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Court hostage is also part of state capture

Monday December 9 2019

By LUIS FRANCESCHI
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A group of 27 experts from Africa and elsewhere had gathered at the Gilly Leventis Meeting Room, at the Bonavero Institute of Human Rights, in the University of Oxford. There were senior judges, lawyers, prosecutors, political scientists, diplomats, politicians, business people, industry leaders, drafters, and a few academicians.

It was an engaging and focused discussion about civil and criminal procedure. Can we improve our messy justice process? How do we go about it? What are the human and technical gaps? After all, the system was not carved in stone five hundred years ago. Can we create a better system where people get timely justice; honest, and more accurate decisions?

This week’s piece is a bracket to the thread of scandals we have been following in the previous weeks. This week, we decided to help everyone understand that state capture is a two-pronged monster. On the one hand, it affects legislation; usually cartels capture the legislature and pass laws that aim at securing their haven of rotten and unfair advantage to the detriment of the common good. On the other, they ensure court hostage. This means that they sabotage justice and thrive when the court system remains inefficient, manipulable, and largely dysfunctional.

“Dysfunctional courts” was the biggest concern we all shared in that Oxford room. The courts in Anglophone Africa are not devoid of the challenges that affect courts across the world. Issues such as backlog of cases, mountains of case bundles, excessive use of paper and non-user-friendly case management methods make navigating through cases cumbersome, highly inefficient and prone to administrative and substantive corruption.

RANKED AFRICA

The latest Rule of Law Index by the World Justice Project (WJP) ranked Africa as the lowest in the world in access to justice despite the gallant efforts of various individuals who often swim against the tide of state interference, corruption, cartels, adversity and inadequate funding. The ranking was as follows:

A selected African countries and their World
A selected African countries and their World Justice Rule of Law Index scores.

The current justice scenario in Africa jeopardises its socio-economic development, human rights, and democratic growth. Judiciaries have largely failed to guarantee justice. We keep on hoping that an outdated and ineffective system will save us, while our attitude towards the rule of law is negative, biased, and disrespectful.

We use and abuse the system, turning our courts into a mockery of justice. We teach our students the art of manipulating the process for the client’s benefit, regardless of whether the client is right or wrong. We have forgotten that it was all about justice. Whilst the growth of alternative dispute resolution mechanisms is healthy, they cannot and should not substitute efficient, just and transparent courts.

The ability of African countries to provide real and meaningful access to justice for its citizenry calls for substantive reforms to the current rules of procedure and to technicalities that stymie effective justice.

Some experts think the remedy to all our evils is technology; the inclusion of IT in every system of governance and adjudication. The modernisation and digitisation of the justice system is rightly seen as an imperative to Africa’s justice, peace, future economic growth, and social success. But throwing new haphazard technologies on a dysfunctional system will not solve the problem. It will instead give the cartels the golden chance of creating a new Huduma Namba project scandal, part II.
The inclusion of IT alone will not in itself improve the system. We may just be repainting a rotten apple green. This will make an unsustainable, costly, and inefficient system look fresh for a while, but the rottenness of inefficiency is still very much at the core.

Only a working judiciary will operationalise the rule of law and ultimately allow sustainable financial investment and growth. But to repair such a heavy, old, and misfiring machinery needs depth and patience.

We need to identify salient human and technical aspects that jeopardise the process of justice. For example, our procedural rules cannot be guided by regulations that were drafted 80 years ago, for a different world. We also need to rethink legal education so that we stop teaching our students to perfect the art of manipulation. This is essential before we think of new technologies.

SANDBOX APPROACH

Botswana and Namibia have carried out structural reforms to their justice system. We can learn from their experience. The change may entail drafting new civil and criminal procedural legislation that is aligned with the principles and values of our constitution. This may be done in a sandbox approach, where key areas are identified and improved as the wheels of justice keep moving. It will also be necessary to train court users: both officers and practitioners, as well as introduce changes to the legal training curricula in law schools.

The court system should be waterproof and user-centred. As we close human errors and gaps in the system, we can also deal with the new technologies such as cloud-based case management systems, artificial intelligence bots, blockchain technology, electronic document archiving and retrieval technology. These are already proving to be a significant value addition to user experiences and ultimately to their outcomes accessing the relevant judicial systems, in other jurisdictions.

We must insist that technology is good when contextualised and guided by the need to resolve specific problems. Misguided technology can create algorithms which are biased. Not long ago, a new AI algorithm, COMPAS, was built on historical defendant data to “find correlations between factors like someone’s age and history with the criminal legal system, and whether the person was rearrested. It then uses the correlations to predict the likelihood that a defendant will be arrested for a new crime during the trial-waiting period”.

It was later found that there was an apparent racial bias in the programme. Perhaps a racial bias had been written into the programme, and blacks were “almost twice as likely as whites to be labelled a higher risk but not actually re-offend,” whereas it made “the opposite mistake among whites”.

As we fight legislative state capture, we also need to deal with ‘court hostage’ by filling the cracks impunity has created and redesigning the system so that it may function as it should.
The challenge ahead is huge.

This article is part of a long series of articles on the rule of law in the context of politics and ethics. The series is researched and co-authored by:

• Prof Luis Franceschi, founding dean of Strathmore Law School and Visiting Fellow, University of Oxford
• Karim Anjarwalla, Managing Partner of ALN Anjarwalla & Khanna, Advocates
• Kasyoka Mutunga, Research Associate at ALN Anjarwalla & Khanna, Advocates
• Wandia Musyimi, Research Associate ALN Anjarwalla & Khanna, Advocates