Recommendations for Legal Practice in South Africa During the COVID-19 Pandemic
Mollica Maharaj Managing Director, Rahman and Rahman Inc., Attorneys, South Africa The global COVID-19 pandemic has impacted the world in unprecedented ways.Businesses have suffered immensely. Every day journalists report that more and more businesses have been forced to retrench or close down for good. In fact, Moneyweb reports that the impact of COVID-19 on the economy could be worse than the effect of the 2008 economic crisis. President Cyril Ramaphosa acknowledged this in his latest address, but also reminded us that the number of lives lost would be far higher without the current stringent lockdown policies. Legal practitioners feel the impact Legal practitioners in South Africa have borne the brunt of the pandemic. In a nationwide survey of legal professionals conducted by Goldfields Attorneys Association in May, 58.2% of participants indicated they lost more than 60% of their income in April. In addition, access to legal services has been negatively impacted; the same survey revealed that 85.2% of attorneys and advocates reported that the lockdown regulations severely affected access to legal services by the public (85% of respondents in the survey said that access to legal services was negatively impacted). How can legal practitioners respond? Professionals across all sectors are required to work in an agile fashion and adopt a growth mind-set that will enable them to succeed during difficult times.These are a few steps that members of the legal community can take to mitigate long term risks: Collaborate It might seem counterintuitive to encourage collaboration during isolation, but for professionals, there is no better time to do so. Simple but effective strategies such as pooling of resources, sharing office workspace, and accommodating clients and colleagues with flexible working hours can ensure business continuity during tough times. Assess the court system Social distancing naturally causes challenges for court attendance. However, there are ways that this can be addressed to guarantee that people are safe and that legal processes are carried out adequately. One way of addressing this issue is to assess each case and prioritize accordingly. For instance, in this blog post, the author outlines that while certain critical matters cannot be addressed outside of court, other dealings such as preparations and litigation can be done virtually, for example, via zoom. Go digital! Digital technology has revolutionised the workplace, particularly within global firms that manage multiple offices across continents and time zones. In South Africa, firms are just now tapping into the possibilities virtual conferences hold for future business. It seems natural that the courts should benefit from digital technology. This would require courts to rethink current processes; for instance, even today, the majority of courts operate with paper and only a few courts have digitalised their paperwork. Going forward, this process will have to be transformed. It’s time to think ‘Out of the Box’ The far-reaching effects of the global pandemic on the legal profession has caused much panic, but, we believe it is the perfect opportunity to reimagine the law profession in South Africa. As the profession begins to embrace digital technology and integrate it into their vocation, we should start to think about how we can adopt a growth mind-set that enables us to identify opportunities, transform how we do things, collaborate with our fellow practitioners and ensure the public reaps the benefit of ongoing service. The legal profession in South Africa has been given an opportunity to transform current practices in order to provide the best service possible to clients in turbulent times. It will require legal professionals in South Africa to make small changes that, in the long run, will benefit them, their clients, and the law community as a whole.
Migrant Women Domestic Workers Deserve Protection Amidst the COVID -19) Pandemic
Daisy Nabasitu Public Prosecutor, Uganda As the world responds to the global shock of the COVID-19 pandemic, all economic sectors have adversely been impacted. This includes “the unregulated workplace” of the domestic workers, which mainly employs women. While women greatly contribute to development of the economy, little has been done to protect the female domestic workers, most of whom are migrants. They take care of their employer’s home while they go to perform their duties elsewhere. Currently, the COVID-19 pandemic has forced most employers to work remotely at home - the workplace of women domestic workers. Just like other employers have been affected, migrant women domestic workers around the world are no exception. These women workers are placed at the frontline of the battle of this pandemic through the provision of housekeeping, cleaning services, and care services for the sick, elderly, children, and people with disabilities, all of whom are very vulnerable to the virus and therefore must meet the sanitation demands. Despite the indispensable services they provide, women domestic workers are discriminated against, exposed to violence and their vulnerability has increased due to the poor working conditions in which they find themselves which requires immediate attention and protection. As a containment measure to the pandemic, several business activities have been closed, but homes have not closed and it is business as usual. Children and parents have all been sent home and advised to isolate themselves. Policies such as social distancing and isolation are recommended. These policies negatively affect female domestic workers, thereby exacerbating the discriminatory tendencies. The pandemic has had significant economic impacts on domestic workers worldwide including extended working hours, loss of jobs, and failure to return to their home countries due to border closures, multiple labor violations such as unpaid leave, absence of sick leave, non-payment or low payment of wages, effects of school closures, early termination of contracts, limited access to health care, risk of losing their jobs and loss of working hours, among others. Despite the risks they are exposed to, women domestic workers continue working even when their health is in danger. All employees have resorted to working from home and therefore domestic worker’s safety remains a cause of concern. Migrant domestic workers face unique challenges during the pandemic. Both live-in and live-out migrant women domestic worker’s employability and life is at stake and calls for attention of the human rights community. Live-out migrant women domestic workers work in several homes, interact with many people, and sometimes rely on public transport to travel to and from work, putting them at a high risk of contracting the virus. In some instances, their residence contracts have expired and have no means of payment. The questions to address are how safe is the home as a workplace, and how are domestic workers managing the crisis? While governments are catering for other employees, domestic workers too require protection and continued advocacy for their rights. During this pandemic, it is important to pay attention to domestic workers’ labor and other related rights. While at their workplace, women domestic workers should be able to easily access timely, consistent, and accurate information about the main health problems currently pertaining to the virus at this critical time. This applies to situations where they are denied telephone communication and the languages in which such important information is distributed cannot be understood by them. For those wishing to return to their countries after layoffs, they remain stranded in their host countries without any means to support themselves, including a lack of access to information about the pandemic. From the health perspective, a majority of female migrant domestic workers have no insurance coverage, no access to medical services, and some cannot access masks to protect themselves from infection. This lack of access to protective equipment may expose other family members to the virus. While they may be the least protected person in a home, their health is equal to the health of their employer because COVID–19 does not discriminate. Discriminatory policies, such as the proposal by Bahrain MP Masoumeh Abdel-Rahim requiring domestic workers to have a medical examination certificate confirming that they do not have the virus, are not practical at this time. Furthermore, domestic migrant workers affected by the virus are not covered by worker’s compensation. It is recommended that countries should ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families to provide global health equity and promote migrant worker’s health. In a bid to control the spread of the virus, travel restrictions (bans and lockdown) as a pandemic intervention strategy in most countries are applied in a discriminatory manner against returning migrant female domestic workers. Laid off workers cannot get back to their countries of origin, and those that return home are welcomed with violence; they are quarantined in shelters under unfavorable conditions. Such actions are contrary to the Siracusa Principles and UN Human Rights Committee General comment 29 on states of emergency and freedom of movement which provide guidance on government responses that restrict human rights for reasons of public health or national security. States should consider the impact on marginalized groups such as domestic workers when enforcing travel bans and quarantines so that they protect and respect their dignity. Where their return to their countries is inevitable, forced return policies should comply with international human rights obligations. In order to respond to the above problems, domestic migrant workers should have access to a domestic labor platform through domestic Worker’s Unions to amplify their challenges, educate them about their rights during the COVID-19 crisis, and provide resources and information on how to protect themselves and their families along with information on how to access treatment at their workplace. Conclusively, effective response to the COVID- 19 pandemic requires awareness campaigns, social distancing, quick and responsive reporting. These adopted strategies should equally apply to both formal and informal employees using an inclusive and equality approach as part of a global strategy to overcome this global crisis. Daisy Nabasitu is an Assistant Director of Public Prosecutions in Uganda. She has served as a prosecutor for the las 16 years specializing in women and children’s rights. As a Hubert Humphrey Fellow in the United States at the Washington College of Law, American University, she served as a legal fellow at the Human Trafficking Legal Center in Washington, DC. As a PhD fellow at Irish Centre for Human Rights at NUI Galway, she is conducting research on forced labor and exploitation of migrant women domestic workers from Uganda.
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.
