DIGITISED JUSTICE

My lord, can you hear me? How Covid-19 affected court users

Lawyer Arnold Ochieng said 98 per cent of online hearings consist of lawyers asking the judge whether he can see or hear them.

Kibera senior resident magistrate Renee Kitagwa hears a case in the open
OPEN-AIR JUSTICE: Kibera senior resident magistrate Renee Kitagwa hears a case in the open
Image: CLAUS MASIKA

A constitutional lawyer summed up the technical nightmare lawyers are facing trying to deal with cases online due to the Covid-19 pandemic.

Arnold Ochieng said 98 per cent of such sessions consist of lawyers asking the judge whether he can see them or hear them.

 “It is even confusing to my neighbours. They keep hearing me shouting, 'My Lord, can you hear me?' Or 'I can’t hear you, my Lord',” Ochieng said in a tweet that went viral.

Speaking to the Star, Ochieng said even though technology has enabled the hearing of cases from a distance, it has made lawyers' lives difficult.

He said when it comes to bulky documents, they have to scan them and email to the court for filing.

Sometimes these documents bounce back as they may be too large, meaning one has to compress at times a 1,000-page document into bits and send different attachments, which is tedious.

“The difficulty we are having is these documents are so bulky, we need to prepare them, paginate them, highlight the necessary paragraphs, commission-mark the exhibits, and so on," he says.

"When we mail them to the court, they have to print and produce them for the court file for the judge. And it is even hard to know if the end-product that has been placed before the judge is organised like we had filed them.”

As part of the emergency measures taken in response to the coronavirus outbreak, courts across the country were forced to scale down operations or to devise alternative ways of working. 

The Judiciary was used to manual processes since Independence and physical court attendance but the coronavirus pandemic forced it to fast-track adoption of technology to ensure social distancing.

Many courts went digital but it was particularly tough for court users and judicial officers in rural areas who endured power blackouts, poor internet connection and lack of equipment.

 In July, Chief Justice David Maraga launched an e-filing system that enables litigants to file and track their cases. The Judiciary also conducts virtual court sessions with prisoners through video link sessions for matters such as bail and plea-taking.

Maraga said digitisation of Judiciary services marked the singular most important step in harnessing technology as an integral part in dispensing judicial services to Kenyans.

 “The system has been designed, developed and implemented by our very own Judiciary's directorate of ICT. It has many advantages and is expected to significantly impact on the speed, accuracy and efficiency of service delivery,” he said.

However, the CJ acknowledged the challenges of poor internet connectivity and urged judges and litigants to try and get good connection to ensure services to Kenyans are not hampered.

“As we have said, we have no choice, we can’t go back. Ask your members to try their best and get stable internet connectivity,” he said.

The CJ decried the lack of adequate resources required to ensure judicial functions are not derailed and the automation of proceedings do not hit a snag.

At Milimani law courts in Nairobi, it was not easy for court users to operate as most of them were scared of contracting Covid-19.

There were strict measures set up by the Judiciary at the main entrance where only a few lawyers and court reporters were allowed to get in to reduce congestion.

They would undergo temperature screening and sanitised or washed their hands  before being are allowed in.

Court reporters have had a rough time due to technical issues as matters were conducted online and sometimes they would miss out on important cases.

Many challenges arose where a magistrate conducted matters in a tent outside the courts.

Reporters could not hear what the magistrate was saying, especially those who don’t shout, as the police and court orderlies ensured everybody observed social distancing.

This would mean a reporter would need to peruse the file after the court session and that would also depend on the court clerk’s mood.

In some of the courts, security would lock out reporters just to observe social distancing. Magistrates would opt to move to a larger courtroom so that reporters are accommodated.

At times, the lawyers get the links to the online court sessions very late, perhaps even 10 or 20 minutes to the hearing, and they need to set up their computers and gadgets so they can join the proceedings on time.

Moreover, there are inconsistencies in the applications used by the Judiciary because some divisions are using Microsoft meetings, others Zoom and others Skype.

 In most cases, clients cannot follow the proceedings remotely because they don’t have the link.

In November, Chief Registrar Anne Amadi said the Judiciary is tackling matters arising in various courts, especially those in rural areas.

Edited by Henry Makori