? Well, this migration happened to one prominent Hong Kong criminal court judge Wayne Gould who, upon his retirement, created a famous computer app to mass-produce and syndicate the popular Sudoku puzzles worldwide.

Consequently, Gould was in 2006 ranked number 46 in Time magazine's list of “100 men and women whose power, talent or moral example is transforming our world”.