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Challenges of accessing justice in Covid-19 times

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Malindi Chief Magistrate Julie Oseko (centre) conducts a court session at Malindi Law Courts via video conferencing. PHOTO | CHARLES LWANGA | NMG

As soon as Kenya confirmed its first Coronavirus patient mid March, the Judiciary took measures to ensure delivery of justice for all countrywide continued despite the pandemic. While elsewhere in the continent whole justice systems were being shut down, the decision to keep the country’s wheels of justice turning was lauded

Now well into the third month of implementation of such measures as online trials, open-air court sessions and reduction of bail terms to free up jails, challenges are emerging with the poor being the most affected.

“Covid-19 (curb measures) present a big challenge as they ignore what had become a common slogan; that no one should be left behind,” says Beatrice Njeri, a senior legal officer at the Centre for Rights Education and Awareness.

Speaking during a recent Webinar organised by the International Commission of Jurists and the lawyers hub, Ms Njeri was referring to the fact that in courts litigants are represented by lawyers and others do it themselves.

It is this latter group that largely comprises the poor who can’t afford to hire lawyers that is at greater risk of being left behind during this crisis. While lawyers have been logging on Zoom to represent their clients, Ms Njeri reckons that that is a luxury the poor can’t afford especially with recent studies showing they are the most economically battered by the pandemic.

Fear of being left behind

Ms Njeri adds that digital illiteracy is also a big factor limiting access to justice raising fear that the marginalised and vulnerable groups of litigants are being left behind and might catch up considering that no one knows when the coronavirus pandemic will come to an end.

Besides affecting litigants in discriminatory ways, the Judicial measures also make it difficult to prosecute such cases as relating to children, family disputes, property, child custody, succession, defilement, rape and gender based violence.

Ms Njeri notes that cognisant of these challenges, perpetrators and aggressors are taking advantage of the pandemic to continue with their unlawful acts. And when some victims go to report at police stations, Ms Njeri says they are turned away and if they are lucky to have their cases recorded, the accused are given reduced bond terms despite the gravity of their alleged offenses, simply because there are clear instructions on reducing the number of suspects in police cells and prisons to curb spread of the virus.

Slap on the other cheek

The turning away of victims from police stations has become the proverbial slap on the other cheek, particularly for victims of gender based violence who are now summarily told that their matters can simply be resolved at home with their perpetrators in the same environment of abuse. Such measures coupled with the travel restrictions have consequently seen few victims pursue persecutions of their abusers.

Considering that most cases that relate to children especially on sexual violence are usually heard during holidays to minimise disrupting their learning since they are required to be physically present in court, the Covid-19 measures meant that those that had been slated for April were postponed indefinitely.

“Children courts have a high number of litigants from far flung areas including slums and rural places who can’t access virtual platforms because now their guardians are thinking more about bread and butter issues, not accessing justice through Zoom,” says Ms Njeri.

But it is not just the general public that is facing the challenges. Before Covid-19, legal practitioners could go to court registries and check on progress of cases, access judicial officers as well as court clerks.

Today however, only the most urgent pleas are being taken before magistrates courts while most proceedings are conducted through various online platforms such as Zoom, Microsoft Teams, Google Meet, Skype and Facebook at the High Court, Court of Appeal and the Supreme Court.

Locked out lot

Court orders are also now served via WhatsApp and rulings and judgments issued via emails besides filing of urgent matters on email too.

According to Pan-African Lawyers Union executive director Don Deya, the public’s right to information as well as public participation has been affected by the pandemic when it comes to access of justice.

He explains that Kenyans accessed quality information in the court registries, but now those who cannot access the digital platform for reasons such as being expensive or lacking internet ready devices have been locked out.

While he commends the Judiciary for taking measures to ease access to justice during this crisis earlier than countries such as South Africa, Nigeria among others in the continent, he says there is need for review as many judicial officers besides lawyers and judges are frustrated.

“Assessing of filing fees is taking longer than the normal process, filing cases online is a challenge in some areas and rapidly converting criminal procedures online has not been easy. We seem to be in early stages of making the new normal work, therefore individual acts of excellence count as much as institutional reforms, policy and guidelines,” says Mr Deya.

High Court judge David Majanja says the Judiciary should not be solely blamed for current challenges since no one planned for Covid-19.

Justice Majanja acknowledges the challenges pointing out that the Judiciary had to comply with the government directives on working from home as well as those by the Ministry of Health, hence had no choice but to scale down its operations to protect its staff as well as the public.

The judge says the institution welcomes proposals from stakeholders on how it can improve access to justice during this pandemic and beyond.

