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COVID-19 and the Prospects of Digital Legal Futures in Kenya

Stephen Mutie, Ph.D.

Kenyatta University, Kenya

The fact that COVID-19 has brought the wheels of justice in Kenya to a grinding halt is hard to believe. Yet, access to justice is a fundamental component of the rule of law in a functioning society. Miserably, due to the closing of some Kenyan courts, defenseless Kenyans have been left at the mercy of the police who have brazenly become the jury, the judge, and the executioner, essentially violating human rights with impunity. Notably, as agitations mount and lawyers demand the judiciary reopened amid the coronavirus curfew, the executive is now exploiting the pandemic to undermine democratic principles, and with a renewed temerity. Pray, it is high time the Kenyan judiciary went fully digital.

Joseph Wood reminds us that technology made large populations possible; large populations now make technology indispensable. This statement makes a lot of sense now in Kenya than days gone by. We are now locked down, and locking court doors, may result to chaos and untold human suffering. The closure of courts in Kenya by Chief Justice David Maraga on March 16th, 2020 as the Kenyan government rolled out strategies to combat the spread of the novel coronavirus, has exposed grey areas in our justice system. The kind of widespread confusion, variation, and fragmentation witnessed in the country because of this closure has largely exposed the Kenyan poor to great adversity. This confusion, however, can, and should be an avenue for potential developments of technology that would increase access to justice for all Kenyan citizens.

Legal technology, as Moses Odhiambo has argued in Managing Disruption: CJ Maraga team sets up infrastructure for e-courts’, has the potential to be the next frontier in the fight for access to justice for all. That is why electronic case management is a game changer at the moment and in the near future. The pandemic has clearly shown the shortcomings in the justice sector, and especially when access to justice is not considered as an essential service in Kenya even as vectors of oppression multiply. There is therefore an opportunity to restart the wheels of justice through teleconferencing, videoconferencing and other appropriate technology. It is noteworthy that some urgent matters in the judiciary are being done through video and teleconferencing.

The ongoing automation processes designed to transform Kenya’s judiciary into a fully-fledged e-court should be fully embraced now during this global pandemic. The automation efforts are part of the judiciary’s digital strategy, enshrined in 2017-2021 Sustaining the Judiciary Transformation Blueprint, to re-engineer its processes through information and communications technology (ICT). The automation initiatives are important because there is a need for the Kenyan judiciary to be efficient, cost-effective, accountable, and streamlined in its processes and administration.

Digital transformation, leveraging many diverse applications and digital tools available, empowers courts to reengineer and optimize legal processes. By focusing on the outcomes technology can help achieve, the judiciary can drive efficiencies and improve services for users. A systematic roadmap to implement digital justice applications can help the justice sector. Even as universities in Kenya have gone virtual and for the first time in Kenya, university graduations will be conducted virtually, pray, why not conduct cases in court virtually?

Stephen Mutie is a Gender/Sexualities Studies Lecturer and Researcher based at the Department of Literature, Linguistics and Foreign Languages, Kenyatta University, Kenya.

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