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Covid-19: e-justice hurdles and perspectives

An effective justice system is essential for the administration of justice as it promotes access to justice even to the marginalized section of society.

The World Health Organisation (WHO) on March 11, 2020 declared the Covid-19 as a pandemic, hence, a public health emergency. Following the WHO’s declaration, President Yoweri Kaguta Tibuhaburwa Museveni on March 18, 2020 imposed a lockdown on places of worship (churches and mosques), schools, tertiary institutions and universities.

It was later extended to public and private transport, non-essential businesses and the movement of non-essential personnel shortly. The lockdown was later lifted in phases but the entertainment places and institution of learning remain under lock. The proliferation of the disease has consequently changed how normal business is conducted, including adjudication of cases in courts of law.

This has negatively impacted on the access to justice. Meanwhile, digital technology advances have offered opportunities for increased access to justice through e-justice such as e-filing and e-case hearing and judgment/ruling opportunities during the Covid-19.

The partial lifting of the lockdown has made institutions of learning and entertainment places to adopt a new normal working remotely. It is not certain as to when we shall return to normalcy since every day the number of persons contracting and dying from Covid-19 is rising.

According to Legal Aid Service Provider Network (LASPNET), (2015), access to justice connotes a process which makes it possible for people to claim and obtain justice remedies through formal or informal institutions of justice in accordance with the human rights standards.

It entails an examination of how individuals, groups and communities realize de facto justice from the enforcement of substantive law and the quality of justice administered by the justice system. Access to justice entails elements such as contact, entry and use of the justice delivery system.

Access to justice serves to focus on two basic purposes of the legal system. It is a system by which people may vindicate their rights and/or resolve their disputes under the general auspices of the state. First, the system must be equally accessible to all and, second, it must lead to results that are individually and socially just.

The United Nations Development Programme (UNDP) has defined access to justice as the ability of people to seek and obtain a remedy through formal or informal institutions of justice, and in conformity with human rights standards. E-justice is the use of digital technology to improve access of citizens to justice and the effective judicial action dispute settlement or the imposition of (criminal) sanctions.

Delays in the resolution of court cases and issuing judicial decisions particularly in light of the ministry of Health (MoH) standard operating procedures (SOPs) such as social distancing, wearing face masks and regular sanitizing have a range of adverse consequences on access to justice.

Meanwhile, the apparent inability of the judiciary to deliver justice promptly and efficiently in light of the Covid-19 pandemic can cause lack of confidence in such state institutions, undermining the social and political fabric and a state’s international standing.

At a national level, inadequate access to the justice system may deter access to legal remedies such as enjoyment of personal liberties and freedom from torture. It has long been recognized that ‘justice should not only be done but also manifestly and undoubtedly be seen to be done.’

Although Covid-19 is a new disease, many of the problems it has caused, for example, in the criminal justice system are similar to those that were experienced when natural calamities struck elsewhere. For example, hurricanes such as Katrina, hit the eastern coast of the United States in August 2015.

It was one of the deadliest hurricanes that ever hit the United States causing an estimated 1,833 deaths from the flooding that followed in late August 2015, with million others left homeless along the Gulf Coast and in New Orleans. In the aftermath of this hurricane, several jails were evacuated, causing overcrowding in some prisons where the inmates were transferred.

Meanwhile, regular law enforcement such as arrests continued, even as many courts, including the Louisiana Supreme court, had closed for extended periods. The situation left advocates scrambling for release of pre-trial detainees, low-level offenders, older, more vulnerable offenders, while also coping with personal losses, office closures and other impacts
of the storm.

The judiciary was caught unprepared to handle such crises. To reduce the risk of the Covid-19 spreading inside the prisons, some countries released certain categories of prisoners.

To observe social distancing measures, the Supreme Court of India, for example, directed the release on parole of prisoners charged with offences carrying jail terms of up to seven years, a four-to-six week reduction of the sentences. The French Justice minister issued similar orders to attempt to observe social distancing rules in the prisons.

In Uganda, various laws and regulations govern the use of ICTs. Some of the laws are merely transactional while others are for verification and authenticity of identity and signatures. Few laws regulate procedures of courts in the adjudication process which include Uganda Communications Act, 2013, the Computer Misuse Act, 2011, the Electronic Transactions Signatures Act, 2011, the Electronic Transactions Act 2011, the Judicature (Visual-Audio Link) Rules, 2016, the Data Protection and Privacy Act 2019, and the Constitution (Integration of the ICT into Adjudication Processes for the Courts of Judicature) (Practice) Directions, 2019.