A Judge’s Perspective: Preparedness of the Judicial Service of Ghana Post COVID-19
Barbara Tetteh-Charway Judge, High Court, Ghana Before the COVID-19 pandemic arrived in Ghana, I was already yearning for the annual legal vacation. The new legal year had just begun and there were judgments to be delivered, trials to be completed, and new ones to be conducted, not to talk of the endless stream of applications being filed each week. It was going to be business as usual, until out of the blue, our lives were completely disrupted by the realization that this virus was closer to home than imagined. The Chief Justice’s response to the COVID 19 pandemic was to direct trial judges to enforce strict case management techniques in the court room alongside social distancing as a means of preventing the spread of COVID-19. These included; allowing only parties whose cases were scheduled for hearing into the court room to avoid large gatherings; adjourning cases to specific times on given dates to limit the number of people allowed into the court room at a time; exercising great restraint in remanding accused persons in order to avoid overcrowding in police cells and prisons; and, dealing with only urgent matters. What constituted “urgent matters” was a matter for interpretation by each judge until this discretion was taken out of the hands of judges when the nation entered into the partial lockdown phase. In Ghana, the lockdown was not nationwide. It was enforced in the Greater Accra and Greater Ashanti Regions, the most populous regions in Ghana. During that three-week period, most of the courts in the affected regions were closed leaving just a handful to handle mainly cases involving breaches of the lockdown regulations. That such cases were recorded might be an indication that the seriousness of the pandemic was lost on some. However, the importance of capacity building to hold remote court hearings was not lost on the legal fraternity at all. Indeed, before the COVID 19 pandemic, the catch phrase was: “it is Digi-time” I first heard this phrase from Ghana’s Communication Minister when she delivered a speech during the launch of the E-Justice system and situated it within the wider framework of Ghana’s E-transform Project. The E-Justice platform, which has been operationalized in the Law Court Complex in Accra and is soon to be rolled out in other courts nationwide, has introduced an electronic case filing system which dispenses with the physical filing of court processes. Other novelties are the E-docket, a digital copy of the physical docket which contains all processes filed in a matter and can be accessed remotely from the comfort of one’s home, E- Cause lists which dispenses with the physical presence of lawyers or their clerks at court premises to check on dates scheduled for their cases and an all new digital and paperless working environment that most judges, lawyers and court staff are still adapting to. The implementation of the E-Justice system has not been without challenges. For example, it is accessible where there is internet connectivity and whenever there is network failure, the system cannot be accessed. Meanwhile, the electronic process service is yet to be perfected. Also, the Direct Transcription System whereby court proceedings are recorded and simultaneously displayed on monitors for viewing by the judge and lawyers in a case, may have done more in exposing the need for the Judicial Service to hire and train skilled court recorders in producing accurate record of proceedings. Notwithstanding the challenges with the implementation of the E-justice system, it is clear that there is no turning back. The evolution which began slowly (and now being hastened by COVID-19) must take pre-eminence over traditional ways of doing business to the point where physical gatherings may no longer be necessary in the adjudication of disputes. Prior to the COVID-19 pandemic, the courts already had the technology for taking evidence during a trial via video-conferencing, a technology which I have used in one of my trials effectively. Therefore, it is fair to say that to a large extent, the Judicial Service, by exploiting technology as a means of enhancing justice delivery has laid the foundation for surviving COVID-19 and life thereafter. However, there is more to be done to keep abreast of the times. At the time of writing this piece, I have already read on social media that a court in Lagos, Nigeria, has held court proceedings online. This is commendable. Going forward, there may be the need to amend existing legislation to support the operation of virtual court proceedings and to consider, for instance, the use of google maps in the expeditious resolution of land disputes. The implementation of full scale virtual court proceedings will also have challenges of its own which include; huge data and equipment costs, massive capacity building of court staff to handle the full automation of court processes and equipping all stakeholders in the justice delivery system with the know-how to navigate the digital realm with ease. All these may lead to a blurring of normal working hours which may impact work-life balance. Thus the Judicial Service needs to manage the change process as seamlessly as possible. In his article entitled: “Equipping the Judge for E-Justice: The answer is Change Management” Justice Constant Hometowu, a Justice of the High Court of Ghana states that “… change is inevitable, resisting change is myopic, allowing change to pass by without embracing same is anachronism, allowing change to work for one is wisdom and gain and finally the only thing that does not change is change itself.” The COVID-19 pandemic has come to re-enforce the need to embrace change as it is certain that the world will not be the same again— and the Ghana Judicial Service must keep up with the changes.  Published in “The Bench”, A Journal of the Association of Magistrates and Judges of Ghana, 2019, Volume 1 page 48.
Multiple Jeopardies in a time of COVID-19: Being Woman, International, & Student
Gloria Paidamoyo Chikaonda PhD candidate in Public Law University of Cape Town Stanford University Knight Hennessy Scholar As the world takes stock of the intersecting implications of COVID-19, attention has to be paid to the differential outcomes for students in institutions of higher education and professional schools. With more women attending law school, we need to consider the ways in which they will be uniquely affected by COVID-19 pandemic. Students with children will struggle to get through online curriculums. Already, research reflects that mothers in academia face multiple gender-based challenges and gaps, for instance, many women academics struggle to produce as much work as their male counterparts because of the disproportionate amount of care-work placed on them. Graduate law students and legal researchers with children will probably face greater financial challenges and practical barriers that will impact their academic success. As the job market shrinks, foreign law graduates are also at risk of unemployment. With hiring discrimination persisting in the best of times, women and especially non-citizens, will suffer even more. As many have pointed out, the coronavirus pandemic has highlighted the systemic fissures within African societies relating to the welfare of the most vulnerable. Women, children, the disabled and the poor are among those that are already showing signs of being hardest hit by the pandemic. Apart from the vulnerabilities faced by international students generally, African students living and studying abroad have to deal with peculiar challenges. Many of us have had to weigh the decision between staying in our countries of study to weather this storm until it passes or to return to our homes to experience this unprecedented time with our loved ones, but at the unthinkable risk of exposing our families and communities to the disease, in places with weaker health systems and fewer medical facilities than where we are currently. Additionally, leaving puts us at the risk of being denied entry back into the countries of study for an indefinite period. Many of us, have opted to stay put. In the United States, universities sent undergraduate students away from campus as early as the beginning of March, some with little more than a week’s notice. The universities decided that those measures were necessary and appropriate to prevent infections amongst the university community. However, the first concerns that came to my mind as an international student was, should they do that at my institution, where would I go? African students require time to store away their belongings and find funds to travel home or to loved ones within the country. Once they are home or safely away from the university, they need to be housed in a place where they can continue to study, with minimal distractions, good internet connection and electricity to access online study materials. For those that decide to return to their home countries, many of these basic facilities would be inaccessible to them, added to the fact that they will be located in a different time zone, which means they would not easily be able to join online classes even if they had access to the things mentioned. For women, all these requirements stated above, come with a challenge as there are often expectations of women to contribute to the home, care giving and community activities. Many African students survive college life and life abroad through university employment, therefore widespread cuts of teaching and research assistant opportunities and other campus jobs previously available to them are now cut off, leaving them with few sources of financial support. Foreign students are often ineligible for financial assistance provided due to their citizenship, they are ineligible too for emergency financial assistance packages being provided by governments to their citizens. Even with all of this set out, foreign students in the United States are probably better off than those in other parts of the world. We need only look to the reports of racial discrimination against Africans in China to imagine the worst experiences of Africans studying abroad during this time. It is true that anyone who chooses to live or study in a foreign country bears reasonable risk for unforeseen incidents that may occur while they are there; it is for this reason that we are encouraged to travel with insurance. However, the realities of the political and economic landscapes of many African countries, combined with racial discrimination and unfriendly immigration policies African students are likely to experience the impact of this pandemic more acutely than foreign students from other parts of the world. The intersectional nature of the issues arising from the pandemic also means that we have to look at the impact of the pandemic on African women studying abroad who may have extra layers of care duties, as well as other broader-based gender-related issues as emerging data from UN Population Fund (UNFPA) shows. The pandemic has exposed existing challenges, and unveiled new ones that lie at the intersection of citizenship, race, gender, class, geography and many others. Addressing the challenges of international students requires applying a gendered lens to understand the peculiar challenges female students will be facing during and after the pandemic. Gloria Paidamoyo Chikaonda Is a PhD candidate in Public Law University of Cape Town and a JSM candidate for Stanford International Legal Studies Program (SPILS) Fellow 2019/20, and a Stanford University Knight Hennessy Scholar.
Protecting Africa’s Essential Marketplace Women – The Continent’s Unsung (S)heroes
Gloria Kuoh Consultant,World Bank's Women, Business and the Law Project Women in local markets across Africa were the first group that came to my mind as the global crisis hit. What would their work schedule entail and earnings average amid lockdowns and other restrictive measures? How would they implement social distancing in crowded and poorly planned market centers? And, why did it take a pandemic for some to recognize their work as essential? In sub-Saharan Africa, informal sector workers represent over 70% of the workforce. With labor and employment laws governing the formal sector, only a minority of women on the continent benefit from protections afforded during the pandemic, including sick and other leave policies, health and unemployment insurance benefits, and flexible work arrangements. Unlike some of their essential worker counterparts, local market sellers lack all forms of labor, health, and social protections. Yet, they have no choice but to attempt to generate earnings for their families and provide food to their local communities. As the pandemic continues to spread, the world is witnessing an increase in existing gender inequalities, especially in the women-dominated formal and informal sectors. Social distancing measures continue to be difficult to implement in local markets where negotiation and other bargaining strategies foster proximity between buyers and sellers. As such, women sellers expose themselves to greater health risks. Additionally, limited work hours constrain their livelihoods, including those of individuals at the receiving end of the bargain who fear food insecurity. As many buyers gradually refrained from going to local markets, local market women find themselves taking risks that would not generate substantial earnings. Some local market women decided to be innovative by engaging in mobile marketing and selling through WhatsApp. Such innovative approaches provide temporary fixes. The pandemic has proven that the essential work local market women provide necessitates a closer look at formalizing such business environments to maintain productivity, economic growth, and competitiveness during crises. In developed countries, grocery stores and food chains mobilized to provide their workers with job security and necessary protections while becoming the pillars of the economy as these businesses remained open. Shifting essential informal workers to the formal sector requires an assessment of how labor, health, and social protections could maintain productivity levels during crises. With the disruption of supply chains, food security in developing countries emerged as one of the priorities issues. Still, the global pandemic failed short of stopping Africa’s most essential food workers from providing for their families and communities. These women rose to the challenge by demonstrating their resilience and ability to adjust to unprecedented challenges despite the lack of protections. Our next challenge as a global community is to ensure laws, regulations, and social protection measures apply to local market sellers – relentless breadwinners and food providers. The need to provide these protective measures should however not be a top-down approach, but rather one that takes into account the voices and agencies of the market women themselves. Centering their experiences and recommendations will be key to a successful implementation and roll out of any post-COVID19 policies. Gloria Kuoh is a Consultant for the World Bank's Women, Business and the Law project, where she researches and analyzes legal restrictions on women's employment and entrepreneurship worldwide. Gloria is also the author of various scholarly commentaries published in Oxford University Press International Law in Domestic Courts (ILDC) database and serves as a Professorial Lecturer in Law at the George Washington University Law School.
