Access to justice during covid-19
By Hon.Hellen Onkwani
Covid-19 was declared was world pandemic by the WHO in the month of February 2020. The pandemic apparently originated from Huwan, China and the countries currently worst hit are USA, Italy, Spain, Turkey and UK. Africa as a continent is yet to feel the full effect of the pandemic. Africa has unique problems and if the pandemic is to get to the level it is now in Europe, it might wipe out a large chunk of the productive generation and this will lead to long lasting economic impoverishment. Consequently It will take a lot of time for any sector of the economy to get back to its feet (should the continent bear the full impact of the pandemic).
World over a total of one hundred and fifty four thousand people have lost their lives from the corona virus. The number of infected people is hard to be estimated as the virus takes between 2-14 days for the symptoms to be seen. While there have been significant populations that have recovered, there is no known cure for the virus.
The science behind the transmission of covid-19, has been established to be through Physical human contact. The virus moves through human beings, this has necessitated the WHO to give an advisory to governments to put in place mechanisms to reduce physical human interaction under the slogan “testing, contact tracing/tracking and treating” and this is in a bid to contain the spread of the highly contagious virus.
The health systems world over are under extreme pressure to save lives. The health system in Africa is least developed and equipped to deal with the existing health challenges such as, malaria, AIDS, cancer, pneumonia and other communicable, and other non-communicable diseases. Corona virus has therefore put extreme pressure on the medics and the medical facilities, with significant impact on the capacity of those systems to respond to other health emergencies as well as the regrettable loss of the lives amongst health worker. Africa and indeed Kenya still struggles with a short fall of human resources for health, therefore can ill afford such a disaster.
Due to the uniqueness of this pandemic, measures have been put in place to contain it as scientist work over time to look for the cure. Measures that have been criticized to be extreme and they include lockdown, curfews and social distancing. Since there is no cure to this virus that is ravaging every sector of the economy, the legal sector has not been spared either. In Kenya, all government entitles are complying with the government directives to keep safe distance.
The judiciaries world over have scaled down their operations and are embracing modern ways of facilitating access to justice, such as leveraging technology. Dispensation of justice cannot be downplayed at this critical time, despite the pandemic the wheels of justice must continue running. The wheels of justice has 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 come together and 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. Practice directions were gazette 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 by 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 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).
Strong arguments have been advanced that Kenyan courts should operate normally and legal services should be classified as essential services. No doubt in whatever 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 one given time there will be a minimum of ten people in any one siting. This as per the government directive may amount to a violation of the social distancing rule. The Kenyan courts currently are largely 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 getting up fees and court appearance fees. People 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. Arguments have been advanced 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 vulnerable people in society. 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 requirements to manage the pandemic. This therefore calls for open and critical minds in advancing whatever argument 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 go outside the traditional approaches for the sake of preservation of humanity.
(Hon.Hellen Onkwani is a principal magistrate and the vice-secretary to the International Association of Women Judges Kenya Chapter (IAWJ-KC))