A VIEW FROM THE BENCH: ACCESS TO JUSTICE AND THE COVID-19 PANDEMIC IN KENYA
*By Hellen Onkwani
Principal Magistrate, Kenya
COVID-19 was officially declared a global pandemic by the WHO in March, 2020. Due to the uniqueness of this pandemic, measures have been put in place to contain it as scientist work around the clock to find a vaccine. Governments have put in place measures to limit transmission and ensure public safety by reducing human contact. Measures that have been criticized to be extreme include lockdown, curfews and some social distancing measures that appear to be impracticable in densely populated settlements. In Kenya, all government entities are required to comply with the government directives to keep a safe distance between individuals.
Judiciaries around the world have scaled down their operations and are embracing innovative ways of facilitating access to justice, by leveraging technology. Dispensation of justice cannot be downplayed at this critical time, and despite the pandemic, the wheels of justice must continue running. The wheels of justice have to take a different tangent and adapt to the exigencies of the changing environment. 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. In Kenya, the top decision-making organ is the National Council on Administration (NCAJ), consisting of representatives from all government agencies concerned with policy making and implementation of existing laws.
The Kenyan judiciary has consequent to the pandemic, scaled down its operations. New practice directives were issued by the Hon. Chief Justice, David Maraga to ensure that courts continue operating while maintaining social distance in order to save lives and to comply with the government directives. The courts have leveraged the use of teleconference through the use of Zoom, Skype, WhatsApp and a range of information technology tools to ensure that the wheels of justice keep moving. This therefore means that the traditional way of physical appearance has been reduced to nearly zero. What this in effect means is that advocates litigating physically in court has been cut out, arguments are to be done by way of submissions and judgments 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).
Some arguments have been advanced that Kenyan courts should operate normally and legal services should be classified as essential services. Whatever the circumstances, access to justice must be deemed as essential. In a normal criminal 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 given time, there will be a minimum of ten people in any single siting. This, as per the government directive may amount to a violation of the social distancing rule. The Kenyan courts currently are generally not spacious enough to accommodate ten people while maintaining the minimum social distance. This therefore poses a great health risk to all that will 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 to contain the spread of the virus.
The scaled down court operations have both a legal and economic impact to the Kenyan populace. The advocates may not be able to earn court appearance fees from their clients. Litigants in remand are waiting 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. Current scientific data shows 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 people who fall into the “vulnerable” category. 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 with requirements to manage the pandemic. This therefore calls for open and critical minds in presenting alternatives to advance one’s position.
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 is getting ahead of the change, leveraging the opportunities of telemedicine to deliver critical services, the judiciary and all related sectors have to adopt new approaches for the sake of preserving humanity, while maintaining the highest standards of judicial ethics.
*Hon. Hellen Onkwani is a principal magistrate and the vice-secretary to the International Association of Women Judges Kenya Chapter (IAWJ-KC).
The views expressed in this entry belong solely to the author.