Women, Law, Legislation, & Work: How the Coronavirus is Affecting Women in the Workplace in Ghana
Bashiratu Kamal Gender Equality Officer for the General Agricultural Workers Union of Trades Union Congress-Ghana. Since recording cases of the novel coronavirus in March, 2020 there has been a ban on social gatherings, closure of schools and places of worship coupled with instituted partial lockdowns of some areas in Accra, Tema, Kasoa and Kumasi and these lockdown measures were subsequently lifted in April, 2020. Through it all, it has been evident that there is generally a lack of gender responsiveness reflected in policy, programming, planning and implementation of state interventions. Women constitute 49.1% of Ghana’s population; 46.67% of the labor force according to the world bank, about 90% of the workforce in the informal sector where they are mostly self-employed with about 17.4% waged and salaried workers due to work arrangements that do not mostly support their reproductive and family lives. Most women workers remain more vulnerable to their employers in the wake of this pandemic even with the existence of laws and legislation that protect their reproductive rights. According to the United Nations Conference on Trade and Development “globally, women are more vulnerable to economic shocks wrought by crises such as the coronavirus pandemic” mainly because women’s employment are mostly temporary through agencies and they are more at risk of job losses in times of economic shocks or other crises. Workplace inequalities despite legal protections In Ghana, several workplace policies especially in the private sector discriminate against working women, contributing to furthering gender inequalities. These injustices resulted in several advocacies after a leaked memo linked to Reliance - a recruitment agency for Millicom Ghana requested pregnant women to re-apply for their jobs after childbirth surfaced on the internet. Meanwhile, Act 63 (1) (e) of the Labour Act 651 (2003) guards against unfair termination of employment “in the case of a woman worker, due to the pregnancy of the worker or the absence of the worker from work during maternity leave;” In addition, Act 27 (2) of the 1992 Constitution states that “facilities shall be provided for the care of children below school-going age to enable women, who have the traditional care for children, realize their full potential.” Sadly, not a single government institution has a functional child care facility leaving working women with the unfair choices of either working to earn an income or concentrating on the unpaid care work of building a family. Recognizing the importance of women’s active participation in the labour market, the framers of the 1992 Constitution in their wisdom inserted provisions on maternity protection in Act 27 (1-3) to relieve women of any economic and social inequalities. In the absence of childcare facilities at workplaces, most women workers have been going through emotional traumas related to the dilemma on the care of their children with schools still closed since the lifting of the partial lockdown. Others have to pay more in cash and in kind (giving out foodstuffs etc.) through special arrangements to get babysitters for their children, an act which increases the risk of mothers, children and babysitters in contracting the virus from one another. According to Act 55(1) of the Labour Act 651 (2003), “Unless with her consent, an employer shall not (a) assign or employ a pregnant woman worker to do any night work between the hours of ten o’clock in the evening and seven o’clock in the morning;” Meanwhile, some women workers report the introduction of shift systems that do not exempt pregnant women and nursing mothers at their workplaces leaving mothers, children, unborn babies and their families at the risk of being infected by the coronavirus. Many others equally report the refusal of their employers to agree to flexible work arrangements to allow them care for themselves, their children and unborn babies. Similarly, some pregnant women and nursing mothers report difficulties encountered in attending antenatal and post-natal clinics respectively due to rationing arrangements which sometimes conflicts with their appointment dates further endangering the lives of innocent children and unborn babies. The vulnerabilities of pregnant women and nursing mothers were compounded after reports of an employee infecting over 500 workers in a fish factory in Tema. It is thus important to guarantee flexible working hours and change of tasks for them. What can be done? The government of Ghana needs to work on establishing public child care centers through appropriate institutions and as a matter of urgency, provide temporary satellite tents that adhere to all the COVID-19 protocols as child care centers. Employers should commit to establishing child care facilities at their workplaces with trade unions pushing for definite clauses that align with provisions in Act 27(2) in collective agreements. There should be total enforcement of Act 21 (1) (e) of the 1992 constitution which states on freedom of association for every person to enjoy the “freedom to form or join trade unions or other associations, national or international, for the protection of their interest” to guarantee enhanced workplace protection since trade unions through collective agreements have been noted to expand maternity protections on leave, cash benefits and occupational safety and health while offering representations in instances of exploitation and discrimination. In furtherance to this, section 79 (1) of the labour Act 651 (2003) also states that; “Every worker has the right to form or join a trade union of his or her choice for the promotion and protection of the worker’s economic and social interests”. There should be consistency in harmonizing all laws and legislation, since provisions in Act 27 (2) of the 1992 constitution are conspicuously missing in the Labour Act 651 (2003) which is mainly used by various stakeholders. Trade unions and women’s groups have a responsibility to ensure its reflection in the on-going review of the Labour Act 651 (2003). Bashiratu Kamal is the Gender Equality Officer for the General Agricultural Workers Union of Trades Union Congress-Ghana. She is a feminist, a gender and labour expert who believes in equality of, and equity for all persons. Find her on Twitter
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.
“Is the Virus a Thief?” Togolese Women and State Violence in a time of COVID-19
*By Marius Kothor Ph.D. Student, Yale University On April 2nd, 2020, the government of Togo declared a state of emergency and instituted a curfew to stop the spread of COVID-19 in the small West African nation. A few days later, a woman known as Mama Taméa challenged the legitimacy of the curfew in a video that was widely circulated on various social media platforms. In the Gen language, Taméa asks “why are we being told to stay inside at night, is the virus a thief ? Taméa’s question humorously highlights the contradiction in the government’s efforts to restrict movement in the evenings while the virus is allowed to spread freely during the day. Beyond the comedic effect of Mama Taméa’s question, however, lies a deep suspicion of the true intentions behind the curfew. Curfews are nothing new in Togo. Throughout the 52 years of military dictatorship in the country, curfews have been used by the government to suppress political organizing and enable military and police forces to commit atrocities. Thus, perhaps, the thieves that Mama Taméa is implicitly calling-out are not the ones who emerge at night to take people’s material possessions, but, rather the ones who have historically used the cover of darkness to rob people of their civil liberties and, often, their lives. Since the declaration of the state of the emergency last month, women have been documenting the abuses they have suffered at the hands of government forces. 10 days after the curfew was implemented, a 65-year-old woman was severely beaten by soldiers on her way to use an outhouse at night. In a video published on a Togolese news website, the woman displays her wounds and answers questions about the attack. In doing so, she uses her body to testify to the violence inflicted on her. Similarly, in a WhatsApp audio note, an unidentified woman spoke out against the violence perpetrated by government forces in the village of Komea in the northern region of the country. In another voice recording circulated on WhatsApp, a woman who identified herself as a merchant working near the Ghana-Togo border in the capital city, Lomé, recounted how government forces were extorting money from traders and physically assaulting the ones who were unable to pay. State violence against women in Togo is not systematically documented. Yet, as Togolese activist, Farida Nabourema, explains in a recent essay, moments of crisis in the country are often accompanied by increased state violence against women. Yet, as Mama Taméa and others have shown, Togolese women refuse to be silent about the violence they face at the hands of the government. Togolese women have a long and rich history of resisting oppressive regimes. My dissertation research, for example, examines the various ways women resisted French colonial occupation in Togo. From financing the political campaigns of Togo’s nationalist leaders to crafting songs and chants that were performed at anti-colonial rallies, women were at the vanguard of Togo’s decolonization movement. As recently as January 2018, thousands of women, dressed in black mourning clothes, staged a nation-wide demonstration against the decades-long dictatorship of the Eyadema family. As the COVID-19 health crisis quickly turns into a political one, women in Togo are on the frontlines, questioning the government’s actions and using their bodies and voices to document the violence inflicted on them and their communities. It is not clear when the state of emergency will be lifted or if the end of the pandemic will lead to the retreat of the government forces. What is clear, however, is that Togolese women intend to continue their historical fight against structural violence and injustice, insisting that the pandemic must not be used as a new justification for old patterns of violence and intimidation. Marius Kothor is is a Ph.D. student in the Department of History at Yale University. She has with broad research interests in 20th century African history, gender, and Black Internationalism. Her dissertation focuses on women trader’s political and economic contributions to Togo’s independence movement and how Togo’s anti-colonial struggle informed African American discourses on decolonization in Africa. Marius employs a variety of methods in her research including; archival research, oral histories, and visual analysis. Read her op-ed on immigration in the New York Times. The views expressed in this entry belong solely to the author.
*Fiona Atupele Mwale, LLM Judge, High Court of Malawi “Gender inequalities exacerbate outbreaks, and responses that do not incorporate gender analysis exacerbate inequalities.” (Smith 2019). Although Malawi has not imposed a mandatory lockdown as of this writing, a number of institutions—government and non-governmental, have imposed a system in which staff members are rotating with many operating from home a number of days a week, an attempt to “slow down” the spread of infections as it were. From evidence across the globe in countries which have imposed lock down measures, domestic violence which for the most part is perpetrated against women by men, has risen exponentially. Women are now trapped at home with their abusers. Although I have not experienced in the courtroom any such cases, my experience on the UN Women Ending Violence Against Women Advisory Group for Eastern and Southern Africa (which engages stakeholders for strategy intervention on the region) has shown that even in this period where men are at home more, some instances of domestic violence have been reported to the police. In Malawi, no research has been concluded yet, but it is projected that once the pandemic progresses and once a lock down is imposed, the numbers will rise. Hotlines are being set up for this purpose as are other response mechanisms, which once in place, could overwhelm the criminal justice and the courts should equally be ready to respond. Criminal matters are not the only ones in which women will be disproportionately affected. Considering that women work in predominantly different industries to men, the sector that has been most hit by job losses is the sector with high levels of women, often receiving less pay and benefits. Domestic workers who commute, flight attendants, waitresses, flight attendants, hair-dressers, beauticians etc. are amongst those that are likely to suffer job losses and require court intervention to enforce their rights upon termination of employment where they were employed in the formal sector and their basic human rights for those in informal employment. Social Cash Transfer schemes are in operation for those who are unable to access their income in these times, however, unequal distribution in view of the large numbers of the women involved can be anticipated and these violations too shall require redress. The virus is not gender blind, the response to it should not be either. In my earlier blog entry, I highlighted some of the current challenges faced by the courts in Malawi, and I made general recommendations on how to handle these challenges. As evidence has suggested, women’s access to justice in a time of COVID-19 require gendered focused mechanisms to address the interplay of intersecting challenges. Below are some recommendations for how courts can address these issues. Recommendations All violence against women and children matters should be treated as urgent. Sensitization/training of all court staff on gender implications of COVID 19 and implementation of social distancing measures in urgent matters. Consideration should be made for female witnesses or litigants who bring their babies to court and have them on their backs during the proceedings. This is a matter to be discussed with the Department of social welfare for an efficient solution. Consider fast tracking violence against women matters to ensure that women do not have to return to homes with violent abusers. Conclusion There is an indication from global projections that gender-based cases will increase during the pandemic and that the judiciary will be overwhelmed. It is therefore crucial that the Malawi judiciary undertakes a comprehensive analysis of access to justice and COVID-19 incorporating a wide scope of justice stakeholders and health experts. A capacity assessment of the courts is crucial at this stage to ensure that the Judiciary is ready to respond efficiently when the cases start rolling in. Fiona Atupele Mwale is a High Court Judge in Malawi and a former Fellow of the Hubert Humphrey Fellowship at the Washington Collection of Law at American University, Washington, DC. The views expressed in this entry belong entirely to the author.
