The rapid advancement of technology continues to reshape legal systems worldwide, prompting critical discussions on its implications for justice and governance. This year’s Hon. Magistrates and Hon. Kadhis Colloquium explored these issues under the theme “Digital Transformation, Technology, and the Law: Tech Justice.” The event examined how technology intersects with legal practice and the judiciary, ultimately influencing access to justice.

Technology already plays a pivotal role in the administration of justice. The judiciary’s Case Tracking System (CTS) and virtual court hearings have significantly enhanced efficiency and accessibility. Additionally, the Law Society of Kenya (LSK) has adopted an Enterprise Resource Planning (ERP) system to streamline public communication, alongside the increasing use of Artificial Intelligence (AI) tools by the legal fraternity to complement legal research. This demonstrates the growing influence of technology. However, these advancements raise ethical concerns regarding digital integration and its impact on the roles of legal practitioners and judicial officers.

Emerging issues at the intersection of law and technology

Beyond ethical considerations, digitalisation has also introduced new challenges.As technology continues to evolve at a pace far outstripping legal innovations, fundamental questions emerge about how legal frameworks and the judiciary should adapt. Ensuring judicial officers stay informed amid the ever-changing digital landscape while safeguarding fundamental rights, such as data privacy, remains a pressing challenge.

One of the key concerns highlighted during the colloquium was the growing threat of cybercrime and the limitations of the current legal framework in addressing these challenges. While existing laws, such as the Computer Misuse and Cybercrimes Act (CMCA) 2018, the Data Protection Act (DPA) 2019, and the CMCA 2024 Regulations on Critical Infrastructure Protection, offer some safeguards, they may not be sufficient to counter evolving cyber threats.

One prevalent risk is SIM swap fraud, where fraudsters use social engineering tactics to impersonate users and gain control of their SIM cards. In regions like Mulot (Bomet) and Narok, organised SIM swap fraud has become rampant, often involving individuals who have dropped out of high school and primary school. Additionally, internal fraud within mobile service providers, where rogue employees facilitate unauthorised swaps, poses a significant challenge. While M-PESA-related fraud allows for limited restitution, losses from bank-related fraud require separate handling.

Cybercrimes involving anonymous actors, such as the group “Anonymous Sudan”, present attribution challenges, as perpetrators are difficult to trace due to a lack of direct evidence. The transnational nature of cybercrime further complicates prosecution, as criminals often operate from different jurisdictions, making enforcement difficult. Another major hurdle in cybercrime prosecution is ensuring the chain of custody and authentication of digital evidence. The volatility of digital evidence makes it challenging to verify who handled or printed critical documents, affecting their admissibility in court.

The colloquium also emphasised the need to link telco databases with government registries, such as the Registrar of Persons and other relevant agencies, to prevent fraud. The anticipated rollout of the Maisha Number was discussed as a potential solution, although telcos currently rely on family members to report deaths, which creates loopholes for fraudulent activities.

The Communications Authority (CA), as the regulator of the ICT industry, has adopted regulatory sandboxes that enable testing of new technologies before their full-scale adoption. This approach allows regulators to assess risks and benefits before implementing broader regulatory frameworks; however, some emerging technologies, such as Over-the-Top (OTT) services, present regulatory dilemmas. The CA is currently debating whether levies or licensing requirements should be imposed on OTT providers. While the authority is not inclined to regulate these platforms, it is commissioning a study to assess their impact. It has encouraged local telecom operators and internet service providers (ISPs) to explore revenue-sharing models with platforms like WhatsApp.

On the spectrum licensing front, unauthorised spectrum use and frequency disruptions pose a significant challenge. In response, the CA is advocating for judicial intervention to grant regulators the authority to obtain ex parte orders against spectrum violators without prior notice, strengthening enforcement measures.

These discussions occur at a crucial time, as the National Cybersecurity Strategy (2023-2027) is currently under review.

Way forward: Strategic partnerships

To address these challenges, the Hon. Magistrates and Hon. Kadhis Colloquium emphasised the importance of strategic partnerships. The judiciary and the CA have signed a technical agreement aimed at introducing digital skills training at the Kenya Judiciary Academy. The courses will cover topics such as satellite technology and artificial intelligence that will assist judicial officers in adjudicating matters involving technology. 

The ICT challenges within the judiciary have hindered access to the CTS, particularly in rural areas where cybercafés are scarce. Partnerships between the judiciary and internet service providers to supply modems and data bundles can help sustain operations in underserved county stations. This can also be achieved through the Universal Service Fund (UCSAF), which will continue to support efforts to improve internet connectivity in sub-counties, ensuring that more people can access digital justice services.

The creation of a joint ICT and law working group, which aims to expedite dispute resolution and strengthen collaboration between the legal and technology sectors, is another critical initiative. This will ensure that judicial officers remain well-equipped to handle ICT-related legal matters. As the National Cybersecurity Strategy (2023-2027) remains under review, these efforts highlight the necessity of comprehensive regulatory and judicial preparedness in an increasingly digital world.

Conclusion

As technology continues to evolve, legal frameworks must adapt to ensure that justice remains accessible and ethical. The Hon. Magistrates and Hon. Kadhis Colloquium provided a platform for thought leaders to discuss strategies for integrating technology into the judiciary while upholding ethical and legal standards. The commitment to digital justice, strategic partnerships, and cybersecurity advancements will be crucial in shaping the future of tech justice in Kenya.