• With video links, Kenyans don’t have to incur costs travelling to Nairobi for a case
• However, right of fair trial may suffer due to compromised cross-examination and evidence production
Image: OZONE
To minimise the spread of Covid-19, the judiciary adopted the use of technology in the running of its affairs. This was implemented by the National Council on Administration of Justice.
Close to two months after the directive, albeit with hitches and challenges, the judiciary has delivered over 7,000 judgements digitally.
Many lawyers have embraced the new system of operation, saying even though there are challenges, they welcome change. Others have insisted the judiciary should go back to the old system.
Lawyer Steve Ogolla says it will not be possible to go back to business as usual because innovating to improve access to justice is a concern that precedes Covid-19.
“Online hearing of cases, especially cases that do not require witnesses and can be dispensed with by written submission, where only lawyers are required to be in attendance, can actually be done online,” Ogolla said.
He says they were not bold enough to try it because there was no crisis, but the judiciary has been digitising court records. It may have stalled because of lack of finances, but the conversation was there before the pandemic.
“The Chief Justice gazetted electronic case management 2020, and in those directions, there are those that will endure forever, which means we will not go back 100 per cent to how things were before,” Ogolla says.
The lawyer says it will now be a new normal, for instance, if you are filing a case, to provide an email and telephone contacts unlike before.
Another advantage of technology in dispensing justice is Kenyans don’t have to incur extra costs travelling to Nairobi to participate in their case as they can use video links to attend court.
He argues that since the infrastructure is already there, it should not be collapsed because we don’t know when we will have another Covid-like crisis.
THE FLIPSIDE
However, Ogolla says it’s not possible to completely digitise the judicial process. He cites aspects such as the production of evidence and the cross-examination of witnesses, which require physical presence.
“If I'm cross-examining a witness, the court needs to assess even the posture of a witness as part of their believability,” he says.
Ogolla says the right to fair trial and hearing may be compromised if you ask questions to a witness who is not physically present in court and refer to documents they can’t see.
He says in the interim, there should be a balance of criminal cases that proceed to hearing, or all other cases that require witnesses must be in open court, but even if a matter is in open court, online streaming must continue.
Ogolla says even post Covid-19, rulings and judgments can be done through emails, as it will save a lot of time for litigants, just like they are doing now.
Interestingly, Ogolla says lawyers might be a stumbling block to the use of the electronic system because it has affected how they charge fees.
“When you are drawing a fee note, physical service of documents, court attendance and filing of documents are things that form part of legal fees. Lawyers will begin to lose some money and they are likely to resist because of that,” Ogolla says.
Ogolla says to bring everyone on board, there should be ways to cushion lawyers from losing money without compromising the broadening of access to justice.
Lawyer Annita Masaki says even though she is not opposed to technology, she prefers physical court hearings.
“On the online platform, you are not given enough time to argue your case,” she says.
Also, unlike in physical court, where all of you can be heard, in online hearing, not all of you will be heard. Mostly, you will be told to go do written submissions, Masaki says.
According to an article by Strathmore University Centre for Intellectual Property and Information Technology Law, the use of technology in the judiciary was often met with resistance, causing the process to stall.
“As the judicial system continues to embrace a more technological-driven court system as the new norm in the delivery and access of justice,” the article states, “we curiously wait to see whether this new norm will prompt an improvement in efficiency, fairness and transparency in the processing of cases.”
Edited by T Jalio