LEGAL “KNOWNS”, “UNKNOWNS” AND LOOMING CONSTITUTIONAL CRISIS IN GHANA
*By Abdul Baasit Aziz Bamba, Ph.D. Lawyer and Lecturer at the School of Law, University of Ghana. Unless the COVID-19 crisis subsides to enable the 2020 presidential and parliamentary elections to be held by December 7, 2020, we will be confronted with a constitutional crisis by reason of the combination of certain legal “knowns” and “unknowns”. The legal knowns represent clear and obvious legal situations, which appear to be beyond legal controversy whilst the legal unknowns are suppositions and conjectures based on “ifs” and “buts”. It is a legal known that the term of office of (a) the President (article 66(1)); (b) his Ministers (JH Mensah v Attorney-General, 1997); (c) the Speaker and Members of Parliament (article 113(1)) expires on January 6, 2021. Yet the concurrent expiration of the terms of the executive and parliament on January 6, 2021 leads to a number of unsettling legal unknowns or scenarios if no presidential and parliamentary elections are held by December 7, 2020. Scenario 1: No President, No Parliament In this scenario, there will be no executive or the legislature on January 7, 2021 since the term of office of these two organs of government would have ended by operation of law on January 6, 2021. The only organ of government that would remain is the judiciary. We are in uncharted territory and the resultant legal and political vacuum is not only dangerous, but also presents an unprecedented constitutional crisis. Scenario 2: Chief Justice as Acting President Scenario 2 – Chief Justice as Acting President – rides on Scenario 1. Upon the expiration of the term of the executive and legislature on January 6, 2021 in Scenario 1, we may be tempted to invoke article 57(2) of the Constitution to make the Chief Justice the acting President. However, the 1992 Constitution does not include the Chief Justice in the presidential line of succession (Article 60). Nor did the 1969 and 1979 Constitutions. From the viewpoint of our constitutional history and for context, it is noteworthy that under the 1969 Constitution the Speaker of the National Assembly acted as president in the absence of the President. (Article 38(3) of the 1969 Constitution). The 1979 and 1992 Constitutions have the same provisions on succession to the presidency. In the absence of the President, the Vice President acts as president, and in the absence of the Vice President, the Speaker of Parliament acts as President. As already noted, the Chief Justice is not included in the presidential line of succession. Articles 57(2) of the Constitution deals with persons who “take precedence over all other persons in Ghana”. It does not directly relate to the presidential line of succession. Instead, it is article 60 that deals with succession to the presidency. Therefore, articles 57 and 60 address clear, separate and distinct matters. And there is no direct logical correlation whatsoever between the persons named in article 57(2) and the succession to the presidency provided for by article 60 of the Constitution. Therefore, if we invoke article 57(2) of the Constitution to make the Chief Justice the acting President, it will amount to a desperate move to avoid the doomsday situation presented by Scenario 1 – no president and no parliament on January 7, 2021. It is also extremely doubtful the framers of the 1979 Constitution and 1992 Constitution ever contemplated the Chief Justice acting as President in the absence of the President, Vice President and Speaker of Parliament; considering the constitutional scheme on the presidential line of succession in the 1979 Constitution, which has been reproduced in the 1992 Constitution. In the 1979 Constitution, we adopted the US presidential system of government with complete separation of the executive and legislature. By the provisions of the 1979 Constitution, the term of office of the President was 4 years (article 53(1)) while that of Parliament was 5 years (article 94(1)). The different terms of office for the executive and the legislature as provided for in the 1979 Constitution, together with the different constitutional stipulations in relation to the period for holding presidential and parliamentary elections was advantageous. This made it exceedingly remote and unlikely that the end of the term of office of President and the dissolution of Parliament would take place on the same date. Another reason which supports the view that it was not in the contemplation of the framers of the Constitution for the Chief Justice to ever act as president rests on the fact that, the presidential line of succession in article 47(7-12) of the 1979 Constitution (same as article 60(7-12) of the 1992 Constitution) was clearly influenced by the US Constitution and the US Presidential Succession Act of 1947, where the Chief Justice is not included in the line of succession to the presidency. Despite the lack of textual, historical, structural or conceptual support for the Chief Justice acting as President, Scenario 2 does not look as outlandish as it may seem at first blush given the obvious adverse legal, social and political consequences of Scenario 1. Scenario 3: Chief Justice as Acting President governs without Parliament Scenario 3 piggybacks on Scenario 2. If Scenario 2 prevails with the Chief Justice acting as President, it would appear that, by the combined reading and effect of article 113(3) and 297(h) of the Constitution the Chief Justice would have the option of governing the country with or without Parliament for the purpose of holding “a presidential election within three months after his assumption of office” as acting president (Article 60(13)). To elaborate further, article 113(3) of the Constitution empowers the President if he “is satisfied that owing to the existence of a state of war or of a state of public emergency in Ghana or any part of Ghana, it is necessary to recall Parliament, the President shall cause to be summoned the Parliament that has been dissolved to meet.” Relatedly, Article 297(h) states that “words directing or empowering a public officer to do any act or thing, or otherwise applying to him by the designation of his office, include his successors in office and all his deputies and all other assistants”. By extension, if the Chief Justice becomes acting president he could exercise presidential powers on the basis of article 297(h) of the Constitution for the purpose of holding “a presidential election within three months after his assumption of office” as acting president. Should the Chief Justice act as president for a period not exceeding 3 months for the purpose of holding a presidential election we should expect the most senior judge of the Supreme Court to act as Chief Justice. If the COVID-19 pandemic persists beyond 3 months after the Chief Justice has acted as president, we have hit a constitutional cul-de-sac. To overcome this, we may creatively deploy article 297 (b) of the Constitution to keep extending the term of the Chief Justice for 3 months in succession until the pandemic abates to enable us hold presidential and parliamentary elections. Scenario 4: Chief Justice as Acting President recalls the dissolved Parliament By article 113(3) and 297(h) of the Constitution as explained above, the Chief Justice can exercise presidential powers when he acts as president. Starting from that premise, the Chief Justice as acting president may invoke article 113(3) of the Constitution “to summon the Parliament that has been dissolved to meet.” Substitute “Chief Justice” for “President” in article 113(3) of the Constitution. When that is done, then acting on the basis of article 113(3) of the Constitution, the Chief Justice may recall the dissolved parliament after declaring a state of public emergency pursuant to article 31of the Constitution. In the absence of a formal declaration of a state of emergency, the Chief Justice cannot trigger article 113(3) since that provision is predicated on “the existence of a state of war or of a state of public emergency in Ghana or any part of Ghana”. Scenario 5: Speaker of Parliament recalled acts as acting president and first deputy speaker acts as speaker of parliament Should the Chief Justice recall the dissolved Parliament pursuant to article 113(3) of the Constitution after declaring a state of emergency by reason of the persistence of the COVID-19 pandemic, the Speaker of the dissolved and recalled Parliament would replace the Chief Justice as acting president (article 60(11). When that happens we should expect the 1st Deputy Speaker of Parliament to act as Speaker of Parliament. Scenario 6: Parliament legislates to expand the presidential line of succession Article 60 of the Constitution provides for the line of presidential succession in the order of Vice-President and the Speaker of Parliament. However, Parliament could use its residual power under article 298 of the Constitution to expand upon the presidential line of succession. Any such expansion cannot include the extension of the term of the President; that would appear to be patently unconstitutional since the President has a fixed term of 4 years. We may consider including in the presidential line of succession heads of independent constitutional bodies such as the Commission on Human Rights and Administrative Justice and the National Commission for Civic Education. We could accomplish this expansion in the presidential line of succession by amending the Presidential (Transition) Act 2012 (Act 845). Scenario 7: The President declares a state of emergency and Parliament extends its term. In this scenario, immediately before or after December 7, 2020 but prior to January 6, 2020 when the window for holding presidential and parliamentary elections is closing or has closed, our President declares a state of emergency pursuant to article 31 of the Constitution. As a sequel, a citizen of Ghana mounts an interpretative action in the Supreme Court arguing that, the expression, “At any time when Ghana is actually engaged in war” in article 113(2) covers not only war as we know it but extends to “war-like situations” and the Government’s efforts to tackle the COVID-19 pandemic is a “war or a war-like situation”. If this tenuous or attenuated legal argument prevails then the current Parliament could extend its life beyond 6th January 2021 in periods of 12 months at a time but not for more than 4 years. When Parliament extends its term beyond 6th January 2021, the Speaker acts as president when the term of office of the president expires on 6th January 2021. CONCLUSION What is clear from the above scenarios and analysis some of which appear like a carousel is that a constitutional crisis beckons if we are unable to hold presidential and parliamentary elections by December 7, 2020. Scenario 1 is the worst possible scenario we may ever face. Scenarios 2, 3, 4 and 5 contain too many “ifs” and “buts” for comfort and they provide no guarantee that we can avert Scenario 1 – the doomsday case of no president; and no parliament. Scenarios 6 and 7 are possible but not in the least probable.So the buck stops with our Electoral Commission. The impending constitutional crisis suggests that in time the Commission has to consider seriously the prospect of holding presidential and parliamentary elections on different dates. Much more besides, the Commission as part of its risk management and business continuity planning and strategy, and working in tandem with our scientists with epidemiological background, must come out with contingency plans for holding presidential and parliamentary elections by December 7, 2020. Any such plans must not endanger the health of voters. Meanwhile, we must constantly keep in mind that the legal, political and social consequences of not holding presidential and parliamentary elections by December 7, 2020 are too dire and unsettling to contemplate. *The views expressed in this entry belong solely to the author.
