Kenya: Group Sues Maraga in a Bid to Force Reopening of Courts

30 November 2020

The scaling down of open court activities and digitisation of judiciary services has continued to make it difficult for most Kenyans to access justice, a human rights organisation has said.

Kituo Cha Sheria has filed a petition at the High Court seeking to compel Chief Justice David Maraga and the National Council on Administration of Justice to reopen the courts, says many Kenyans are suffering from technological barriers.

It says using the technology, such as the electronic filling of documents and use of video links in open court, have been a frustration because a majority cannot access digital devices and internet services in order to be heard by a magistrate or a judge remotely.

"Women, the poor, rural populations and other marginalised groups are particularly impacted as they form the larger part of the population that has no access to internet, electricity and ... digital devices," says the rights group.

Through programmes manager John Mwariri, Kituo Cha Sheria argues that even where internet network is available, the cost of digital devices (smartphones, tablets, and desktop and laptop computers) lock out the poor.

Complex court procedures

"Most court users lack familiarity of complex court procedures including the digitised and electronic judicial system," says the organisation while faulting the Chief Justice and the National Council on Administration of Justice (NCAJ).

Mr Mwariri says the judiciary embraced technology without considering ordinary citizens, which has led to unequal access to justice and exclusion of the poor.

"The use of technology has caused untold frustration, concerns and suffering to most Kenyans seeking to be heard in court and get services," he says, citing cases where people are turned away when they physically visit court premises and are instead directed to make enquiries by email, which is in accessible.

Kituo Cha Sheria further says the e-filling system launched by Chief Justice Maraga in July is not only frustrating unrepresented litigants but also a section of lawyers.

Dishonest practices

It adds that telephone lines are constantly engaged and, if at all a call goes through, minimal assistance is provided as those seeking services are asked to log into the electronic system.

"As a result, the system has encouraged corrupt and other dishonest practices including locking out of litigants from virtual hearings which has eroded confidence in the justice system," says Mr Mwariri.

He adds that, while the judiciary is aware that many people are unable to access the electronic system, it has proceeded to list some cases for dismissal.

"Directives by NCAJ and the Chief Justice entrenching the use of electronic system may attract praise due to the successes in developed world but the same may not apply in a third world country like Kenya and the realities of most citizens," Mr Mwariri says.

He further points out that the decision was not subjected to public participation where the limitations court users are facing would have been discussed.

He says the constitution only envisioned open court hearings where the public can access services.

According to the rights group, the CJ had admitted that the electronic filing would be convenient to a section of users and promised to initiate programmes such as the establishment of Information Technology (IT) support centres, accredited cyber café's and training of cyber café operators.

However, that did not happen: "We wrote to the Chief Justice two letters highlighting the fact that the omission of failing to initiate such programs has impeded access to justice. However, he ignored the letters," says Mr Mwariri.

Kituo Cha Sheria wants the court to order for the return of open court hearing and registries to members of the public and advocates with all the necessary measures to curb spread of Covid-19.

The group also wants an order directing the CJ to within 30 days of the judgment implement initiatives and programmes that will ensure access to courts by the public and advocates.

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