October 22, 2021 - 5 minutes read

Hope for Improved ICT Infrastructure after High Court Orders Implementation of Initiatives to Aid Access to Justice

By Amrit Labhuram

Information, Communication and Technology (ICT) has for years now been an enabler of Kenya’s economy and development.

When the coronavirus pandemic hit in 2020, the government looked at ICT to provide various solutions given that the Ministry of Health had laid out various measures including social distancing, working from home and avoidance of public gatherings as much as possible to combat the spread of Covid-19. 

The Ministry of ICT appointed a Covid-19 ICT Advisory Committee through Gazette Notice No. 3236 on April 21, 2020, to coordinate ICT specific responses to the effects of the pandemic in Kenya.

The courts were not left behind in employing ICT solutions to ensure Kenyans got justice while avoiding public gatherings. In order to mitigate the effect of the pandemic on the Judicial system, the then Chief Justice, Justice David Maraga, instituted the Electronic Case Management Practice Directions, 2020. The Electronic Case Management Practice Directions form part of the Judiciary’s digital strategy under the ‘Sustaining Judiciary Transformation (SJT) Agenda 2017-2021. 

The directions proclaim that in every judicial proceeding, the court and the parties to the case shall employ the use of technology to expedite the proceedings and make them more efficient. However, the directions also accomodate the use of an alternative technology or approve manual filing of any document in the instance a court cannot access any form of electronic media. 

Despite the efforts of the Judiciary to continue administering the law in the midst of a pandemic, the Electronic Case Management Practice Directions have inadvertently engendered undesirable consequences. 

This eventually precipitated the institution of a petition before the Constitutional and Human Rights Division of the High Court in November 2020. The petitioners claimed that the Covid-19 relief measures adopted by the Chief Justice and the National Council on the Administration of Justice had violated the right to access justice and a fair trial. The claim emanated from the entrenchment of an electronic judicial system without the necessary initiatives to cover the indignant and self-representing litigants and to assist them to overcome the constraints of technology in access to justice. Specifically, the petitioners sought orders made for the reinstitution of physical court proceedings as well reopening of court registries. 

The judgement rendered last week Thursday, October 14, 2021, ordered Chief Justice Martha Koome to implement initiatives and programmes, within 90 days, that will ensure access to the courts and services by members of the public and advocates.  The court ruling recognises the former Chief Justice’s speech in July 2021, which called for the establishment of IT support centres at Judicial stations to serve indigent persons who cannot afford fees charged by cyber cafes.  

As Kenya contends with the shift from manual processes, the common Wananchi should not remain an afterthought as seen with the courts. In an increasingly digitized world, access to ICT infrastructure and services is contending to be a crucial human right, critical to the holistic improvement of the quality of life for the average Kenyan.  

That’s why, in August 2020, the Cabinet Secretary for ICT, Innovation and Youth Affairs developed the revolutionary National Information, Communication and Technology (ICT) Policy Guidelines, 2020. The policy sets forth to facilitate universal access to ICT infrastructure and services all over the country. In particular, the policy strives to ensure every Kenyan has access to reliable, affordable, high-speed broadband connectivity, and that Internet access is available everywhere, all the time to everybody and everything via mobile phone, Wi-Fi, cable and other means. 

Despite its ambitious goals, the policy remains cognizant of the challenges of unequal investment and access to ICTs in unserved and underserved areas within Kenya. The challenges manifest in the form of:

  • Inadequate underlying Internet access infrastructure;
  • Lack of consumer readiness (Digital literacy) – Internet penetration currently at 40% of total population (21.75 million Internet users, mostly residing in urban populations);
  • Lack of access to affordable broadband connectivity, and gadgets and devices; and
  • Content and Services – the user interfaces and experiences designed for Internet content and services are not fully compatible with older mobile devices and operating systems. 

The Internet in Kenya is primarily accessed through mobile devices (74.2% through mobile devices and 24.7% via personal computers). Unfortunately, the nature of content and services accessible via mobile devices and the lack of high-speed broadband connectivity, especially availability of 4G spectrum, has marginalised Kenya’s rural population from benefiting from the current efforts made towards universal access. Initiatives such as the provision of E-citizen services, since August 2014, have been marred with concerns over digital exclusion of rural populations despite offering over 350 government services and serving 27.2 million unique customers. 

These challenges were compounded by the onset of the Covid-19 Pandemic, which promulgated a momentous shift towards the reliance on digitised services as public gatherings posed elevated health risks. 

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