COMMONWEALTH 2022 FORUM ON E-JUSTICE: SOME REFLECTIONS

BACKGROUND

The Covid 19 pandemic ushered in several challenges, changes, and improvements, and among the souvenirs that it left is, digital advancement across all sectors. Consequently, a scholar like Florence Ogonjo expressed curiosity about how this leap will contribute to access to justice and fairness. The 26th Commonwealth Heads of Government Meeting 2022 (CHOGM2022) held in Rwanda featured several fora and sessions. Of great interest is the forum on Access to Justice and Tech which discussed the future of e-justice in Commonwealth countries.

The Forum appraised strategies for facilitating access to justice. It aimed to leverage the different technological advancements to bring justice closer to the needy, especially members of vulnerable and marginalized communities. Through this forum, the Commonwealth convened various stakeholders in a panel discussion including, the Hon. Chief justice of Rwanda, Dr. Faustin Ntezilyayo, the President of Uganda Law Society, Ms. Pheona Wall Nabasa, Prof. Luis Franceschi, the Assistant Sec. Gen of Commonwealth, and, Brian Speers the president of Commonwealth Lawyers Association moderated the event.

MAIN POINTS OF CONCERN

The discussants interacted with the digitization of judicial services (e-justice). For context, they spotlighted e-justice systems in Rwanda and Uganda, e-justice as a practice, and its ethical concerns.

1. Digitization of judicial services

The honourable Chief Justice of Rwanda applauded the COVID 19 pandemic as a factor that proved that justice should be consumed as a service and not be regarded as a victim of geographical constraints. He noted that tech should bolster access to justice rather than create barriers to justice. His latter concern on barriers to justice through tech is evidenced by asymmetric literacy levels and paucity of internet and computers.

Justice Ntezilyayo highlighted three key technological developments that strengthen access to justice in Rwanda, and they include:

• The Rwanda Integrated Electronic Case Management System (IECMS): This was introduced in 2016 as a single database for all judicial decisions in Rwanda be it from the courts, the national public prosecution authority, the Rwandan investigation bureau, the correctional services, the civil litigation service of the ministry of justice, and the Rwandan Bar Association. It helps with online summoning, calendar notification for court proceedings, online access to judgments, and online proof of no appeal. The Hon. CJ clarified that Rwanda is in the process of integrating virtual court sessions within the IECMS for hearings, transcriptions, digital signatures, stamping, optical character recognition, and blockchain.

• The Judiciary Performance, Monitoring & Evaluation System (JPMS): to measure the courts’ performances and actively monitor strategic plans of the judiciary. This is a daily tracker that is available to the public. It fetches and uses data from the IECMS to measure performances.

• Ask the Court: a mechanism designed to follow up on procedural issues in the judiciary and respond to actions against corruption.

In Uganda, two solutions were highlighted. First, is the Pro bono App called PULIDAWO which directly translates to ‘Your Lawyer’. This is a platform that allows lawyers to provide pro bono services and be rated by clients, similar to Uber. Young lawyers tend to grow through this app and seasoned practitioners also use it to give back to the community. Hence, it incentivizes practitioners and widens the narrow way to access justice, especially by including financially challenged individuals.

The second innovation is the Law Box, a service championed by Barefoot Law, a law firm in Uganda. The Law Box is an innovative remote legal services provider that bridges the digital divide by bringing conventional internet and live-streaming platforms to remote communities. This is targeted towards helping them access lawyers residing in Kampala, the capital city. The system uses a box of shipping containers converted and fitted with furniture and visual and audio teleconferencing equipment. While speaking, Gertrude Lamunu, Barefoot’s Head of Communications, noted that access to justice is not about the intensity of the technology but the existence of options. The box fills this niche.

2. Ethical concerns

Hon. CJ Ntezilyayo cautioned the advocates of this change about the ethical considerations that underscore such worthy pursuit. Among other threats are, lack of vast public awareness, lack of public trust, data leakage and mismanagement, electronic file retention/loss, cyber-attacks, AI biases, etc. Similar to the hallmark of every innovation, these are challenges that ought not to dissuade the digitization of justice, instead, they are to assist in streamlining progress. Above all, he buttressed public trust as the hallmark of e-justice systems.

Prof. Luis Franceschi expressed that lawyers seem to be in front of access to justice while leaving many behind. However, the pandemic was not a disruption that society wanted but definitely one that it needed. “Lawyers are not necessarily mandated to go to court, but they are mandated to foster justice”, he said. This resonates with Ms Pheona’s accusation against the Bar Association of Uganda for being selfish by making the bar school difficult for law graduates which then translates to the low ratio of lawyers to clients. The ratio stands at 1 lawyer: 30 thousand residents.

Additionally, Ms Pheona faulted the current system that pushes all cases to courts without adequate infrastructure to discharge them expeditiously. According to her, the average duration of a commercial dispute in Uganda is 5 to 14 years. As an ideal alternative, Prof. Franceschi presented the case study of eBay. He stated that in 2021 eBay resolved 65 million disputes online without the need for lawyers. This is similar to an annual estimate of disputes that it continues to resolve for over a decade now.¹ Hence, a specimen to show how justice does not automatically demand the involvement of lawyers and the court but a service that can be consumed without unnecessary strictures.