“Access to justice has always been a problem in this country, but in the last 15-20 years, the Judiciary has been investing on improving it even though Covid-19 has brought other challenges,” notes Justice Majanja.

Judiciary priorities

He says judges and magistrates had been focused on de-congesting prisons between March 15 to mid-April hence dealt with judgments for those in remand and the ones who had appealed against their sentences.

He adds those suspects who had been given bond terms that were high had to be revised so as to allow a big number to get out of prisons. It was only inevitable and only prudent that non-urgent hearings be indefinitely postponed given the challenges presented by travel restrictions, he says.

Justice Majanja points out that embarking on remote justice, which is now commonly referred to as Zoom trial has its own challenges ranging from inadequate facilities in courts, remand and among lawyers for video conferencing, issues of connectivity in many parts of the country to reistance by lawyers as well as litigants to online proceedings.

“In some cases, especially in civil matters, we are told that lawyers claim they have not been paid hence cannot afford virtual sessions for their matters even if they are scheduled. Insisting on online proceedings alone has its serious effects as there are some who are indigent,” says Justice Majanja.

And while the Judiciary boasts issuing at least 7,000 rulings and judgments that were pending through the digital platforms, a new backlog has been created inevitably by the high number of cases postponed to later dates.

Justice Majanja explains that back log is inevitable since for succession cases for instance, usually involve most people who are elderly, old and live in faraway places hence their health has to be ultimately protected as they cannot be subjected to attending physical courts or even online ones due to digital illiteracy.

No going back

When the time comes to deal with the case backlog, Justice Majanja says the online platforms will be among the choices post-Covid-19, noting that most divisions of the High Court, the Employment & Labour Relations Court and the Court of Appeal are already adjusting to with the new ways of conducting proceedings online.

The Supreme Court is fully operational online while the commercial court has had very few technical challenges compared to other courts.

The judge also points out that magistrates courts as well as rent tribunal, owing to high number of evictions, are working and that there are deliberate efforts to have defilement cases resume either through physical appearances or online sessions.

“The Judiciary is working but is hampered with many challenges considering current circumstances we find ourselves in. We have now started creating requests for virtual mediation as there have been 58 referrals and eight cases have been settled so far, we are still looking at how to roll this out,” says Justice Majanja.

Case back log

Considering that Judiciary has in the recent past been subjected to budgetary cuts, it hopes that owing to the pandemic, it will get emergency funding to improve its technology facilities so as to set up virtual court rooms where the public will be able to access justice without travelling long distances.

While announcing the resumption of open court sessions, Chief Justice David Maraga pointed out that since the downscaling of court operations following the emergence of the pandemic, as at May 31, the Environment and Land Court with 33 judges had a backlog of 16,457 cases, the Court of Appeal with 15 had 7,315 and the Employment & Labour Relations court with 12 had 13,197 cases.

But with challenges the Judiciary is facing in this pandemic, Kenya Institute for Public Policy Research & Analysis chair Linda Musumba says they present an opportunity to consider informal justice systems which rely on the strength of cultures as an alternative to court room proceedings.

However, she warns that research has to be done to establish efficiency of the informal justice set ups and whether they would meet the constitutional criteria considering that most cultures are patriarchal.

She believes that informal justice systems have the capacity to boost efficiency of the formal one since there are cases in court which have collapsed because the issues were resolved quietly, informally.

“The impact of Covid-19 on the Judiciary has shown stresses in challenges of the justice sphere, while the informal system cannot clearly solve some of the issues, the question is how can they be blended to the formal one or upgraded,” poses Dr Musumba.

She also says the informal set ups will see to it that people get their disputes resolved without necessarily being represented by a lawyer and gives the example of Rwanda’s gacaca.

Alternative system

Gacaca is a kind of informal community court that combines effort with the Judiciary in Rwanda that was used to try genocide suspects and has been largely viewed as a successful model on restoring justice in local set ups.

“As Covid-19 has affected formal system, the informal has continued. It will be useful for research to be done to get the level of satisfaction with this on a sector that is giving solutions then we can be able to get a win-win on both sides,” adds Dr Musumba.

And since the biggest lesson Covid-19 has taught many is to adapt technology into normal business, she advises that it could as well provide solutions to some existing challenges like police loading their cases and OBs digitally, use different applications to do various things like paying court fees etc.

She also has some advice for lawyers who feel that virtual hearings and informal courts are a threat to their profession.

“Will this new ways leave lawyers out? No. Other elements of justice are ongoing, all they need to do is to build an appetite to see how these new areas can sustain them professionally especially those who are new to the occupation,” says Dr Musumba.