COVID-19 and the Courts of Law: Access to Justice in Pandemic Times can be a model for a post-pandemic world - Center For Forced Migrants
COVID-19 and the Courts of Law: Access to Justice in Pandemic Times can be a model for a post-pandemic world

COVID-19 and the Courts of Law: Access to Justice in Pandemic Times can be a model for a post-pandemic world

First detected in the Chinese city of Wuhan in December 2019, the World Health Organisation (WHO) declared the coronavirus (SARS-CoV-2) disease 2019 (COVID-19) a "public health emergency of international concern" on 30 January 2020, and a global pandemic on 11 March 2020.[1] COVID-19 rapidly developed into a crisis affecting almost every country in the world. On 18 March 2020, the Government of Uganda (GoU), through the Office of the President, announced a series of public health measures to prevent the spread of COVID-19 across the country. These led to very restricted access to courts, despite such access being a fundamental human right provided for in Article 28(1) of the 1995 Constitution of the Republic of Uganda. In a bid to enable access to courts during the COVID-19 pandemic, the Judiciary took measures such as online hearings and electronic delivery of judgments. However, access to courts remained a challenge due to a host of factors.

Firstly, to prevent the spread of COVID-19 the Government of Uganda banned public and private movement of vehicles. Uganda's courts of law are exclusively located in urban areas — cities, municipalities, and towns. The prohibition of vehicle movement made it difficult for people living in peri-urban and rural areas to access the courts. The situation was - and in many regards still is -  even worse for refugees living in refugee settlements, many of which are located far away from the courts. In Adjumani district, for example, refugees frequently walk 30 kilometres or more to access a court of law. For instance, Maaji II Refugee Settlement in Adjumani District is approximately 42 kilometres away from the Magistrates Court. Refugees are unable to afford the fare for public transport or, as is often the case, transport means are simply unavailable. With the ban on public and private vehicles and, stoppage of motorcycles from carrying any passengers, it was almost impossible for refugees and hosts alike in peri-urban and rural areas, especially asylum seekers and refugees in the far-off settlements, to access courts of law. Border districts, some of which host significant refugee populations, were disproportionately affected by the movement restriction borne of the COVID-19 lockdown, thus diminishing prospects to access courts.

Secondly, the Chief Justice (CJ) of Uganda issued directives to prisons not to present prisoners on remand to court,[2] thereby limiting prisoners’ access to courts. Even before the Covid-19 outbreak, many inmates had already been kept on remand long beyond the mandated time periods. I did establish this through prison visits I conducted in various prisons across the West Nile and Northern regions. The majority of the prison inmates on remand stated they had been on remand for between one and five years. Some had even spent a much longer time. The situation is exacerbated when accused persons are unaware of their rights, such as the right to mandatory bail. The directive of the Chief Justice worsened this so-called “overstay on remand”, thus increasing congestion in prisons. However, some judicial officers have been innovative in enabling accused persons' access to justice. For instance, on 14 May 2020, the Magistrate Grade I of Adjumani had a court session at the Uganda Prison Farm, commonly known as Openzizi prison, where 37 prisoners who had overstayed on remand were released. Other judicial officers have heard bail applications online. For instance, the bail application for Lt. Gen (Rtd) Henry Tumukunde was heard using video conferencing as he did not physically appear in court. The applicant followed the court proceedings from Luzira prison.[3] These initiatives are commendable as they address access to court and tackle overstay on remand; as well as reducing an egregious violation of detainees’ rights, this has the added advantage of decongesting Uganda’s overcrowded prisons.  

However, the directives of the Chief Justice were silent on juvenile offenders, who are kept in remand homes. During a personal visit to Arua Remand Home, I discovered that it serves the entire West Nile region. Juvenile offenders from various districts across the West Nile, such as Adjumani, Moyo, Zombo, Yumbe and Nebbi, are all taken there, but then need to return to the courts in their respective districts to have their cases heard. Similarly, in the Northern region, juvenile offenders from as far away as Lira and Nwoya districts are all taken to Gulu Remand Home. Even before the Covid-19 pandemic the administrators of remand homes faced difficulties transporting these juveniles for their court hearings; one can only imagine how much more difficult it has become during the pandemic.

Furthermore, in his directives, the CJ suspended court hearings and appearances in court, although all judicial officers and staff were to continue being on duty. Court hearing precedes grant of remedies such as compensation, bail, imprisonment, et cetera. With the suspension of court hearings, parties lacked physical access and, consequently, were unable to obtain remedies. The Judiciary encouraged online delivery of judgments and rulings to counter this. His Lordship Musa Ssekaana delivered many judgements online.

