Why courts are unfit for use during Covid-19

Built during the colonial times, most courtrooms are outdated, not spacious and lack proper ventilation, which makes it difficult to implement the two-metre social distancing rule to curb the spread of Covid-19.

Oftentimes the courtrooms, especially in Nairobi, are not well lit and are stuffy as some don’t even have proper windows to allow free flow of fresh air.

Courts usually get thousands of people visiting daily, which makes crowd control an uphill task.

No doubt the judiciary has to come up with a way to upscale hearings, but at the same time put into consideration the safety of court users.

A report prepared by the Ministry of Health in relation to Milimani court is categorical that some courtrooms should not be used at all in their current status, until their natural lighting and ventilation is adequately provided for.

For example, court room number 7, together with children prosecution registry, is not appropriate to serve its purpose because of both size and ventilation.

“The court management is encouraged to come up with comprehensive structural maintenance works to specifically address the serious natural lighting deficits in all courtrooms,” the Health officials said.

The courts generally are in a dilapidated state, with some having leaking roofs and others broken doors.

For example, court room number 19, though adequately ventilated, had pools of stagnant rainwater on the floor, defective roof and its ceiling was found sagging during the inspection time.

“Increase the size of openable window space at police prosecution registry to allow adequate flow of fresh air into the room to not only reduce the risk of Covid-19 but also other respiratory communicable infections, such as tuberculosis,” the report reads in part.

CHANGES RECOMMENDED

The report seen by the Star further discourages the use of magistrates' and judges’ chambers for court proceedings because of inadequacy in size and ventilation.

Customers visiting the courts should be screened so only those who must enter the building are allowed access, it says.

Also recommended is rearrangement of court registries, offices to accommodate the specific number of people specified during inspection and in a pattern that was agreed upon. In some courtrooms, the officers said it can accommodate 12 people, while in others, it can only accommodate three.

The judiciary is expected to maintain a daily register of people who access each courtroom, office and registry on a daily basis. This is for ease of contact tracing in the event one tests positive in court.

Court leadership was advised to embrace modern technology of conducting court proceedings through Skype, Zoom or video conferencing during this period of Covid-19 and in future.

Also found wanting and discouraged is the use of shared microphones, which is what happens in court hearings. Instead, the report recommends the use of individualised pocket microphones and strict observation of two-metre social distancing rule.

All courtrooms will also be regularly disinfected before, mid and after daily court proceedings.

“Further, you are highly encouraged to avoid use of the said courts by the general public during this Covid-19 pandemic period to avoid cross-infection,” the report adds.

"In this case, it might be important that only advocates whose cases are active on the floor at that given time should be in and to observe the two-metre social distancing rule."

NO PHYSICAL HEARINGS

For the Court of Appeal, there will be no physical hearings because it has been unanimously agreed that remote hearings are the best way to go.

The Court Users' Committee sat on June 12 and agreed that the Court of Appeal has done a commendable job hearing all its cases virtually without a single adjournment ever since the Covid-19 pandemic started and recommended a continuation of the same.

Speaking to the Star, Court of Appeal president Justice William Ouko said his court hears 12 cases daily and 48 cases weekly.

Most importantly, the Court of Appeal has been able to link all its courts in Nairobi, Mombasa, Eldoret, Kisumu and Nakuru virtually using the GoToMeeting platform, which allows up to 52 people to join.

“As Court of Appeal, we subscribed to the platform and we give advocates the link so they can join in with their clients, who will follow the case,” Ouko said.

He said the choice of that particular platform as opposed to Zoom or Microsoft Teams is due to its stability and the number of people it allows to join in.

“We don’t have the problem of 'My lord, can you hear me? My lord, can you see me'?”

Only last week, the court had a UK-based participant attend a court hearing.

According to a source, a Ministry of Health report on the Court of Appeal found poor ventilation and the sitting in benches of three and five as working against the regulations to curb the spread of Covid-19.

Usually, appeal judges on the bench have to put their heads together to consult on different issues in a case before they communicate or make a decision in a case.

“For example, sometimes parties ask for adjournment and the judges have to move closer to each other and consult before giving a verdict. That does not allow for social distancing because if one of them has Covid-19, he or she can easily transmit to others,” said the source, who did not want to be named.

DIGITAL FILING

Lawyers have in the past pushed for the upscaling of court sittings, saying shutting courts has denied justice to the common man.

The main concern for lawyers was the worrying increase in the backlog of cases since March.

Bowing to pressure, Chief Justice David Maraga recently announced that courts will upscale sittings.

And only last Friday, 11 people at Mombasa courts tested positive for Covid-19, forcing the judiciary to shut the courts.

Six days ago, Chief Registrar of Judiciary Anne Amadi announced that all filings in all courts in Nairobi will be done exclusively through electronic filing from July 1.

Under the new electronic system, all lawyers, police, DPP and members of the public are required to register themselves through a portal to log into judiciary system. The portal is on https://efiling.court.go.ke.

After logging in, one is expected to upload documents and also assess court fees.

Subsequently, one has to submit the files to the registry online for the matter to be filed and placed before a judge for hearing.

“The system is already open for use and the public is encouraged to familiarise themselves with it prior to the official launch,” said the chief registrar.

Amadi said this is in line with the judiciary’s effort to increase the use of technology in all its functions to increase efficiency.

“The courts are already increasingly using ICT platforms to conduct hearings and deliver judgment and rulings.”