Introduction

All court systems globally are facing the same challenge in dispensing justice during the COVID-19 Pandemic. For the first time since the Spanish Flu, the U.S. Supreme Court has postponed all hearings and has shut down operations until further notice. The effects and aftermath of the 1918 Spanish Flu pandemic seem to be reoccurring in the form of the COVID-19 forcing various institutions, including the courts, to shut their doors. The impact of the pandemic is likewise affecting all judicial systems across Africa which have had their day to day operations disrupted. Through the indefinite suspension of court hearings, COVID-19 has added yet another barrier to justice putting key rights at stake.

With 52 African countries currently with recorded cases, governments continue to roll out increasingly aggressive measures to halt the spread and to contain the devastating pandemic. As at 22 April 6:00 GMT, confirmed cases of the COVID-19 have risen to 24,696, the number of deaths stands at 1,193 and lastly those recovered are 6,415. Economically, the outbreak has been so disruptive to supply and demand chains that sub-Saharan Africa looks to be headed into its first recession in 25 years.

The aggressive nature of COVID-19 makes it difficult to predict how long services will remain at a halt. The WHO reports that African countries have made the critical move from COVID-19 readiness to proactive response, but the manner of this movement has sometimes left a lot to be desired due to significant human rights abuses in the implementation of prophylactic measures. Even with improved enforcement, the postponement of cases is an impediment to justice that is predicted to continue into the foreseeable future. These concerns led us to look into how legal systems within sub-Sahara Africa are coping with the disruptive effects of the outbreak.

Access to justice is an important part of Africa’s social and economic development plans. As the African Continental Free Trade Area takes shape, securing the rights of Africa’s diverse peoples will be an important contributor to the trust and confidence needed for a truly pan-African economy. COVID-19 poses urgent challenges to Africa’s judiciaries whose resolution can carry forward to form the basis of an accessible, sustainable, and modern justice system for the continent.

How are African Justice Systems Dealing with the Pandemic?

Courts across the world are struggling to deal with physical appearance and court holdings. While most courts have resorted to digital justice, others have opted for a full-on suspension of proceedings.

Nigeria, having confirmed Sub-Saharan Africa’s first case of COVID-19 on 27 February 2020, ordered for the indefinite suspension of all court sittings from 24 March. This is to the exclusion of matters that are urgent, essential or timebound under Nigerian law. Similarly, this was recorded in Uganda where court proceedings were suspended but urgent matters, such as the violation of COVID-19-related regulations, are still being heard.

To curb the halt injustice, most African courts have released official statements that permit the hearing of ‘urgent matters’ only. In many judicial systems, however, clarification on what these matters include is needed to ensure that justice is not delayed.

The South African Judiciary has published one of the most comprehensive directives on court operations during a pandemic. According to Chief Justice Mogoeng Mogoeng, the courts are to remain open and operational to a limited extent. ‘The Directions’ having been published in consultation with the Minister of Justice and Correctional Services, outlines a list of what matters shall go on during this pandemic. A key part of the comprehensiveness of the South African directives is the centrality of consultations in the development of the policy. Lockdowns, not just of courts but also of other areas of life, must be considerate of citizens’ ability to abide with reasonable comfort. The High Court in Malawi, for example, temporarily restricting the government from implementing a state lockdown challenged by human rights advocates. The court found that the government failed to implement safeguards to cushion the poor from the livelihood-threatening impact of the lockdown.

The Malawi example is illustrative of the sleepless role that courts have as guardians of justice in their countries. Outright shutdowns of African justice systems are not tenable, and neither are vague directives that see justice denied to those who need it the most in these perilous times.

Digital justice, a much-vaunted but poorly implemented upgrade to access to justice in Africa, is one of the safest ways to improving access to justice. It has become much more urgent now and could be an important ally to conscientious directives in the near future as African justice systems respond to COVID-19.

Africa’s Progressive Move towards Digital Success

It is globally recognised under UN Sustainable Development Goal 16 that courts should seek to promote the rule of law, strengthen institutions and increase access to justice to promote development and economic freedom. In line with this goal, as we look forward to the ‘Africa we want’, the African Union’s 2063 Agenda projects a similar tangent to strengthen the Rule of Law in Africa.

This pandemic can, therefore, be observed as a mere catalyst that both shows the sense and accelerates the implementation of digital justice across Africa. Recent efforts to introduce technology in justice systems across Africa are evident.

The Court of Justice of the Common Market for Eastern and Southern Africa (COMESA) and The South African Office of the Chief Justice (OCJ), are known to be at the forefront of the judicial digital revolution in Africa. Having utilised a software known as CaseLines, these courtrooms are slowly eliminating the use of paper by introducing a digital platform that helps present multimedia evidence, collaboration tools for pre-trial preparation and secure virtual hearings.

Making the Justice System ‘Smart’

The COVID-19 pandemic is teaching us that traditional means of justice can be upgraded. Judicial transformation is a holistic process that requires the integration of different administrative, financial and policy factors. With adequate financial support to implement digital infrastructure, train staff members and upgrade software, a sustainable structure for digital justice can be achieved.

Ensuring that court ecosystems are built around user-friendly digital technology would go a long way to ensure people on the African continent have access to justice. Considering that Africa’s technology industry has rapidly grown by over 50% in the past few years, there is a capacity for African-led digitalisation of the continent’s justice system. Increased cooperation with local technology hubs could develop solutions that continue with the promise that digitalisation has shown in:

Digital Courtrooms

Access to the justice system is in many ways contingent on physical access to courtrooms and other dispute resolution fora. What came with this was long delays in cases that approximately 60% of claimants in Africa have experienced. However, video conferencing and virtual presence tools have been a huge partner of justice during the closure of courts. By enabling parties to a case to participate from remote locations, virtual attendance is facilitating the determination of matters following the COVID-19 lockdown.

