Access to justice and Covid-19 pandemic

In Summary

• Transmission of Covid-19, is largely through physical human contact and coming into contact with contaminated surfaces. 

Health systems world over are under extreme pressure to save lives.
Health systems world over are under extreme pressure to save lives.

Africa is yet to experience the full effect of the Covid-19 pandemic. Given the unique challenges prevalent in Africa, a pandemic of the scale witnessed in Europe and the United States would wipe out a significant number of Africa’s productive generation leading to severe economic impoverishment. Some economies could be crippled for a while.

Transmission of Covid-19, is largely through physical human contact and coming into contact with contaminated surfaces. The number of infected people is difficult to estimate with a huge percentage of those infected showing no symptoms. The WHO advisory to governments to put in place mechanisms to reduce physical human interaction under the slogan “testing, contact tracing/tracking and treating” was therefore timely.

Health systems world over are under extreme pressure to save lives. Africa’s health system is the least developed and already overburdened with several diseases outbreaks, infrastructural and efficiency challenges. Covid-19 has therefore put extreme pressure on medics and facilities with Kenya already struggling es with a short fall of human resources for health.

Judiciaries world over have scaled down their operations and are embracing new ways of facilitating access to justice, such as leveraging on technology. Dispensation of justice cannot be downplayed. The judicial systems, such as the courts have to be innovative and move from the rigid traditional way of handling cases. This therefore requires the various stakeholders to devise innovative ways to keep the system operational.

The Kenyan judiciary has consequent to the pandemic scaled down its operations. Practice directions were gazetted by the Hon. Chief Justice, David Maraga to ensure that courts continue operating while maintaining social distance in order to save lives.  The courts have leveraged the use of teleconference by use of Zoom, Skype, WhatsApp and a range of Information technology tools to ensure that the wheels of justice keep moving. Physical appearance has been reduced to nearly zero. Advocates no longer litigate physically in court as arguments are now done by way of submissions with judgments being delivered virtually. This has the effect of having a judgment with no means of executing the same (until the physical restrictions are lifted or the practice directions modified).

Strong arguments have been advanced that Kenyan courts should operate normally and legal services be classified as essential services. No doubt in whatever circumstances access to justice must be deemed as essential. In a normal court scenario, the presiding officer, the court prosecutor, the court assistant, the court orderly, the accused person, prison warder, children’s officer, probation officer, the complainant and the witnesses all have to be physically present in court for the case to proceed for hearing. A rough estimate here shows that at any one given time there will be a minimum of ten people in any one siting. This, as per the government directive may amount to a violation of the social distancing rule. The Kenyan courts currently are largely not spacious enough to accommodate ten people while maintaining the minimum social distance. This therefore poses a great health risk to all that would appear in court, noting that these actors will commute and converge from various communities. Normal operations therefore violate the WHO advisory to keep a safe distance.

The scaled down court operations have both a legal and economic impact to the Kenyan populace. The advocates may not be able to earn getting up fees and court appearance fees. People in remand will continue to wait for their cases to be heard and finalized. This has led to agitation for normal operations of the courts by some quarters of the bar. Arguments have been advanced that people aged 50 years and above are more vulnerable. This also applies to people with pre-existing conditions. The Kenyan high court, court of appeal and Supreme Court consist of vulnerable people in society. The bar on the other hand has senior counsels who are vulnerable and they need to be protected. A critical analysis of the situation at hand calls for a compromise that will save lives. This compromise is by embracing available technology and devising ways through the court users committees to ensure that court operations continue un-abated, albeit in a manner fully compliant requirements to manage the pandemic.

Given the apparent ease of human to human transmission of this virus and for the sake of preservation of human health and overall wellbeing (which is paramount) the way we do business has probably changed forever. As other equally critical sectors such as health care are getting ahead of the change, leveraging the opportunities of telemedicine to deliver critical services, the judiciary and all related sectors have go outside the traditional approaches for the sake of preservation of humanity.

Hellen Onkwani is a principal magistrate and the vice-secretary to the International Association of Women Judges Kenya Chapter (IAWJ-KC)