FORGING NEW PATHWAYS TO LEGAL PRACTICE IN SOUTH AFRICA
*By Rehana Khan Parker A human rights activist and lawyer in practise for 27 years in Cape Town, South Africa. When a pandemic plunges the world into the Fourth Industrial Revolution, the realization dawns that we cannot go back to our old ways. In South Africa, the practise of law means lugging huge folders of files to court, sitting in traffic for 60 minutes or more, waiting for your case to be heard at the end of a long roll, or catapulting from one courtroom to another for a pretrial conference, on edge, in heels, flying up flights of stairs, anxious that the case may have been called by the judge—and trashing tons of wasted paper a few years later. Early February 2020, I was watching the global reports on the spread of Covid-19 and tuned in often to my colleagues overseas and heard their pleas and frustrations on the “Lady Boss Lawyers” group on Facebook. My firm went into an elective social distancing on the 9 March 2020, following the first reported case of coronavirus on our shores on 5 March 2020. No doubt I was labelled panicky when I suggested zoom meetings and appearances to my clients since it was at that point an international epidemic, not a locally transmitted disease and we deemed ourselves untouchable down south of the equator. On 15th March 2020 , the scramble started when I emailed the Judge President of the Western Cape High Court as to what precautions the court will be taking. President Ramaphosa announced the arrival of the pandemic in South Africa, and declared it a national disaster with plans afoot to mitigate the pandemic with a complete lockdown starting at midnight, on 26 March 2020. At the national level, Lockdown Regulations were rushed. A national disaster was on our hands and we went into a complete shutdown. The regulations begged many questions, and lawyers in manifold WhatsApp groups attempted to make sense of a flurry of regulations to monitor a range of sectors open to manifold interpretations. There were numerous amendments to the regulations, as lawyers dissected each letter, word and definition. The hardest part was that our courts were reactionary rather than proactive. The Gauteng High Court already digitized in January 2020 as a pilot project, and this was the opportune time in history to set the clock to tick to a new way of thinking. For my practice, the toughest part was contacting key stakeholders and my major clients as to what measures would be put in place. My business was reengineered into finding a new pathway to practice, which is by far a more comforting pathway, with having a work life balance and still able to get the job done. I tossed out the rigid routine—wake at 7am, work at 8am, lunch at 1pm, work till 6 pm, then head home to try and squeeze in a yoga session, often too frazzled to do so or cook a meal and ended up with an uber eats instead routine. That which we were all screaming to do for years, work-life-balance finally happens. The dizzying developments did not leave me fazzled for long. I was ahead of the race and out of sheer frustration, started to write a short note to the Minister of Justice to enquire when the pilot project would be implemented throughout the country and a "Dear Sir" ended up in 10 pages which I submitted to the legal Practice Council on 14 April 2020. It was forwarded to the Chief Justice, The Minister of Justice and the Judge President with minor changes on 24 April 2020. I examined every aspect of practise that failed in the past and justified in many instances why a face to face consultation or hearing was outdated. I ended up recommending changes to legislation, the Rules, how to sign an affidavit, and a will via video conference. I suggested admissions of practitioners via zoom and proposed new ways for sitting for examinations. And my pages grew into suggesting a Benevolent Fund, which is a fund to cater for practitioners under financial stress. I expressed my concerns on social media of what my crystal ball view was revealing. I saw gloom, losses and despair at what I was following on social media. Their stories stirred me. In South Africa, 82 percent of law firms are single practitioners with limited resources, and I was now more intent than ever, to change the landscape of practise and optimize digital technology to practise more effectively. I went live on SABC TV 2 Morning Live DSTV, 21 April 2020, to create awareness on the hardship and hurdles facing the profession. This gained momentum over the past week and I was happy to learn that some of my proposals were carried out. However, we need all role players and decision makers to be on the same page; together we are compelled by a force majeure to embrace a new pathway not only now whilst under lockdown, but for the foreseeable future post COVID-19. And the old feminist chatter of the billable hour and flexi-day suddenly disappears into what works, what no longer does, what are my wants, my needs and realizing work could be done any time of the day, or night! Yes, the concept of a working day has evaporated into sleeping late, waking early, taking in a zoom conference in a fully clad upper body with minimal make up, and an occasional midday nap. What was previously done in 5 hours is now achievable in under 3 hours. Graveyard sessions are gone, each job is meticulously executed, with a smile and pride, in (my) time— and I can bill with a smile. *The views expressed in this entry belong solely to the author.
RE-IMAGINING LEGAL PRACTICE IN A POST COVID-19 LANDSCAPE IN GHANA
*By Victoria Barth Managing Partner, Sam Okudzeto and Associates My daily routine as a lawyer involves in-person contact, ranging around client interviews, conferences and meetings, constant interactions with colleagues, brainstorming sessions, and interactions with support staff—all of which are critical to the running of a successful law firm. With the declaration of COVID-19 as a global pandemic, protocols for in-person meetings with clients had to be reconsidered, with as many as possible being achieved through virtual meetings and over the telephone. Assessing the Impact of the Coronavirus Restructuring on the Legal Profession in Ghana Legal practice in Ghana was not exempted from the restrictions imposed by President Nana Addo Dankwa Akufo-Addo under the Imposition of Restrictions Act 2020 (Act 1012). Pursuant to powers in Act 1012, Executive Instrument 65 was announced, which imposed restrictions on movement in the Greater Accra and Greater Kumasi Metropolitan Areas. Although members of the judiciary were exempted from the lockdown, lawyers were not deemed as “essential” services to be granted an exemption. Following the President’s orders, the Chief Justice issued a press release under SCR 176; clarifying how the judiciary was going to function under the lockdown measures. While some courts were going to be functioning, and judicial staff would be working, lawyers, litigants and court users were included in the restrictions imposed. Paradoxically, it was not clear how well the judicial system would function without lawyers and litigants. With the exception of 28 courts in the designated regions, all Registrars were to adjourn cases in this period to May and June 2020. Designated courts were mandated to deal with critical cases, classified as breaches arising from restriction orders and other criminal matters. The Supreme Court and Court of Appeal were to deal with select matters determined by the Chief Justice, while court registries were to remain open. The lockdown measures have led to changes in the legal landscape, some of which will last for a long time. From a litigation perspective, the lockdown measures largely brought litigation to a screeching halt. The directives issued were unclear and give rise to many questions; are the pending cause lists suspended and the court mandated to deal only with these matters? Are the courts still operating as normal only with additional mandate? Have urgent/critical cases from other courts affected by the lockdown been transferred or assigned to the designated courts? Does it mean that lawyers are still required or permitted to take on cases and appear in respect of breaches of the restriction orders and other criminal actions? Are lawyers exempt from the restrictions for this purpose? There are also serious implications for litigants who might have time-sensitive claims and it is unclear what processes have been put in place for filing and serving notices. For lawyers in active litigation, court attendance poses a great challenge due to persistent overcrowding, unlimited in-person contact, hand-to-hand contact in exchange of documents, and conversations with clients and other court staff. As long as the courts are operative, there is an obligation to appear before the judge, despite the risks. We also had to adopt international restructuring measures ways of mitigating and limiting contact by reviewing our case list and diaries and re-organizing according to priority. We also contacted opposing counsel and agreed on adjournments where possible, and where feasible, we made agreements between counsel to limit time spent in court. Probably the least affected area of our practice is the corporate division – since most of the work is in the form of transactional advice and services, preparation of opinions and correspondence on ongoing litigation, most of which has currently paused. Most of these corporate transactions and meetings can be accomplished over the phone, via zoom, and email. Measures to Navigate Covid-19 Changes With the first case of the coronavirus announced in Ghana, apart from having to distance from clients, we were faced with the reality of having to distance from each other, which resulted in canceling weekly office meetings to avoid overcrowding and close contact in our offices. Our firm has had to make a quick transition to increased reliance on technology for in-house work. Work done remotely is supervised via electronic communication and virtual media. We maintained a skeleton support staff in the office to receive deliveries, processes, and complete filings. We also increased client communication and reassurance of no compromise in service provision. The Firm is organized by teams, so logistics of case management are decided on a team by team basis, thereby allowing for a minimum number of lawyers at each appearance. The key aspect of our work has now shifted to mostly taking opportunity to complete submissions due far in advance in anticipation of the workload when court resumes. Future Projections Globally, the legal profession has a reputation for being notoriously traditional, but the COVID-19 pandemic has demonstrated that when pushed, it can alter entrenched methods of service delivery and other ways of doing legal business. The challenges to legal practice occasioned by the COVID-19 pandemic, creates an opportunity for discussions across the legal and judicial professions on how to make drastic short, medium, and long-term changes to the practice of law in Ghana. Some anticipated changes include: 1. An increase in electronic and virtual meetings and reduction in person to person contact. 2. Force an immediate addressing of the question “Is the court a service or a place?” 3. Effective digitization of the court system as the catalyst to e-justice delivery. 4. Increased competition for clients in the aftermath of COVID-19. 5. Consumers of legal services will be seeking adaptative and practical solutions from their lawyers. 6. Differentiation will become important as legal service provision falls into homogeneity, with the artificial divides between corporate departments and litigation firms dissolving. 7. Data protection and medical negligence arising out of the pandemic could become key areas of practice. 8. The increased reliance on technology could result in technological glitches increasing the potential for undue delay in litigation. As legal practitioners are scrambling to handle these changes, we must also think of the impact of these changes on our clients. Electronic communication and digitization disfavors literacy challenged court users who may or may not have access to technology. For most of our clients, being in the presence of their lawyer sends a sense of relieve and comfort. Lawyers would have to reimagine how we meet our client needs and service delivery that effectively uses technology, yet still remaining humane and client-facing. The law firm that will thrive in the post-COVID-19 legal atmosphere must be ahead of the curve. In the inevitable digital revolution that has already been kickstarted by the pandemic, law firms need to be client centric, collaborative, data-driven and technology enabled. Several challenges lie ahead, but also great opportunities and firms that are ready to take advantage will be pioneers in a reimagined legal industry. *The views expressed in this entry belong entirely to the author.
