By Michele Lynda Mugenyi
On March 12th WHO pronounced the COVID-19 outbreak a pandemic, leading a number of countries to go into partial or complete lockdown. In Uganda, private and public transport was suspended, non-essential services closed, and gatherings of more than five people were banned. Going into lockdown has meant that all aspects of ‘normal’ life have taken an unexpected turn, and legal and judicial practice in the country is no exception.
Following the announcement of the nationwide directives, the Chief Justice of Uganda released guidelines of mitigating and preventative measures that would be taken by the judiciary in response to the pandemic. These included the suspension of all court hearings, appearances, and local and foreign conferences. Staff was encouraged to work from home and use video conferencing where possible. In addition, they were encouraged to deliver submissions strictly in written form via electronic means, as opposed to either delivering them orally or in written form. Another guideline permitted the hearing of urgent cases only. Under these circumstances, an urgent case is a criminal case that requires bail – e.g. murder, aggravated robbery, domestic violence (assault).
All of these guidelines were put in place to ensure business continues as usual without risking further spread of the disease. However, the implementation of these guidelines has limited access to justice in a number of ways, particularly for women, who already struggle to access justice under ‘normal’ conditions. By considering criminal cases urgent, these cases get prioritized over legal issues predominantly reported by women. These include family cases, which women are 32% more likely to report than men, and children’s cases, which women are 4% more likely to report than men. In addition, the physical restrictions on movement have made it difficult for women to access courts and lawyers for legal help.
Further, while making access to justice more of a digital experience has served as part of a solution, it has also created another issue by ignoring the digital gender gap. According to the Groupe Speciale Mobile Association’s (GSMA) Mobile Gender Gap Report 2020, women have a harder time accessing digital technology and the internet compared to their male counterparts because of obstacles such as affordability and IT illiteracy. The report states that the digital gender gap in Uganda for mobile ownership is 17% and 48% for mobile internet use, both in favor of men. Making judicial practice digital limits women’s access to justice at a time when they may need it the most.
Digitalization in the judiciary is an innovation that needs to be paired with other legal services in order to expand access to justice beyond those with technology and access to the internet. Fortunately, a number of organizations provide legal aid to people either living in remote areas or with little access to technology. For example, the Uganda Network on Law Ethics and HIV/AIDS (UGANET) runs legal aid clinics in ten districts across the country and mobilizes 100 community paralegals to travel to remote areas and inform people of their rights. Organizations like these create new ways to improve access to justice on a regular basis.
Another recommendation for improving women’s access to justice is that interim judicial orders should be made to address the legal challenges that fall outside the "urgent" cases category. The orders may serve as temporary solutions until full trials can take place when the pandemic ends. An example of this is the District of Columbia's Superior Court extended protection orders that were due to expire over the next few months in order to ensure women's security. Similar orders can be made about child custody or preventing evictions of widows and children from matrimonial homes.
Pandemics and crises tend to exacerbate existing problems such as poverty, non-observance of human rights, and gender inequality. In these uncertain times, vulnerable and marginalized groups are at a greater risk of having their rights and access to justice abused compared to others. We can not afford to take holistic approaches to this pandemic without considering the unique ways marginalized groups are affected. Now more than ever, access to justice for vulnerable groups must be preserved.