How Covid-19 exposes digital divide in corridors of justice

Nakuru judge Joel Ngugi (bottom left) presides over a case from his home via Zoom link with the Nakuru GK Prison (top left) and the Nakuru Law Courts boardroom (top right) on April 2, 2020. [Daniel Chege, Standard]

Gabriel Wakibia filed a petition in a High Court in Nakuru in September 2019. About 18 months later, the case is yet to kick off, thanks to Covid-19 pandemic that led to the closure of courts.

Wakibia says he has been following up the petition since July last year, and it took the indulgence of Nakuru presiding judge Joel Ngugi to schedule the case for mention.

“A January 2020 directive for any interested parties willing to join the case was not effected until October 2020,” he says.

On March 16 last year, a few days after the first case of Covid-19 was reported in the country, then Chief Justice David Maraga ordered courts shut, barring litigants from attending sessions and scaling down the number of staff accessing courts premises.

The Judiciary soon went digital, and remote court proceedings became a reality in a bid to ensure the justice system is not crippled.

Proceedings on Zoom became the order of the day, as the elderly and children aged below 13 years were banned from accessing courts premises.

The Judiciary also introduced an email filing system for civil cases.

However, for 62-year-old Wakibia, technology is a challenge, partly because of his advanced age and partly due to poor network coverage in the remote parts of Nakuru County where he lives. He is therefore unable to attend video-link sessions, neither can he afford a lawyer to follow up the matter on his behalf.

Forced to attend court over 10 times last year when his petition was slated for mention, Wakibia exposed himself to the dangers of being infected with the coronavirus.

“I have had to attend sessions using the court gadgets. I once tried using my friend’s mobile phone but the interruption of his phone ringing and poor network were frustrating,” says Wakibia.

He now urges courts to give priority to the elderly and litigants without representation.

The Zoom link allows video conferencing that can accommodate up to 100 people. “Without disconnecting and freezing of videos due to poor connections, the application is efficient and effective,” says Eric Omondi, an Information Communication Technology (ICT) officer in Nakuru.

However, a year later, the digitisation has exposed the differences between the haves and the have-nots.

According to the Rift Valley Law Society of Kenya (LSK) chairman Ochang’ Ajigo, the online shift has caused a divide in terms of location, class and age. “We are not pleased with the court reforms. The digital shift has only favoured those who can afford gadgets to enter the video link sessions,” says Ajigo.

He says people who are unable to use the gadgets or cannot afford them and those in rural and remote areas have been discriminated against.

He urges the Judiciary to put in place measures to accommodate every court user and ensure fairness in administration of justice.

In Nakuru, only two of the 19 courts have two big screens each for the video link. The rest use 14- to 21-inch screens.

Twenty lawyers interviewed preferred open court processes, especially in criminal cases and civil suits that require cross-examination.

Ajigo says lawyers and litigants prefer facing their opposition in court, especially during cross-examination.

LSK Council member Kipkoech Ng’etich says Zoom is only efficient for case mentions and simple applications but should not be used for hearings.

Last month, Emurua Dikirr MP Johanna Ngeno’s case was deferred since the lawyers wanted to conduct his trial in an open court. “As much as lawyers fear being exposed to the virus if they attend court, most of them are slow to change and work well in open courts. It is understandable considering it has been the traditional system,” says Ng’etich. He says many hearings have been deferred in the last one year and if nothing is done, litigants will have to wait for years to get justice.

He urges the State to swear in 41 judges appointed to the Court of Appeal as soon as possible to help reduce the cases backlog.Joseph Kamau, a court user, says the online system is unfavourable, especially in cases where litigants represent themselves.

Kamau says lawyers have judicial staff on their speed dial, giving them an advantage over litigants who file their cases.

Justice Ngugi says the technological shift has been raising more questions than answers, specifically touching on the Judiciary’s budget.

“We have 142 stations which depend on two servers in Nairobi to generate receipts for hundreds of thousands of documents filed through the email, leading to a backlog,” the judge told The Saturday Standard.

The digital system also means that the Judiciary staff do the lawyers’ work of printing filed documents to be placed on court files as opposed to before where the filing was manual.

Ngugi says the work has been overwhelming for his staff in recent months, and underfunding of the Judiciary has made the situation worse.