SOUTH AFRICA LEGAL PRACTITIONERS UNDER LOCKDOWN: IS IT TIME TO GO DIGITAL?
*Dimakatso Munthali Managing Partner, Munthali and Associates, Johannesburg, South Africa Life as we have known it for lawyers in South Africa, has changed. Lawyers are forced to think outside the box and find innovative ways to sustain their practices. For most, going digital might be the most viable, if not, the only option if they are to survive our current times. However, with our Courts, Universities and the overall structure of the average legal practice generally being geared towards manual systems, how then, within such an ecosystem, will lawyers be able to successfully implement any meaningful digital solution into the world of law? Consequent upon the Presidential announcement of the lockdown, legal practitioners, like most non-essential professionals, are to remain in isolation at their respective homes. As an exception, legal practitioners who are engaged in urgent litigation processes or the provision of “essential” legal services such as bail applications, maintenance and domestic violence related matters and cases involving children, must seek a permit from the Provincial Director of the relevant Provincial Legal Council. The restriction on freedom of movement means that legal practitioners whose field of expertise fall outside the ambit of the legal services identified as “essential” stand to suffer huge financial losses which will have catastrophic effects on employment, access to justice and the economy. Experts are of the view that businesses that invest in strategic, operational and financial resilience to emerging global risks will be better positioned to respond and recover. This is worrisome for legal professionals in South Africa who are governed by a system that remains largely unchanged and dependent on manual systems. Perhaps it is time to consider the digitalisation of courts? This includes remote trials through video conferencing, remote consultations and electronic systems which allow service and filing of pleadings. Court digitalisation aims to improve court performance and the efficiency and accessibility of legal services. In other words, lockdown or not, legal practitioners will have to develop innovative ways to continue operations. Although some of the courts have commenced with the digitalisation of service and filing processes, Courts in South Africa still largely operate on paper. Our judiciary needs to actively explore other measures for the enhancement of court performance, and the efficiency and effectiveness of the judiciary system to avoid a complete standstill of legal services during critical times where access to justice is desired. It is also time to infuse practice management and technology skills into the law school curriculum to encourage technological innovation. Legal education in South Africa is largely criticised for its disengagement with the profession by failing to prepare students for practice. In an era that requires innovation and technology, with lack of skills and technical know-how, legal practitioners are finding it difficult to stay afloat during this lockdown. It seems, in the current century, the success of a legal practitioner may be attributed to the practitioner’s ability to adopt and implement technological innovation within his/her practice. We, however, remain hopeful that the lockdown has encouraged legal practitioners to tap into creativity and entrepreneurial skills, making way for innovative responses to the current socioeconomic changes that have a bearing on our legal system. *The views expressed in this entry belong entirely to the author.
* Ebere Nwankpa A seasoned policy and management professional, and author. He lives in Abuja, Nigeria Before the advent of the novel coronavirus, crowded courtrooms in many well-trafficked jurisdictions that support high population centers was a way of life in Nigeria. The administration of justice and the conduct of court business in this era of increasing COVID-19 infections and fatalities, have to evolve to accommodate this new phenomenon called “social distancing” in order to facilitate continuity in the judicial administration of justice, even while the efficacy of the new regulations on “social distancing” continue to be refined. As a matter of nomenclature and description, the phrase ‘social distancing’ is weighed down by inherent intuitive limits at variance with natural human tendencies. It also portends a distinct emotional dissonance, at a time fraught with mental and psychological challenges. Hence, I prefer to use the term physical distancing instead. It is more factually apt, and elides the unsubtle insensitivity of the other phrase. As a matter of practice, in a world recovering from the depredations of the coronavirus, physical distancing is likely to persist as a prophylactic, even as lockdown regulations are relaxed around the world. What will these new measures and new way of life mean for the administration of justice and the conduct of business in courts by lawyers, judges, court staff and litigants? Congested courtrooms in particular, and legal premises that are the locus of heavy human traffic are especially vulnerable to contagion, sometimes with fatal consequences. Even court proceedings convened to administer new lockdown regulations and punish defaulters have failed notably to observe rudimentary physical distancing. Furthermore, as courts reopen, the dense backlog of suspended business will result in a rush. Courts are likely to be inundated with accumulated volumes and pent up demand for new court dates. The likelihood of physical and systemic overcrowding as a result is very high. This immediate outcome should be anticipated, planned for and avoided. In essence, the busiest courts in many jurisdictions will have to confront both short and long term problems around implementing physical distancing protocols where congestion once prevailed. Among many fundamental issues that should be discussed is whether a court appearance is necessary or required at all for litigation to be successfully initiated and completed. While fundamental issues around the administration and delivery of justice are pondered, more pressing and current issues will have to be met with speed and dispatch. Reliance on technology and remote applications will need to be maximized, entrenched and integrated into court proceedings. Court scheduling will have to be adapted to limit human traffic. Court accommodations will need to be redesigned to accord with strict physical distancing requirements. The handling of paper documents will need to be revised, and progressively eliminated. Marshaling and crowd control measures will need to be put in place for peak occasions. Frontline court staff will require adequate protection and assurances. These and more will need to be instituted without compromising the effective day-to-day functioning and cardinal mission of the courts—to deliver justice without delay. It is possible that there will be a period of flux and some uncertainty as new measures are incorporated. For the immediate, and future challenges iterated herein, a measure of understanding and forbearance will be a necessary imperative among all actors within the judicial and legal fraternity as they in turn educate their clients and the citizenry at large. * The views expressed in this entry belong entirely to the author.
CONTACT TRACING, DATA (IN)JUSTICE AND JUDICIAL OVERSIGHT IN UGANDA
*Maureen O. Mapp, Ph.D. Lecturer, University of Birmingham Law School, UK In April 2020, Laura Nagasha Barumba gave a disturbing account of data leaks by Uganda’s Ministry for Health. Information revealing the location of people quarantined for suspected COVID-19 was widely circulated without their knowledge or consent resulting in discrimination, and harassment for those affected. Laura was lucky to be let back onto her housing estate. In Senero village, Kalangala district, four hundred residents refused to receive Engineer Banya back in the village even though he had recovered from COVID-19. Local officials faulted the Ministry of Health for failing to design a cohesive reintegration strategy. These stories indicate a tension between contact tracing, data privacy and justice. Uganda’s Public Health COVID 19 laws do not specifically regulate manual or phone tracing, or contact tracing apps but by not anonymising data, then leaking it, the tracing method chosen to process information fails the privacy test, with dire consequences for vulnerable people. That the Ministry for Health is held responsible indicates an abuse of power by public officials. To prevent abuse of public power, the United Nations Special Rapporteur on Freedom And Rights, David Kaye, has suggested that new COVID-19 regulations should be subject to judicial oversight (and temporal limitations). South Africa has led the way with the appointment of Justice Catherine O'Regan as the COVID-19 Designated Judge mandated to oversee the protection of personal information and data privacy by public bodies while using mobile phone location data for tracing. It is too early to tell if Uganda will follow South Africa’s lead. Even so, to deliver data justice, Uganda’s COVID-19 judge(s) would need to investigate how data is managed at all stages of contact tracing: identification; listing; follow up; and discharge; to assess the contract tracing regime against both data privacy safeguards, and a social cohesion principles. Using the necessity principle, a judge needs to interrogate the design of the contract tracing system in respect to how personal data was anonymised; retained, and what happens to it after the quarantine ends. Data collection and transmission should not go beyond what is necessary to meet public health aims of reducing COVID-19 infections. By linking de-anonymised identifiers like phone numbers to (home) location data for example, the data fails the necessity test. Regarding reintegration strategies, the inquiry could draw on Principle 3 (f) Data Protection Act on transparency and participation of individuals in the processing of personal data including by non-automatic methods, and apply social cohesion principles of transparency and participation. Transparency begins with communication, using orality and local languages. So, measures to protect data and privacy of individuals, and communal interests should be explained in local languages. Similarly, individuals and locals should participate in discussions on tracing, including reintegration after names are removed from the follow up list. To guarantee data justice, judicial oversight needs to test the current contact tracing regime against necessity, transparency and participation principles. This approach should also be extended to contact tracing apps whose effectiveness is yet to be demonstrated. *The views expressed in this entry belong entirely to the author.