These laws provide, among others, that; “in every judicial proceeding, the court and the parties to the case may, as much as possible, use technology to expedite proceedings and make them more efficient and effective.”

The technology referred to includes e-filing and service of court documents electronically; digital display devices; real-time transcript devices; video and audio conferencing; and computers. The court may direct the parties to use information technology in appropriate cases.

The challenge, however, lies with not only the availability but also the reliability of network connectivity which still poses headaches to e-justice in Uganda. The Directions (ICT) in Uganda provide for e-filing; however, it does not specify limits of the document size (storage).

Litigants and advocates tend to file very voluminous documents specifically in matters concerning constitutional interpretation and appeals to the High court, Court of Appeal, and Supreme court. When the document size is not specified, then e-filing can be constrained and consequently affect the application of e-justice.

Despite the enactment of the Constitution (Integration of the ICT into Adjudication Processes for the Courts of Judicature) (Practice) Directions, service of summons and exchange of pleadings in Uganda is still manually-operated and in hard form. This is a serious setback to e-service and subsequently e-justice.

This is a critical area of concern that could halt the progress already registered towards the adoption and rolling-out of e-justice in Uganda’s judiciary. The Electronic Transactions Signatures Act applies to signatures concerning electronic transactions; it has no business with court pleadings which are critical in e-filing.

This can, however, be applied together with the Constitution (Integration of the ICT into Adjudication Processes for the Courts of Judicature) (Practice) Directions to promote e-filing. Despite the presence of these directions, the filing system in Uganda is still manual, posing a big challenge to the application of e-justice during the Covid-19 pandemic and perhaps other natural calamities.

Given the overcrowding in prisons and in light of the Covid-19 crisis, President Museveni invoked the prerogative of mercy granted under article 121(4) of the Constitution and pardoned over 800 prisoners. These included the elderly, those above 54 years, pregnant women, breastfeeding mothers, terminally sick prisoners, and petty offenders who had completed three-quarters of their sentences.

Prerogative of mercy is an executive process that comes after the judiciary has concluded its duties, due process and sentencing. Chaired by the Attorney General and six other reputable members of the public, the committee of prerogative of mercy receives the names of prisoners who qualify for clemency from the Commissioner for Prisons and forwards them to the president for approval.

The pandemic has led to severe restrictions on normal life and access to social justice. Whereas some of the prohibitions to public gatherings may have contained the spread of the disease, other restrictions such as curfews, prohibitions on distribution of food to the starving citizens did not only amount to social injustice but also led to the brutality of security forces while enforcing the presidential directives.

Worst still, the victims of the police brutality have not accessed justice because of the difficulties of legal redress due to inadequate digital options. Prospects for e-justice exist in Uganda as digital technology has already been introduced in the judiciary.

Besides, there exists an enabling legal framework notwithstanding that most courts have not emphasized this. Sorting out digital technology hurdles (unreliable internet connectivity), and establishing a strong ICT infrastructure in the judiciary need fast-tracking. Legal practitioners too need to embrace the new normal and acquire ICT skills in modern practice.

The practice of carrying physical sacks of documents and files in courts just to hear a simple or contentious matter is long gone. E-filing, e-service, e-hearings, e-payment of court and other legal fees and e-delivery of court decisions is the new normal.

The attempts to provide access to justice during the restrictions in normal court business provides hope that Uganda can apply e-justice during natural calamities and pandemics. However, the process should be expedited as justice delayed has already been described as bad justice or justice denied.

Areas that need focus are: the judiciary should fast-track digitalization of the court premises. It is, unfortunate that currently most judicial officers line up at the Chief Magistrate court of Kampala at Buganda Road merely to have access to live video conferencing and leave their court premises wherever they are situated.

There’s need to train judicial officers and personnel to embrace digital technology, some few still operate under the BBC (Born Before Computers) era and are hesitant to adopt the new normal.

There’s need to secure funds to purchase modern and effective digital technology equipment, and assist litigants and officers of the court to embrace e-justice applications to promote access to justice during natural calamities and pandemics such as the Covid-19.

We must accept that the world has changed. Covid-19 and other pandemics and natural calamities have awakened us and justified e-justice than before. We either embrace the change or become irrelevant. Justice delayed is bad justice or justice denied.

The author is a Head, Department of Law Reporting, Research and Law Reform, LDC and a member of the Law Reform Committee, Uganda Law Society

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