Court sessions have been conducted virtually using communication technologies such as Skype and Zoom with an intention to keep the justice system running and curb transmission of the virus in courtrooms. Several Kenyan courtrooms are utilising technology to provide continuity of operations in delivering justice. In the Mombasa High Court, Kenyan Judge, Eric Ogola delivered 23 judgments in his chambers through Skype on 30 March 2020. Sessions continue to be determined online which even led to the release of 4800 prisoners to reduce the possibility of COVID-19 infections within the prison system.

Capture and Presentation of Digital Evidence

Otherwise termed as multimedia evidence, digital evidence has featured more and more in recent times as courts across Africa evolve to cater to their rapidly digitalising societies. With a multitude of information surfacing the internet, rules have been established to regulate the admissibility of digital evidence.

In addition to this, applications have been established to enhance the credibility of digital evidence en route to using technology to promote human rights. A successful, example of this is the ‘Eyewitness to Atrocities’ application. On 21 September 2018, a major success was achieved when a Court in the Democratic Republic of Congo (DRC) convicted two militia commanders of crimes against humanity after admitting incriminating photo and video evidence recorded with the Eyewitness application.

Similarly following the digital trend, The International Criminal Court (ICC), issued an arrest warrant in 2017 against Libyan commander Mahmoud al-Werfalli for war crimes primarily based primarily on video footage posted to social media showing the alleged crimes. By 2011, the ICC Office of the Prosecutor had been using digital evidence from Kenya, Libya and Cote d’Ivoire where widespread mobile allowed for compelling evidence on human rights abuses to be captured.

While digital evidence has been used in a number of jurisdictions for a while now, it can play an even greater role in facilitating access to justice when in tandem with digital courtrooms.

Cloud Applications and Online Management Systems

Cloud storage and processing is already being used for a number of applications that are rapidly improving lives across Africa. Owing to the sensitive nature of court documents, and the conservative nature of traditional justice, it is difficult to justify the transition into online data storage. However, we are now seeing an increase in the use of Artificial Intelligence features in case management systems to add efficiencies in sorting through massive information sources. This has revolutionised the ways in which large organisations store, archive, process, and extract information while also providing enhanced security features.

As for the latter, there are a number of African based software companies that are investing in establishing online law firm management software. Widely used services such as WakiliCMS and Sheriasoft are extending their services throughout Africa. Providing services ranging from client and file management, client invoicing and payments, these are some of the ways the justice system aids in establishing an integrated digital process of tracking case actions.

Digital legal information storage and management systems can be an important part of a digital justice system that automates a lot of the preparatory stages of settling a court case.

Access to Public Information and Use of Interactive Citizen Service Portals

Citizens understanding the legal system and what rights they are entitled to are indispensable elements of the rule of law. It is unfortunate that 47% of sub-Saharan Africans do not understand legal procedures and the due process owed to them as they seek justice. Further, Afrobarometer highlights that 54% of Africans have difficulty obtaining assistance in courts. Implementing a virtual help desk would assist individuals to know the status of their court proceedings.

Digital tools can help citizens access relevant information on the law, the justice system and its procedures, and how to act on their rights. Online portals such as this pan-African legal repository offered by Oxford Bodleian Libraries can be an encouraging starting point for many Africans that do not know how to act on their rights. Greater adoption of digital legal information repositories and online case reporting is a challenge that many African judiciaries are taking up. Digital pan-African repositories, such as the African Law Library, will be useful to not just citizens claiming their rights but also to Africans interested in employment or business opportunities in other African states. It could help secure the confidence to move capital, goods, and labour across borders as envisioned in the African Continental Free Trade Agreement.

These are some features that judiciaries could implement to enhance public information even beyond this access. A significant proportion of Africans already have digital profiles across multiple platforms that are used for communication, business, employment, banking, and accessing e-government services. One that is particularly exciting is personalised portals that can give specific information about the court system and the progress of an ongoing case remotely. Specifically, accessing justice in the midst of the COVID-19 pandemic could be helped as profiles are a low-bandwidth alternative to attendance through video conferencing.

‘Post-Litigation Strategy’: What to Expect After the Pandemic

The shutdown of ordinary court sessions in light of the COVID-19 pandemic is going to add more cases to the long backlog that is already frustrating many African judiciaries. As pressure mounts to seek justice, we should expect an avalanche of ‘corona litigation’ to be the new reality for the next few years.

A broad range of cases are likely to be lodged, ranging from tortious claims against the government for failing to control the outbreak, against law enforcement who committed human rights abuses, from citizens who were unfairly terminated or evicted, and from businesses that suffered from breached or frustrated contracts.

A lot of Africans will have a need to access the justice system, and African legal systems will have a lot to face and overcome in the near future. Improving the digital capacity of judiciaries, therefore, helps improve access to justice during the COVID-19 lockdown and could potentially play an important role in helping Africa recover from the pandemic. Improving intra-African trade has been a long-term goal for breaking the cycles of poverty and instability that have held the continent back. COVID-19 has brought certain improvement opportunities to light as not just great ideas but urgent innovations. Affordable and timely access to justice is one such pressing need that these perilous times have helped us acknowledge. Africa has the technological capacity to take these lessons and not just survive COVID-19 but come out better off with stronger, more efficient, modernised judiciaries whose dividends move us closer to the future we want.