Thirdly, although the Judiciary issued supplementary guidelines about online court hearings[4] to guide parties and Judiciary on how the hearings should be conducted,[5] and while the benefits of online hearings have indeed been experienced by some lawyers and accused persons in Kampala, many continue to struggle with the new virtual working arrangements. The situation was (and still is) starkly challenging in upcountry courts. The availability of necessary equipment like computers for the judicial officer and the prosecutor, the accused, and their advocate is never a given. Some have equipment but, due to their locations, lack access to the kind of internet connection that is essential for an online hearing. Many court users are impoverished and do not have computers and smartphones, let alone access to a reliable Internet connection. Most are still struggling to feed themselves during the pandemic. While for a long time the justice system of Uganda was structured so that the people had to go to justice actors, pandemic times have now necessitated that justice be taken to the people. However, only if the necessary investments in technology and communication equipment are actually made, will those in rural areas be enabled to access virtual courts.            

Fourthly, the silence in the CJ directives about taking plea and bail applications for the suspects of minor offences is highly problematic. Since the presidential directives on the COVID-19 lockdown were issued, the police have arrested many people for disobeying the presidential directives, as well as for other crimes like theft. To deal with this, the Office of the Director of Public Prosecutions (ODPP) issued a circular to guide prosecutors on how to operate during the lockdown. The ODPP directed that all criminal cases arising from the enforcement of the government anti-COVID-19 measures are to be handled. But the related ban on public and private transport made it difficult for sureties of the accused even to make it to court. Judicial officers exploring the option of releasing an accused on their recognizance where sureties are physically unavailable remains a critical litmus test of access to justice in the current situation.  

To conclude, these pandemic times have highlighted the need to get back to the drawing board and reassess what access to justice through the courts of law means under such circumstances. Access to courts was already a challenge before the COVID-19 outbreak; the latter has simply complicated further an already complex situation. New strategies should be developed to make the courts more accessible and to take justice to the people. More than ever before, the considerable potential of communication technologies to overcome barriers to court hearings and thereby to sustain and even enhance access to justice in the medium term should not be ignored. Hence, the Judiciary needs to heavily invest in equipping upcountry courts, in particular, with commensurate technological advancements to meet the challenges of the present virtuality. If the World Food Program can introduce biometric verification for humanitarian aid to refugees[6], why can’t the Judiciary, in the same vein, introduce online hearings in Uganda’s remote refugee settlements? While the use of mobile courts (where judicial officers conduct sessions in the communities) has been explored and successful in some refugee hosting districts such as Adjumani, Lamwo and Insigiro, COVID-19 times demand that we go a step further to make courts of law not just physically mobile but also virtual; only then can the right to access to court—which is a vital proponent of the non-derogable right to a fair hearing—be truly upheld in times such as these pandemic ones. Success in doing so will be of enduring benefit to those in hard-to-reach areas of the country long after the pandemic is over.

 

By Ayaru Irene Priscilla

Legal Officer, Refugee Law Project

Adjumani Field Office

Twitter @Ayaru_Irene

 

 

[1] Tedros Adhanom Ghebreyesus, “Opening remarks at the media briefing on COVID-19 (11 March 2020)”, https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19

[2] See http://www.judiciary.go.ug/data/news/821/2184/Administrative%20and%20Contingency%20Measures%20to%20Prevent%20and%20Mitigate%20the%20Spread%20of%20Corona%20Virus%20(Covid-19)%20by%20The%20Judiciary.html Guideline 2 Chief Justice Circular on Covid-19, issued on March 19, 2020.

[3] See https://www.monitor.co.ug/News/National/Gen-Tumukunde-released-bail-asked-deposit-passport-court/688334-5548888-pd67wl/index.html

[4] Guidelines for court online hearings, office instruction number 2 of 2020, issued on 29th April 2020 by the Chief Justice of Uganda. 

[5] These were to be applied alongside other laws such as the Computer Misuse Act of 2011, the Electronic Transactions Act of 2011, the Judicature (Visual-Audio Link) Rules of 2016, and The Constitution (Integration of ICT into Adjudication Processes for Courts of Judicature) (Practice) Directions 2019

[6] See https://insight.wfp.org/the-full-circuit-how-wfp-is-enabling-biometric-verification-in-uganda-823da0bf6ba7

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