Revising our outdated justice system (Part V)

Confusion reigned, tempers were hot and fears were in high gear. As the siege at DusitD2 ended, many fingers were pointing at the Judiciary. It looked like a genuine outburst of hatred. ''Our justice system is to blame'' chanted some, as if the Judiciary had orchestrated the attacks.

Anyone who knows how the system works, will immediately realise that these complaints were misguided. Maybe they were genuine or perhaps they were triggered by some mischievous political motifs. Whatever the case, our justice system needs to change, but this change will be utterly useless if we do not know how the system works.

Those who truly know how the judiciary works, know that judges are passive receivers. Judges are in the hands of police investigators, public prosecutors, defence lawyers and legislators.

Judges are not free to decided cases as they wish. They are (or should be) blind to rumours, public opinion, perceptions and friendships. Their decisions are guided by the quality and honesty of what police, prosecutors and defence lawyers put on the table, informed by unforgiving laws and jurisprudence applicable to the matter in question.

There are many ''ifs'' in the justice process. If the police do not do their job when investigating a crime, and the prosecutor is not competent and dedicated, and if the laws guiding the case are poorly drafted or inaccurate, then there is no doubt the judge will be forced to reach the wrong conclusion.

The judge knows it but can do nothing about it; a judge may free terrorists, drug dealers or serial killers and it is done in an act of ''justice''. The judge can do nothing about it no matter how much we blame judges and how many times we replace the Chief Justice.

Judicial reforms will necessarily involve police reforms, high-level training of prosecutors, change in lawyers’ attitude, law reforms and good selection of judges. This week’s piece is dedicated to the necessary reforms in the agonisingly-slow pace of the justice machine and the court process.

The changing face of the judicial process

Thirty-five years ago, in 1983, Justice Bhagwati said in the Indian case of National Textile Workers’ Union v. P.R. Ramakrishnan, ''We cannot allow the dead hand of the past to stifle the growth of the living present…if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move, adapting itself to a fast-changing society and not lag behind.''

Kelvin Mbatia, a young upcoming scholar, warns that the inefficiencies of the system have become part and parcel of the lives and livelihoods of too many people. There will be resistance within the judiciary and at the practitioners’ level, where information technology will drive out auxiliary staff and unsettle the comfort zone for experienced lawyers, paralegals and judicial officers. Kelvin says that the transformation journey for the judiciary will face opposition from the good, the bad and the ugly; it will not be rosy.

Of course, introducing information technology and software in such a messy environment will not be the panacea. It would be like automating a factory of rotten apples. We will only achieve a faster production of rotten apples.

The use and abuse of adjournments

First, the judicial process must be redesigned to tighten the loose ends. This is a serious law reform task. In these reforms, we must do away with the abuse of adjournments (distressing delaying tactics that account for our huge backlog and delayed justice) and the abuse of preliminary objections and vain appeals. Judges and practitioners must be held accountable for their actions.

We also should digitise all payment systems and do away with any direct contact and exchange of cash between practitioners and any judicial or administrative officer.

A young brilliant lawyer, Angela Wahito, told me that the judiciary had a case backlog of 6,551,451; 7,222,516 and 8,335,759 in the years 2004, 2005 and 2006 respectively. The improvement since 2011 has been amazing. A case audit of 2013 revealed a case backlog of 316,441, while in February 2016 it stood at 338,498 out of which 62,505 cases were over 10 years old and 75,274 cases were 5-10 years old.

The Judicial Transformation Report shows that as at December 2016, there were 360,284 pending cases. Some 175,191 of them were over 5 years old, 95,284 cases were two to five years old, and 90,950 were between one and two years old.

We are in a rat race. New cases are filed every day; even as other cases are cleared. Thus, despite these significant gains, the problem of backlog remains constant. Confusing jurisprudence and frivolous litigation seems to be at the root of this challenge.

IT is not the solution but a necessary step

A young student, Brian Omari is a great fan of the use of IT in legal process. He says that many countries have embraced information technology use in their court system. Transparency and effectiveness are emphasised as two positive consequences of the use of information and communication technologies (ICT) in courts.

Former Chief Registrar of the Judiciary, Ms Gladys Boss Shollei had already foreseen the need of introducing new technologies in the court room, including case management systems, court records and digital audio/video recording. Her successor in the Chief Registrar’s Office, Ms Anne Amadi, has already taken daring steps to digitalise the courts.

Part of the solution

In the U.K. courts, CaseLines has replaced paper. CaseLines is a handy, accurate and comprehensive case management software. It has brought down the average completion of court cases to almost 30 weeks.

The United Arab Emirates has gone a step further. In Dubai, where investment courts also use CaseLines, the average completion of cases is four weeks. In Abu Dhabi, the global markets courts launched a digital courtroom a month ago. It handles civil and commercial disputes, allowing plaintiffs and respondents to upload their documents and appear in court through an online portal.

The courtroom is paperless and built on blockchain technology for transparency and accountability. Once the parties gain access to the online portal, they can electronically file all their necessary documents from anywhere in the world and at any time and uploaded information is accessible to lawyers and judges.

Files do not get lost and they are not printed. All movements are traceable, even if anything is removed or deleted. The unethical practice of ‘hiring’ professional witnesses and abusing adjournments is properly dealt with.

The whole package

For our justice system to function, we need a working police with proficient investigators. We also need a dedicated, honest and competent team of prosecutors; and upright lawyers. We also need to reform our procedural laws and support the judiciary by putting proper systems in place. Most backlog cases deal with land law. There is no reason why our land registry should not be digitised and properly mapped.

This may sound like a dream. But until then, we must close every possible loophole in the system, and that is where the help of IT comes in handy.

The fact is that the ongoing outcry about the lack of convictions in corruption and terrorism cases is not only the judiciary’s fault. In each case, we need to look at the quality of the investigation, the competence of the prosecution and the behaviour of the lawyer and the judge. It is a whole package.

Next week we will focus on the judge and his task in building a coherent body of jurisprudence.

Dr Luis Franceschi, Dean – Strathmore Law School, [email protected].