By Florence Ogonjo

Introduction.

As Kenya joins the rest of the world in fighting the novel coronavirus (Covid-19) , various measures have been introduced affecting our day to day lives both socially and economically . The past three weeks have seen the Kenyan Government through presidential directives and press statements from the ministry of health take measures to contain and minimize the spread of the highly infectious virus. Various government institutions, organizations and companies that serve huge populations of Kenyans have been forced to either completely shut down and resort to working from home.

On 15th March 2020, President Uhuru Kenyatta through a press statement instituted measures aimed at mitigating the spread of the virus among which included a directive instructing government offices , businesses and companies to allow employees where possible to work from home with the exception of employees working in critical and essential services.

The judicial system in Kenya is key in the dispensation of justice, handling numerous cases from civil to criminal on a daily basis services of which are primarily run on face to face interactions ^[1]. Chief Justice David Maraga in addressing the situation released a press statement with directives on the Judiciary’s position in mitigating COVID -19. The press statement covered administrative issues among which included the scaling down of court activities throughout the country as well as the suspension of all appeals , hearings and mentions in criminal and civil cases in all courts countrywide.

As the number of COVId-19 infections increased in the country more stringent measures were issued by the government through the  Ministry of Health . On 19th March, the National Council on the Administration of Justice (NCAJ)^[2] announced further measures  to be taken , among them included directions advising advocates to adopt e-filing in the High Court Commercial and Tax Division as well as the Chief Magistrate’s Commercial Court to avoid visiting the courts. Judges were consequently advised to consider electronic delivery of ruling, where appropriate.^[3]

It has been over a month since these directives were given. While the entire country continues to battle the fight against the virus by adhering to the government directives of staying home and social distancing , the Judiciary on its end has had to embrace a court system founded in technology to keep up with its responsibility of ensuring  access to justice. This blog post takes a look at the impact COVID -19 has had in propelling the Judiciary to adopt the Electronic Case Management System.

Electronic Case Management. (E-Case Management)

On 20th March 2020 the Chief justice gazetted practice directions on electronic case management, necessitated by an earlier directive to members of the judiciary to work from home . This directive prompted a need to assess how best the judicial service system will still keep running while adhering to the necessary directives of social distancing and staying home.

Electronic case management is the use of information and communication technologies (ICTs) to support and automated case management within courts and can be used at different stages of the court processing systems. ^[4] With the judiciary being forced to finally transition to a technologically based court system , it was important that both the users being the judicial staff, judges  acting parties and the public to understand how the court system would work through technology.

The Electronic Case  Management Practice Directions 2020  serve as a guide integrating ICT in judicial proceedings and specifically for ,^[5]

• electronic filing and electronic service of court documents
• electronic case search
• electronic diary
• electronic case tracking system
• electronic payment and receipting
• electronic signature and electronic stamping
• exchange of electronic documents, including pleadings and statements
• use of technology in case registration and digital recording of proceedings for expeditious resolution of cases.

The practice directions apply to all judicial proceedings instituted on or after the coming into force of the practice directions, cases filed prior to the commencement of the practice directions could be converted into electronic cases through an application to the court. ^[6]

The  directions provide details  to practicing advocates and acting parties on the process of registering electronic transactions, accessing the judicial web portal in use and how to record all required particulars that need to be captured throughout the registration process.

Further guidance is given on the process of e-filing, electronic service of documents, timelines for service under the e-filing system which notably  remains governed by the civil procedure rules , the electronic exchange of court documents , electronic payment of filing fees , electronic receipting , acceptable forms of electronic signatures highlighting how to handle documents signed non electronically and the restricted access to certain documents on the system’s dashboard.

The practice directions appear to mostly give guidance on the technicalities of integrating technology into the court system. The most defining aspect of any court is the hearing process, both in civil and criminal matters. Electronic case management introduces and allows the use of video conferencing as a means to hearing matters which during this time appears to be the only available avenue in ensuring access to justice.

The practice directions provide for the use of technology in expediting court proceedings to make them more efficient, technology in this context is used to refer to among others the use of video and audio conferencing.  ^[7]

Impact of the Operationalised Practice Directions.

Since the coming into force of the practice directions, various courts countrywide have embraced holding hearings through video and audio conferencing. Judges are reported to have handled at least 203 cases through video conferencing with 85% of the 140 court stations being adequately facilitated with ICT infrastructure and internet connectivity. ^[8]

The delivery of judgments and rulings are also being facilitated through online platforms. Where judgments or rulings were originally read out in open court they will now be delivered through video link. The court of appeal for instance delivered its first ever judgments via video link. On 3rd April 2020, Justice Hannah Okwengu delivered judgments and rulings on 18 criminal matters. ^[9]

The judiciary has further set up a well detailed structure through its website as well as the Kenya Law Reports website with  lists of the various court divisions providing links to access Rulings and judgments to be delivered via video link and email .