Prof Luis further notes that tech is not an end but a means to an end. This calls for the sanctification of the justice system before digitization “lest the society digitizes a mess”. An imminent concern to reform, and then digitizes while being cognizant of the notable vast digital divide in the developing countries.

SOME REFLECTIONS

The forum presented more challenges than solutions. The ethical concerns, inequitable access to the internet and electricity, and low literacy level are all barriers that will be reinforced by e-justice systems. The Commonwealth Business Forum on “bridging the digital divide” shed some light on this murky water. The session featured the Hon Prime Minister of Jamaica, Andrew Holness, and brought together several industry leaders and entrepreneurs.

1. Last mile connectivity and inclusivity

Mr. Yonas Maru, the CEO of BCS Group expressed his frustration with governments that stall digitization by delaying or denying developers licenses. This raises the question of if the government is intentional about digitizing services such as justice, why is it arduous for investors and developers to be licensed? Additionally, Ralph Mupita, the President and CEO of MTN Group blamed lack of collaboration and insufficient regulation for the slow pace of developers in achieving the last mile connectivity in the remote communities. His sentiment also supports Ms. Pheona Wall’s claim above that most barriers to e-justice are artificial and exist to benefit a few members of society.

Policy considerations that attract innovators are hence the first step to bridging the digital and literacy divide that impedes access to justice. This brings to memory the Huduma Namba exercise in Kenya, which was rolled out without proper legal safeguards. Hence, the rollout had to be halted for want of data protection impact assessment.² On the one hand, the decision to halt the initiative is exigent for data governance and data protection. Further, this helps to prove that some delays by policymakers to grant licenses can be a justifiable prudent decision to protect the public through due diligence. Based on this, the author agrees with Ralph Mupita on the need for adequate collaboration and understanding between developers and policymakers. In the absence of dissonance, unnecessary delays that debilitate investors will be circumvented.

2. Digital identification and public trust

The Deputy Director of Unique Identification of India, Dr. Amod Kumar, zeroed down on digital trust as the foundation of any digitization. He highlighted the Indian Aadhaar Card. The Aadhaar is a Digital Identification (DI) method that can be likened to Kenya’s Huduma Namba attempt. He concluded by noting that every country needs a DI mechanism, and he encourages the international community to adopt and develop an international DI standard. Lack of public trust has been frowned upon severally by stakeholders like the Hon CJ of Rwanda who cited the IECMS as a response to the challenge.

Especially in a world where virtual courts will thrive, there is a dire need to reduce illegalities in the justice process. Digital identification is vital for electronic filing in courts, digital signatures and so more. Unfortunately, some countries, including Kenya, are yet to reinforce the foundation to attain this height.

3. Language inclusivity and user-friendliness

Language and literacy are interconnected. Ralph Mupita, the President and CEO of MTN Group expressed that illiteracy fuels the low adoption of technology and he encouraged innovators to create services in local languages. According to Hardy Pemhiwa, the CEO of Cassava Technologies, “we are literate in our own languages”.

In a similar fashion, the author believes that more can be achieved if governments and investors collaborate to support institutions like CIPIT that produce local content for the average consumers. For example, given the prominence of Swahili in the East Africa Region, CIPIT develops Swahili content on Intellectual Property and Information Technology. In an era of e-justice, those who can read and write only in local languages may suffer further exclusion if the services they seek are in foreign languages. For example, Kenyalaw includes Swahili Press Release, but does not extend this language option to its case reports. The availability of options is the best way to include the marginalized and less educated demographics, and the language barrier creates the worst form of exclusion. However, there is no doubt that vast language inclusion has its financial burden.

4. Electricity and efficient data transfer

The CEO of Cassava Networks insists that digital divide cannot be solved sans first solving the electricity divide. He proposes the use of Optical Terminals across rivers like in Brussels and Kinshasa as a way to connect the excluded. Similarly, he expressed his dissatisfaction over data that leave Africa and highlights that Africa can further connect the excluded by reducing the cost of transporting data and this is only possible if data remains in Africa. His latter concern is primarily crucial for e-justice if regional and domestic courts must interact. Data transfer between those two levels can be made seamless and cheaper. Additionally, reducing the cost of data transfer is an important milestone to steer e-justice convenience.

CONCLUSION

Going digital in a non-digital world, especially with regard to justice, can indeed be challenging. However, the challenges with e-justice are lesser than its benefits. Whereas the Access to Justice forum presented great possibilities for e-justice and invited innovators, the views of the innovators were captured via the Business Forum on Bridging the Digital Divide. In the words of Prof Luis Franceschi, the pandemic present this need to innovate, and it is a pursuit that justice had always hoped to accomplish through convenience and fewer barriers.

As I have noted through another platform, I believe that one of the main drawbacks to an effective and convenient e-justice system is the evaluation of evidence. This is especially material evidence that requires physical evaluation and electronic evidence that begs forensic evaluation. Similarly, there is the issue of privacy since some matters are overly sensitive, for example, issues involving minors. This calls for extra measures in a world of digital courts. Despite the challenges, the future of e-justice is not grim but far from that. Justice is a necessity, it is delicate, and justice is expensive. Nonetheless, e-justice must continue to thrive.