Online courts may well be the future
Correspondent | Wednesday April 22, 2020 21:12
COVID 19 knows no boundaries and it seems the courts in many jurisdictions, and Africa in particular, cannot function amidst the crisis. There are no innovative and intelligent ways to provide a platform for the function of the courts without rigidity.
The courts have largely closed to the public, literally slamming the door on access to justice to thousands of citizens, whom in a State of Emergency and in the crisis we face, may need it the most. African governments are notorious for gross human rights violations, and under the cloak of state of emergencies that have been declared in many Southern African countries, the problem may be catastrophic.
In an era of the rule of one man by decree, courts must be available and vigilant to guard against any potential and possible abuse.
That the courts have literally shut down, only operating in heavily restricted and circumscribed circumstances is institutional failure. Institutions need resilience in a crisis, just like people do. If your institution was forced to shut down because of the pandemic, then it failed its resilience test. It wasn’t there for us when we needed it.
The hand-wringing and denial in pre-COVID-19’s overburdened, underfunded justice system, has shifted to crisis and triage. Or worse, total standstill.
But is there a silver lining? The crisis may well be the fortunate misfortune to wake up our leaders from their slumber. This crisis might not have been the disruption we wanted, but it’s the disruption we needed.
What we do not immediately see, but hopefully will happen soon is courts scrambling to adopt technology solutions to get operations back online and to increase services during the pandemic. Anything other than that will be tragic failure.
COVID-19 also signals that there is no going back. Now that the courts are seeing how new processes that don’t require a physical court presence can provide access to more people, it’s going to be impossible to justify returning to the status quo ante.
Legal futurist Richard Susskind has long advocated for a shift in thinking with the courts, one he and Furlong predict most certainly is changing during this global crisis: Courts aren’t a place, but a service.
When we think about courts as a service rather than a place, it’s much easier to conceptualise technology-driven or facilitated dispute resolution.
In fact, it’s hard to think about returning to the status quo, with a rigid expectation for physical presence and an overly complex process built, serving a place rather than serving justice.
Rather than perhaps the decade of anticipating, and amid COVID-19, what we have seen is huge numbers of courts around the world shutting, and what we have not seen; and is or has been conspicuously lacking is the correspondingly large numbers of cases being held by video conference and telephone conference too (I am being too generous, none have been held or will be held anytime soon).
These aren’t seamless proceedings. Nor should they be expected to be. Instead, this is a massive experiment that we can expect will yield enormous data points and anecdotes about what works and what needs adjusting to adequately conduct legal business and uphold the rule of law in a digital environment.
Still, it would be shortsighted and a mistake to think that things will return to ‘normal’. Things shouldn’t return to normal for the justice system.
Well before the pandemic triggered court closings and the ceasing of trials for some indeterminate period, courts were grappling with an access to justice crisis. Courts have long been underfunded and equal access out of reach for the majority of Batswana.
What we should expect from our institutions at this point is continued testing while they scramble to bring operations back online.
The only way forward is to find new ways of doing business for the courts.
MORULAGANYI MODIRI*
*Morulaganyi Modiri is a pseudoname of a senior attorney.