Electronic case management has been perceived to have positive effects on courts by providing a reliable administration which has improved the tracking of  cases introducing improvements in the processing of instituted cases, enhancing efficiency , transparency and better accountability.  ^[10]

The Kenyan judicial system has over the years been marred with inefficiency particularly in the processing of cases . It has however been taking numerous strides in addressing the matter, reporting an improvement late last year with the number of 110,000 pending cases being reduced to 15,000. Even with this drastic improvement, sighting inadequate staffing the chief justice reiterated that more needed to be done. ^[11]

The electronic case management system is designed to address fairness and promptness in accessing justice . Fairness in this context is best explained through procedural justice which concerns the fairness, consistency and transparency in processing of cases whereas promptness is best explained through the concept of procedural justice which ensures that justice is done at reasonable costs to the parties and the court within reasonable time and without abnormal delay.^[12]

This period will be quite informative to the judiciary as to the effectiveness of the Practice directions and more specifically, whether electronic case management yields the results expected of an improved judicial system where access to justice is concerned.

Conclusion

Previous efforts to develop an electronic case management  system in the judiciary were often met with resistance causing the process to stall.^[13] It is only in 2018 that Chief Justice launched the use of video conferencing in courts running the pilot program with 15 judges and 5 magistrates.^[14]

The COVID-19  pandemic has created a new wave in the use of technology causing various institutions to consider how best they can integrate technology into their day to day functions . The Kenyan judicial system has not been left behind in this wave.

As the judicial system continues to embrace a more technologically driven court system as the new norm in the delivery and access of justice, we curiously wait to see whether this new norm will prompt an improvement in efficiency, fairness and transparency in the processing of cases. Notably , the Judiciary will now have to keenly address the wider scope of data protection, security of systems used, digital literacy and other issues as it continues to  welcome technological advancements within the justice system . To fully realise a functional judiciary built on technology, the judiciary must welcome the collaboration of relevant stakeholders such as the Law Society of Kenya, access to justice NGOs, litigants, public prosecutors and the public to fully realise a fair, transparent and effective  e-court system.

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^[1] Tribunals also form an integral part of the judicial system more so as a prefered alternative to providing affordable access to justice . Tribunals were equally affected by the directive.

^[2] The National Council on Administration of Justice (NCAJ ) is an ad hoc committee appointed on March 15, 2020, consisting of the major players in the justice sector. The committee was established to monitor the Coronavirus situation and advise the NCAJ.

Members are drawn from the Judiciary, Office of the Attorney General, Police, Office of the Director of Public Prosecutions (ODPP), Kenya Prisons Service, Law Society of Kenya (LSK), Probation and Aftercare Service (PACS) and Ethics and Anti-Corruption Commission (EACC) among others.

^[3] Justice Weldon Korir , through a petition120 of 2020,  filed by the Law Society of Kenya  made a ruling directing the C.S  Ministry of Interior to amend the schedule of the  Public Order (State Curfew), 2020 to include legal services as essential services. The ruling implies that the NCAJ will re-open the courts while possibly maintaining its directive on the continued use of electronic case management.

^[4] Erwin J. Rooze ‘Differentiated Use of Electronic Case Management Systems.’ (2010), IJCA<https://www.iacajournal.org/articles/abstract/10.18352/ijca.53/>

^[5] Practice Direction 6

^[6] Commencement clause , Electronic Case Management Practice Directions 2020

^[7] Practice direction 6(3) underscores technology to include , e-filing, e-service of documents, digital display devices,  real time transcript devices, digital import devices and computers in the court.

^[8]Jillo Kadida, ‘Judiciary Hears 203 Cases Via Video Conferencing’ The Star (1 April 2020) <https://www.the-star.co.ke/news/2020-04-01-judiciary-hears-203-cases-via-video-conferencing/>

^[9]‘Court of Appeal Delivers Judgments Via Skype.’ Citizen Digital ( 3 April 2020) <https://citizentv.co.ke/news/court-of-appeal-delivers-judgments-via-skype-328896/>

^[10]  Erwin J. Rooze ‘Differentiated Use of Electronic Case Management Systems.’ (2010), IJCA<<https://www.iacajournal.org/articles/abstract/10.18352/ijca.53/>>

^[11] Blame Case Backlog on Shortage of Court Staff’ Daily Nation (17 September 2019)

<https://www.nation.co.ke/oped/editorial/Blame-case-backlog-on-shortage-of-court-staff/440804-5275868-ntd2rwz/index.html>

^[12]  Erwin J. Rooze ‘Differentiated Use of Electronic Case Management Systems.’ (2010), IJCA<https://www.iacajournal.org/articles/abstract/10.18352/ijca.53/>

^[13]Maya Gainer,  Transforming the Courts : Judicial Sector Reforms In Kenya 2011-2015.’

(Innovations For Successful Societies) <https://successfulsocieties.princeton.edu/publications/transforming-courts-judicial-sector-reforms-kenya>

^[14]Jillo Kadida, ‘Judiciary Hears 203 Cases Via Video Conferencing’ The Star (1 April 2020) <https://www.the-star.co.ke/news/2020-04-01-judiciary-hears-203-cases-via-video-conferencing/>