LAWYERING UNDER LOCKDOWN: THE CHRONICLES OF A JUNIOR FEMALE LAWYER IN GHANA
*Atchere Asuah-Kwasi Associate, G.A Sarpong Law Firm, Accra, Ghana The year 2020 was supposed to be a very promising year. Many resolutions had been made, challenges to be surmounted and goals to be met. It took the world by surprise when the “Invisible Enemy” struck at the Achilles heels of nation-states, bringing the “great” and “not-so-great” nations to their knees. Ghana was no exception, when in March 2020, the country recorded its first two cases of COVID-19. The worst was yet to be seen, yet business went on as usual, and with a few individuals taking precautionary measures when the reported cases started growing. As a lawyer who goes to court often, I took the decision to avoid taking the elevators in the High Court Complex in Accra, the capital city of Ghana. Call it an obsession, but I was armed daily with sanitizers and embarked on the “boosting immunity” journey. Not missing my daily dose of Vitamin C, drinking warm fluids and experimenting with breathing exercises. Under the direction of Justice Kwasi Anin-Yeboah, the Chief Justice of the Republic, the judiciary put in place some protocols to curtail the rising levels of infection. These measures were definitely not enough. My firm put measures in place to prevent its lawyers from being exposed to infection, by installing an automatic sanitizer dispenser, encouraging effective and constant hand washing for both staff and clients and reducing court attendance. Additional measures were taken to reduce staffing by implementing a shift system to enhance the effective practice of social distancing, and reducing work hours at the firm so that staff could get home early. On 27th March 2020, in the President Akufo-Addo’s 4th update to the country, the capital city, Accra, Kasoa, Kumasi and its environs were put on lockdown. President Akufo-Addo, by Executive Instrument 65, Imposition of Restrictions Coronavirus Disease (COVID-19) Pandemic (No 2) Instrument 2020, defined certain categories as essential services for the areas under lockdown. Lawyers did not fall within the “essential” category. Bottom line was that lawyers should stay home and stay indoors. The Ghana Bar Association (GBA), as part of its Continuous Legal Education (CLE), hosted a webinar on 9th April 2020, to discuss the impact of the COVID-19 pandemic on legal practice. It was commendable of the GBA, as they managed to use technology to reach a vast majority of its members. However, I expected the webinar to deal with certain pressing legal issues and challenges. The webinar in my candid opinion should have directed its speakers to expand on pressing legal issues such as the rights of employees of law firms, what happens to the concept of time, as it is an essential element in legal practice, and the labor rights of administrative staff of firms. At the macro level, discussions could have focused on what the law regards as “urgent” or “crucial” cases to be heard by the Courts that the Chief Justice had designated to be working courts during the lockdown. These are hard times without a doubt, and being a lawyer is no exception. For a lawyer who engages in active litigation, going to represent clients in courts is a daily and crucial part of my life. My work now has been limited to essentially writing briefs from home. The coronavirus outbreak is unprecedented and a novel situation for all. Every day is a new learning experience as I stay indoors, while we hope for this global infectious wind to blow away quickly. The lockdown has shown the major technological gaps in legal practice in Ghana, where most lawyers were not set up to work from home. For lawyers in active litigation and engaging with the judiciary on a daily basis, these new developments bring to the fore the need for digitalization of court processes to allow remote work that is secure, reliable and accessible. These times should be a catalyst for law firms to learn from the opportunities granted by the current condition on the urgency of adopting technological tools that will provide innovative ways of working and engaging with clients. In Ghana, despite the growing number of women lawyers, not many of them engage in litigation. The current COVID-19 situation poses a higher challenge for many female lawyers striving to make a mark in the field of litigation. If this current wave does not subside, many may turn to the field of corporate practice or other in-house counsel positions. The lockdown has been lifted, but Ghana’s case count increases by the day. I am still working from home and so are other lawyers, as firms have put in more stringent measures to reduce rates of infections. One cannot tell when it will be safe for legal life to return to normalcy. What the legal landscape in Ghana will look like in a post COVID-19 environment will depend largely on measures put in place now to increase the use of technology in law firms, and innovative ways of handling cases by the judicial system. *The views expressed in this entry belong entirely to the author.
*Fiona Atupele Mwale, LLM Judge, High Court of Malawi Malawi registered its first COVID-19 case on 2 April 2020. According to the latest press briefing issued on the 30th of April 2020, the country now has a registered total of 37 confirmed cases and 3 deaths. 7 have recovered and the rest are being managed by the health system. The pandemic prompted His Excellency the President to declare a State of national Disaster throughout Malawi on 20th March 2020 and to set in place various measures aimed at curbing the spread of the virus. Restricting public gatherings to less than 100 people, closing public schools and restricting travel were some of the measures put in place. Government went further to draft regulations and declare a 21-day lockdown on 15th March 2020. The lockdown was to take effect from 18th March until 9 June 2020 unless extended further. The implementation of the lockdown was however challenged by a human rights group that has obtained an injunction from the High Court. The injunction was initially granted ex parte for a period of 7 days on Friday 17 April 2020 pending an inter-partes hearing of the application for judicial review of the decision to lock-down. On 28th April 2020, the High Court heard the judicial review and sustained the injunction for a further 5 days, referring the matter to the Chief Justice to certify the matter to a Constitutional Court. Until the Constitutional Court makes its ruling, the lockdown cannot be enforced. Response of the Judiciary The Judiciary has responded to the pandemic by issuing a press release from the Office of the Chief Justice on 27th March 2020 issuing directives on the conduct of court business during the pandemic. The directives outline measures aimed at adjusting the operations and processes of the Judiciary with a view to minimizing the risk of infection to Judicial Officers, Members of Staff of the Judiciary, Legal Practitioners, other professional court users and public users of the court system. Among the directives are directives to Judges, Registrars, Chairpersons, Magistrates and Researchers to carefully review their hearing case lists and adjourn non-urgent matters in order to reduce the potential for crowding at the court premises. All cases, including Chamber matters (matters that are ordinarily dealt with in the office of the Judge/Registrar/Chairperson/Magistrate), are to held in open courtrooms and handled one at a time. Entry is restricted to only court officers who will facilitate the proceedings, legal practitioners, prosecutors, litigants, social workers, witnesses, accused persons and security personnel. Access to open court gallery is restricted with social distancing measures of at least one to two metres apart are to be put in place. Further, wherever practicable, and subject to law, court proceedings should be conducted by teleconference or video conference upon arrangement between the parties and the responsible Judicial Officer(s) having conduct of the matter. The Chief Justice’s directives have however not provided guidelines on how they are to be implemented, leading to individual judicial officers making judgment calls on what they consider to efficient and appropriate in the circumstances. Some registries such as the Principal Registry, Lilongwe District Registry, Zomba District Registry and other Magistrate Courts have also issued directions specific to their registries on measures to reduce social contact with no uniformity in approach. Each of these Registries have however directed that hearing of all non- urgent matters have been suspended. This has led to the Malawi Law Society on 24th April 2020, placing an inquiry with the Registrar of the High Court and Supreme Court on the inconsistencies with a proposal that the Judiciary should consider coming up with merged directions that should apply to all courts. My experience in implementing the measures There have been a number of challenges in administering court business in these difficult times. I have had the occasion to preside over a number of civil mediations in another city, Zomba. Considering that the High Court Civil Procedure Rules 2017 gives the High Court power to ensure active case management which includes under Order 1 rule 5 (5) (j) includes “making use of technology”, I presided over 40 mediation cases using teleconferencing facilities between the months of November 2019 and March 2020. Considering that at that time, the State of National Disaster had not yet been declared, the network was not congested, therefore quality of the connection was very good. The cases were therefore disposed of effectively and a reasonable number were concluded at the mediation stage. Another female Judge based in Lilongwe also managed to conclude 49 cases in Zomba using the same facility at around the same time. Whilst this indicates success in the efficiency of teleconferencing in avoiding face to face contact between the Judge and the litigants and their lawyers, I noted that the only contact that was limited was the vertical contact between the Judge and the lawyers. Horizontal contact between the clerk, the litigants and their lawyers was unavoidable as these persons still presented themselves to court and were assembled in the chambers in which the mediation session would have taken place had the Judge been physically present. As the parties presented themselves around the table to take their turn in presenting their views, no social distancing was practiced. Some of the litigants were female and due to their gendered care and nurturing roles, some had babies on their backs. As they sat in front of the Judge’s table next to the other litigants, the legal practitioners and the clerk providing interpretation, other litigants awaiting their turn in the cases that would follow were seated in the room in the chairs at the back. At one point I counted over 23 people in the chambers which although reasonably sized, should not have accommodated so many people. It is therefore in recognition of situations such as these that the directives from the Office of the Chief Justice have done away with chamber matters being heard in chambers. All chamber matters must now be heard in open court which have more space and parties who are not being heard at the particular time, must wait outside. Different Judges are applying the measures differently but all with the common intention of ensuring social distancing. On my part, in view of my experience with congestion, I have directed that all bail applications which were set before me, be heard on the papers. The parties will be required to file their documentation as usual; which I shall consider without requiring the legal practitioners to appear. I believe this is in line with the Chief Justice’s directives which expressly seek to reduce unnecessary overcrowding at court premises. Challenges in open court I have presided over three ongoing criminal trials and one matrimonial matter at the child custody stage in the period following the Chief Justice’s directives. These matters were set down to be heard through teleconferencing facilities. The teleconferencing facility that the court procured would have enabled all parties to appear remotely and reduced face to face contact. However, there have been a number of challenges which I list below with some possible measures to be considered. 1. Technical Challenges Due to the high demand for use of teleconferencing in this period, the service did not work very well. There were many instances in which the service was interrupted leading to the court abandoning the teleconference so that the parties could appear in open court. The administration is in the process of procuring the services of another more reliable provider, which process should be expedited. A strong and reliable internet connection will need to be considered. The administration should also ensure that the additional routers that Judges were issued to ensure connectivity at all times are connected at all times. 2. Social Distancing In the time that the teleconferencing facility did work, only the Judge was in a separate room from the rest of the parties. The litigants/accused persons still appeared in court where the size of the courtroom limits appropriate social distancing. In the criminal trial with more than one accused person, the accused persons could not fit in the dock and had to overflow to close proximity to the area reserved for the bar. Since the accused persons were coming from prison, they were accompanied by Prison officials for security purposes, increasing the number of persons in the courtroom. Some family members of the accused persons also attended, further increasing the numbers. In cases where there is more than one accused person, there was more than one defence counsel. Where a case has more than one defence counsel, adding in the marshall, a court clerk and an official court recorder in attendance, makes social distancing of at least one metre apart per person unenforcable in such circumstances. Further, in criminal matters, once the witnesses start giving evidence, there is a considerable exchange of documentation. The witnesses tender exhibits such as post-mortem reports that have been served on the accused persons. These are then passed from the prosecutor to the clerk to the witness and ultimately the Court. While I insisted that the clerk wear gloves in the course of the hearing (he initially did not), the other parties, including the Judge, did not wear gloves. Health services advice against the use of gloves opting for regular hand washing or sanitizing, but considering the state of some of the documentation that is tendered, some of which has blood stains, for the clerk, wearing of gloves which he should change regularly (and he did) is necessary. I also noted that wearing of masks is either not being done properly or ignored completely. I noted in court, some court users either wearing their masks wrongly (upside down, with the nose left out or very loosely etc.) or not wearing them at all. I also noticed frequent touching of the masks which are obviously uncomfortable and become even more so when one is in a non-air conditioned courtroom being cross-examined. I noted witnesses take off their mask to put on classes, handle a document passed on to them from the lawyer to the clerk to them, then taking of the glasses and putting on their glasses again. At some point I had to humorously threaten to fine any person who touched their face or a mask in my courtroom. Appropriate measures need to be considered for the rest of the court users and personnel so that they too can appear remotely. This will require reliable connection services with the Malawi Prison Service. Prosecutors from the Directorate of Public Prosecutions will also need to ensure reliable connection so that they too appear remotely and all exhibits are tendered electronically, the originals having been brought to the court in advance. This would reduce the risks to exposure posed by the current system. 3. Urgent Matters I have also experienced first-hand, one of the challenges that the Malawi Law Society has brought to the attention of the Registrar. One of the concerns of the Society is that definitive guidance should be provided on what actually constitutes “urgent matters.” Thus, the actual scope of cases that will be handled by courts during this time must be set out, clearly specifying what matters are in the category of urgent matters. My approach as a Judge sitting in a criminal division has been that criminal matters are by their very nature urgent matters considering the implications of such matters. However, there is a need for clear guidance on what should constitute urgency outside what might be commonly considered as urgent and what might not seemingly appear urgent. Nonetheless, in my view, in the absence of such rules, a party who finds that his or her matter has been adjourned and has not been scheduled for hearing in the immediate future has the option of filing an application requesting that the matter be heard and filing a certificate of extreme urgency to justify why the case is urgent because even if urgent matters or the category of urgent matters are listed, there will always be cases outside the list that might justify urgent attention in view of prevailing circumstances. Conclusion There is a lot that the judiciary still has to learn about managing court proceedings during the pandemic in order to adopt measures that offer the best protection to all involved. Health and disease prevention training conducted by experts might be a good starting point. A flexible approach needs to be taken so that as new lessons unfold, they inform future practice. * The views expressed in this entry belong entirely to the author.
