ONLINE: Courts stay closed, upscaling risky - CJ

The National Council on Administrative of Justice has rescinded its decision to upscale court operations, saying they pose a coronavirus risk to judicial officers and the public. 

The move on Monday by the NCAJ led by Supreme Court CJ David Maraga came after senior counsels wrote a letter protesting against upscaling court sessions, tribunals and registries.  Upscaling had been expected by some observers this week.

They said the decision on reopening was taken without widespread consultations with all interested parties and the public.

On Tuesday at a press conference, Maraja agreed with the lawyers that scheduling open-court hearings and requiring advocates and judicial officers to appear in person could jeopardise their health.

Video-conferencing will continue. It was instituted to keep judicial officers safe. 

The CJ said while it was prudent to upscale court activities, this is not the time.

“Both the bench, the bar and quite a number of litigants comprising many senior members who fall within the age bracket of 55 years, which is considered most vulnerable to Covid-19. Upscaling would only compromise their health," he said.

The CJ emphasised that courts will remain open through video conferencing but physically open only in rare and urgent cases..

The decision affects plea taking, urgent criminal hearings and filings of urgent matters and pleadings in civil cases.

Suspects in serious crimes will continue to be presented to the court for plea taking. Police, however, will continue to release minor offenders on bond or bail; otherwise, all suspects must be taken to court within 24 hours of arrest.

Regarding the filing of urgent cases, Maraga said all pleadings will be filed and served electronically, except in exceptional circumstances. 

He requested presiding judges and heads of court stations to meet with their stakeholders to determine which matters can be heard and determined remotely.

“They should also review their cases with a view to developing and issuing cause lists for remote hearing beginning next week,” the CJ  said.

Other matters including the delivery of judgments will be handled through video conferencing or via e-mail.

“It is wise that court proceedings be conducted remotely through increased use of technology since allowing courtroom interactions would be inimical to the interests of Kenyans as it would greatly endanger public safety,” Maraga said.

In its last meeting on April 15, the NCAJ called for upscaling court operations, considering the essential nature of judicial services and the growing backlog of cases countrywide.

But after a meeting on Monday morning, the council decided otherwise. 

Maraga said a number of judicial officers conduct their court sessions from the chambers, making it difficult to keep the required social distance.

He also observed that court activities involve the extensive exchange of paperwork from advocates’ offices, to registry staff and finally to the judicial officers. This means that the risk of accelerating the spread of the virus through courtroom activities is inordinately high.

The letter by the 18 senior counsels had urged the NCAJ not to upscale court sessions. 

They emphasised the need for proper guidance on how the surfaces in courtrooms will be treated and sanitised. They called the surfaces breeding grounds for the spread of the virus if an infected person is present.

“What modalities will be put in place in terms of sanitising the surfaces after each case has been handled by a judicial officer? There also has been no directive on how members of the public who have court cases will access court,” the letter read.

The counsels included Walter Amoko, Kenneth Kiplagat, Julius Kemboy, Neville Omollo, Chacha Odera, Roseline Esonga and Steve Luseno.

They also asked the CJ what mechanisms have been put in place to ensure contact tracing of all people who may have been exposed to a judicial officer who tests positive.

(Edited by V. Graham)