In 2019 the unprecedented coronavirus (COVID-19) was identified in Wuhan, China. At its inception, it was difficult to contain leading to a nationwide lockdown in China and on March 11th 2020 the World Health Organisation (WHO) declared the novel COVID-19 outbreak a global pandemic. As a result, countries globally had to act swiftly and fast to curb its spread. On the 25th of March 2020, the Ugandan government instituted a partial lockdown of the country at the earliest possible opportunity which lead to un-indefinite standoff of all social and economic activities in the country including the judicial arm of the government.
Post the general presidential elections in January 2021, Uganda was hit with the second wave of the coronavirus which appears to be the deadliest so far and on the 6th of June 2021, a 42-day partial lockdown was announced and subsequently a week later, on 11th the president announced another 42-day partial lockdown which suspended all public gatherings, public and private movements and a nationwide curfew was revised to between 7pm – 5:30 am. Accordingly, government institutions, departments and arms of government also responded with standard operating measures that were in line with the presidential directives to curb the rapid rise in coronavirus infections.
The Judicial response to COVID-19 in the first and now the second wave has seen the courts of law partially closed to judicial staff and litigants, leaving them open to what the Chief Justice termed as “urgent matters” and legal practitioners were encouraged to file cases using e-filing.
These measures have greatly hampered access to justice in the country. Such as, scaling down the number of court staff means that the ordinary functionality of the court is affected. This has negatively impacted on the number of cases that are being filed and heard. Efforts by the Judiciary to continue court process through online hearings of bail applications, mentions, interlocutory applications and delivering of judgements is a great stride but exclusive to a greater extent limiting access to justice. The Judicial digital infrastructure is limited to urban courts and detention centres which are the least. The Electronic Court Case Management Information System (ECMIS) which automates, tracks all aspects of a case life to facilitate the efficient and reliable collection, organisation, distribution and retrieval of significant amounts of case specific data as well as processing of payment of relevant court fees and fines by the litigants is still at the offing.
Access to justice is the ability of a litigant to seek and obtain redress from formal and informal justice systems in compliance to human rights standards. Court hearing restricted to “urgent matters” and the use of virtual tools like Zoom stifles access to justice for all, one wonders what is meant by “urgent matters”? Are “urgent matters” only for privileged litigants? What of the litigants down in Nwoyo or even Iganga districts?
Nothing new comes without critics, online hearings and hearing of urgent matters has only enhanced inequality in the large segments of the litigants hence increasing to qualitative and quantitative barriers to access to justice. It has reduced legal awareness, limited legal aid services to indigent and vulnerable people. It is suffice to say that it has reduced public confidence in the judicial system.
The 1995 Constitution of Uganda under various provisions upholds the notion of access to justice. Justice is a strong pillar of a democratic country, as is also, a gauge of the strength of rule of law. Various provisions in the Constitution such as article 28 (1) and article 126 (2) (b) are instrumental in upholding litigants’ rights to have their matters heard before an impartial court in a manner that is speedy so as not to have justice being delayed.
A lot has happened very quickly and a lot has been achieved during this period. It is now urgent to get started on the analysis of the responses of the Judiciary to the pandemic in Uganda. The Covid -19 pandemic has posed a never-imagined challenge to the Judiciary and when it comes to access to justice, the challenger is even graver and unique. Commendably, the Judiciary has responded remarkably by, without hesitation, harnessing technology to ensure that access to the courts is not impeded. It would not be entirely correct if I were to say that access has not been impeded.
In spite of that, to ensure access to justice, the Judiciary Covid-19 response requires fine tuning to accommodate all litigants across the country. If online hearings have been set up in urban centres, a similar system should be introduced for High Court circuits and residential courts in Uganda. Steps towards digitisation by the Judiciary are complementing ECMIS; I cite two instances: first, the introduction of delivering judgements and rulings via email, secondly, virtual hearings of bail applications, which is a good step.
For the Judiciary to ably accommodate all litigants with online justice, some of these issues need to be addressed such as the video system that is to be used should have acceptable safeguards that protects personal data of the parties, more so, the participants who join these online hearings should not incur costs for say the software used. Secondly, there should be a simple guide on how to connect to these hearings in order to avoid unnecessary delays.
The Judiciary should also look into incorporating online services for alternative resolution methods such mediation. The court compulsory mediation that was introduced should also have an online presence through zoom or the other communication tools. This can be an important tool of solving disputes in the midst of the lockdown without the need to wait until they are lessened. Promoting the use of online ADR could lower the backlog and duration of cases courts will face when they are back in full operation. This will ultimately provide more effective access to justice to both the parties of those disputes and the ones in need for court resolutions.
In conclusion, moving towards online justice will in one way or another improve access to justice to the vulnerable if it is inclusively used. Online justice is the new normal of justice and I believe it is something that will improve accessibility to justice. The use of technology to resolve legal issues also comes with added advantages that will solve problems that have been in place such as geographical barriers, high costs of litigation, intimidation in court among so many other issues.