*By A. Alvin Winford When the first case of COVID-19 was announced in Liberia in March, ordinary Liberians were of the initial thought that handling the pandemic would be mainly about preventative measures. Little did they know that the agony they experienced from State Security in the name of “law and order” during the heyday of the Ebola virus disease which swept across the West African nation would return in different form. Amidst the State of Emergency during the Ebola crisis, 15 year old Shaki Kamara was gunned down by members of the Armed Forces of Liberia in the shanty community of West Point in Monrovia. On April 8, 2020 President George Weah declared a State of Emergency in curtailing COVID-19. During a State of Emergency, the Liberian Constitution provides for the fundamental rights of citizens to be protected. Cognizant that some Governments could use the COVID-19 lockdown stringent measures to clampdown on their citizens; UN High Commissioner for Human Rights Michelle Bachelet in April urged States to prevent COVID-19 from creating wider inequalities amid extensive suffering. As reports filtered in of increasing State Security brutality against peaceful citizens in Liberia under the guise of breaking curfew as the result of the State of Emergency, the Civil Society Council of Liberia called on the Government of Liberia to stop brutalizing its citizens. Adding his voice was the former police chief who reminded the joint security forces that they were under mandate to protect citizens during the State of Emergency. These cautions came against the backdrop of police using excessive force in chasing citizens off the streets at the beginning of the lockdown in Liberia. While citizens and the police were clashing on one hand, the Armed Forces of Liberia which was brought in to augment the strength of the security forces were on the other hand taking laws into their hands leading to a woman being victimized. In Kakata which is about 43.5 miles from Monrovia, a pregnant woman was beaten by Drug Enforcement Agency for violating 3P.M. stay home order as the result of the State of Emergency. Even children are not being spared from the brutality. In the West Point area of Monrovia, a family of a three year old child who died as the result of police brutality during the State of is yearning for justice. Besides State Security brutality, there are concerns that as family heads lose income, children and women would be more vulnerable to violence as much attention is now on COVID-19 and not domestic and sexual violence. To worsen the situation, the school which provides some form of protection for children is closed. Also, there is mounting concern that being that girls are not in school, the likelihood of they being vulnerable to forced and early marriage is high. This anxiety is confirmed by the World Bank when it affirmed that every additional year of secondary school may reduce marriage for the girl child before reaching 18 years by five percent or more. While the State of Emergency is important in addressing the threat that COVID-19 poses, if caution is not taken by the State in protecting its population against security excesses, the envisaged good intention would be a mirage. The protector must refrain from being the abuser; and when that happens the fight against COVID-19 would be a collective one and it is only with the support of the vulnerable population that an enemy such as COVID-19 can be overcome. Draconian measures against the vulnerable population is not the solution to the fight against COVID-19. A. Alvin Winford is the Program Manager at the Non-Profit African Network for the Prevention and Protection against Child Abuse and Neglect (ANPPCAN) Liberia. He is currently a Hubert H. Humphrey Fellow at American University - Washington College of Law DC where he researches on trafficking in persons especially women and children, and the public harms of pornography in Africa. The views expressed in this entry belong solely to the author.
The Paradox of Multicultural Vulnerability: Gender Justice and COVID-19 in Ethiopia
*By Temelso Gashaw Getahun “The world's most popular man reaches 80 and ponders buying a wife in exchange for 60 cows.” This was how Nelson Mandela's marriage had headlined by the Western media in 1998. Mandela’s prioritization of constitutionally recognized local customary legal system of marriage had led to the questioning of his struggle for freedom which is an aspirational experience to the world. Such imprudent characterization of indigenous law and institutions stems from the conception that all customary and religious laws are an affront to the rights of women. Under normal circumstances, it can be argued that parallel operationalization of local customary and religious laws with the formal legal system does not necessarily disadvantage Ethiopian women so long as these normative orderings are harmonious with international human right standards. However, due to the COVID-19 global pandemic, courts around the country are either closed or operating under new hours with limited types of cases being heard. The unfolding unprecedented global situation is widening the justice gap in general and affecting women's access to justice in particular. Under the condition of keeping an adequate physical distance between disputant and arbitrators, non-state adjudicatory mechanisms can play a significant role in filling such gaps, if measures are taken to adequately provide the needed distancing and healthcare measures in such customary adjudicatory hearings as well. From the cumulative reading of Article 9(1) and Article 91(1) of the Ethiopian Constitution, we can understand that legal pluralist ethos had extensively been considered during the process of Constitutional formation. Besides binding international treaties ratified by Ethiopia, these provisions impose an obligation on the government to “support, the growth and enrichment of cultures and traditions that are compatible with fundamental rights, human dignity, democratic norms and ideals” The Constitution has also recognized the possibility of adjudicating personal and family matters through customary and religious laws. However, there have long been debates regarding such wide range recognition of non-state law and institution. Rakeb Messele argues that it will ultimately have detrimental effect on the rights of women reasoning that religious and customary laws are still discriminatory and oppressive. The possible conflict between recognition of the informal justice system and individual rights of vulnerable groups such as women and children creates what is best described as “the paradox of multicultural vulnerability”. It has been suggested by Celestine I. Nyamu that the best mechanism of resolving such paradox is to subjugate customary and religious norms by declaring them illegal. Scholars like Donovan and Getachew, on the other hand, endorses the coexistence of various normative ordering in one political space even beyond its current scope. Despite their discriminatory nature, a study conducted in 2012 found that most women prefer customary institutions over the formal legal system. For anyone who has preconceived opinions about women’s choice in accessing justice, this finding may cast doubt. Different factors affect the choices women make in seeking justice, among them, is women’s fear of social repercussion—where in most communities, women’s prioritization of the formal legal system is perceived as disrespect to the local elders and this ultimately creates social pressure. The second factor is the lack of widespread community legitimacy of the formal justice system akin to its weak enforcement of decisions. Thirdly, for a large proportion of the rural population, the formal justice system is over-burdened, time-consuming and expensive. Hence, the modern legal apparatus has very limited outreach to grassroots communities. On the contrary, the cultural and religious justice system provides an option that is more readily available – in terms of cost, vicinity, language, shared culture and values. The issue of gender justice is imperative, and it should not be underestimated in any way, and measures should be put in place to ensure that customary legal systems are gender sensitive. Nevertheless, exclusive reliance on the modern legal system and abundance of traditional law and institutions may not be the solution particularly during a global pandemic. The only sustainable way of averting such problems, and to plan for effective future utilization of customary legal systems whether in a time of global crises or in “normal” times, is to engage in transforming the attitude of the community through dialogue and consultation instead of throwing away their rules and dismantling their institutions. If the goal is to make legal systems sensitive to women and gender issues, we should look to overhaul all legal systems, and not focus only on the statutory courts as the best arena for enforcing women’s rights. Temelso Gashaw Getahun is an Assistant Lecturer at Mizan-Tepi University (Ethiopia).Currently,he is pursuing his LLM degree in International Human Rights Law at Central European University. The views expressed in this entry belong solely to the author.