OWINO: A peek into the courtroom of post-Covid age

I appeared before a judge this past week by teleconference to much consternation because I never left my office, even as I said that I was in court. 

This was against the backdrop of the clamour by advocates for courts to be opened so that they may continue providing the essential services of legal representation to their clients.

The first action that was taken around the world was that court buildings were declared out of bounds as soon the Covid-19 pandemic was detected in their respective countries. 

In Kenya, the National Council on the Administration of Justice suspended court hearings and allied processes as soon as the first case of the coronavirus was reported in the country. 

The US Supreme Court buildings were closed to tourists in March. This posed a physical hindrance to accessing court buildings.

Following the closure of the buildings, court hearings ceased altogether in most courts worldwide.

It then occurred to me that the global pandemic not only affected the rights of association and movement in the form of restrictions to large gatherings and the curfew declared in the country for the past two months but also the right of access to justice as a constitutionally protected service.

REMOTE WORKING

While the world is thinking of the new work places after the pandemic, the legal services sector will not be spared.

This month, the United States Supreme Court started hearing arguments in a case remotely, that is without the counsel of the parties appearing before the judges in the courtroom.

Going forward, the cases will be heard in like manner and live-streamed. Judgements, also known as the court’s opinions, will be posted on the courts’ websites rather than being read out in open court as is normally the case.

Still in the US, the Federal Appeals Court for the Washington DC area is closed to the public except for persons who are authorised to conduct essential business there.

But even such persons will have to wear face masks, covering the mouth and nose while within the court precincts.

Filing of documents in most courts will now be done electronically by email in most courts in the US and most other countries to avoid numerous visits to the court buildings. 

VIDEO PLATFORM

To demonstrate just how serious this is, the Eighth Circuit courts of St Paul Minnesota and Eagleton in St Louis permit documents to be left at the front doors of the courts.

In the state if Connecticut, manual filings are to be delivered to a designated box in the entrance lobbies. This threat is also seen in the Iowa Supreme Court, which ordered attorneys to notify each other or the court officials if they suspect any participant in a court case of being a high risk of transmitting the coronavirus.

In England, the supreme court also conducted cases entirely by video link for the first time in the wake if the Covid-19 outbreak.

In addition to that, the lower courts have a new video platform to conduct criminal trials remotely, with the exception of cases with a jury.

This is akin to the state of Arizona in the US, where jury trials have also been postponed. Scotland, on the other hand, has started conducting jury trials by video link.

The cases in international courts have not been spared by the Covid-19 pandemic either. The European Court of Justice and the General Court of the European Union suspended the hearing of cases in the immediate aftermath of the Covid-19 pandemic.

SAFETY MEASURES

The court then sent written guidelines to the parties in cases pending on how it proposes to conduct hearings before it. These guidelines indicate the court will review the cases before it and instead send written questions to the parties and consider the responses as submission instead of holding actual oral hearings, as a response to the logistical challenges posed by the pandemic.

These guidelines also contain directives on dressing. It ordered that the counsel appearing before the court will henceforth be required to carry their own gowns as opposed to the gowns previously provided by the court.

The judiciary in Romania went further and published directives that require, among others, that all persons going to the court buildings will have their temperature taken as a condition for access to the courtrooms.

Those found to be running a fever will be denied access to the courts. So much for those who may be seeking to litigate the rights of privacy before these courts.

But it must be said that the push towards video conference or virtual hearings is not all-popular and acceptable to all.

QUALITY OF EVIDENCE

In Kenya, for example, some advocates are opposed to hearings in that manner and have agitated for the reopening of the courts.

They insist that, particularly for hearings where judges need to determine the credibility of the witnesses as they give evidence, teleconference proceedings may compromise this important aspect of determination of the quality of evidence in a trial. 

The excitement about remote video trials is not shared by judges in Spain. The judiciary of Spain warned the advocates of the Malaga Bar Association that their proposal for the suspension of face to face hearings was overreaching and should be made by the judges on a case by case basis.

In Uganda, there was recently a controversy over the right of access to justice not only for the litigants but also the right if advocates should practise their profession following a recommendation by the administration that only a select and limited number of advocates be permitted to represent parties in court during the period of the lockdown declared to control the spread of Covid-19.

OPEN COURT

This was hugely controversial and unpopular among the advocates. But the pandemic has not only affected the processes and manner of conducting litigation. Even substantive rights have been affected.

Because of the closure of the courts, the Supreme Court of Georgia suspended the Statute of Limitations until mid-June to save the rights of persons who held causes of action for which they had a right to sue but which may have lapsed during the period of closure of the courts.

The pandemic has also challenged rules in Kenya and most countries on how litigation is conducted. The clearest example is the requirement in the Civil Procedure Rules that judgements be delivered in open court.

Despite its health challenges, the pandemic forced the providers of justice – whether as advocates or judicial staff – to consider the essential justice from its trappings and substantive justice from idle technicality. 

The writer is Head of Legal at Nation Media Group PLC