By Yankuba Jallow
The Gambia Judiciary is doing a trial on virtual court hearing by means of Zoom calls amid the coronavirus with support from UNDP.
The introduction of virtual court hearing was borne out of the need to address the public health challenges of holding public court hearings in the wake of the COVID 19 Pandemic. The World Health Organization’s guidelines initially recommend physical distancing and avoidance of physical gathering at the height of the pandemic. There was also a State of Public Emergency (SOPE) that effectively banned any public gatherings. Court sittings were suspended in March with a few exceptions. Meanwhile, the prisons and other police stations were overwhelmed with detainees/prisoners adding to the chronic problem of congestion. This was a potential public health hazard at the peak of the pandemic not to mention the implications it has on the civil liberties of detainees.
The UNDP intervened and supported the establishment of virtual courts in collaboration with an inter-agency task force coordinated by the Chief Justice comprising the Judiciary, Gambia Bar Association, Ministry of Justice, National Agency for Legal Aid, Gambia Prison Service, Gambia Police Force , National Drug Law Enforcement Agency .The virtual courts were piloted in two high courts. The Virtual Courts allowed lawyers to make bail applications and other applications using the zoom platform and do away with the need to be physically present at the court.
The Banjul high court is being used as pilot for virtual hearing. Some inmates at Mile acquired bail through the virtual courts. It helped to decongest Mile II during era of covid-19 which requires physical/social distance between persons.
However, some lawyers are calling for improvement. The virtual courts are still on trial and this is why it is placed in only a few courts.
The virtual courts are marred by interrupted communication owing to bad internet facilities. Foroyaa interviewed six lawyers who all had the opportunity to attend court virtually and they are all with the opinion that the system needs improvement.
According to UNDP, the sponsors of the virtual court project, “the COVID-19 outbreak combined with the poor sanitation facilities and overcrowding of the Remand Wing of Mile 2 Prison raised a red flag of the Prisons becoming an epicenter or super spreader of the virus. To decongest the Remand Wing, the UNDP initiated partnership with the Judiciary for the establishment of Virtual Courts.
In this regard, the Chief Justice established an Interagency Task Force (IATF) to review legislative or constitutional impediments for establishing a Virtual Court. The IATF comprised the Judiciary (Chair), Ministry of Justice, the Police Force, the Prisons Service, the National Agency for Legal Aid, The Gambia Bar Association, the National Drug Law Enforcement Agency and UNDP. Several consultations were convened with recommendations on piloting and a position paper on the legislative and Constitutionality of the Virtual Court submitted to the Office of the Chief Justice. The Chief Justice approved the establishment of 2 Virtual High Courts for civil and criminal cases and issued Practice Directives to the stakeholders.
The first Virtual Court hearing was held on Wednesday, 10 June 2020. A total of 55 cases were heard, 13 criminal matters and 42 civil matters as of 15 July 2020. The cases of detainees were heard daily before two Virtual High Courts per day. The Chief Justice was considering adding two more High Courts per day, totaling four to the Virtual Court and extending the pilot to the Magistrate level.”
On Tuesday, the reporter was in court to witness the proceedings of three virtual cases. However, he observed that there were some breakdowns owing to internet connection. Virtual courts do not require lawyers to come to court.
The Gambia, like many other countries in the world, was forced to enforced strict measures to curb the spread of the Coronavirus. There was a ban on public gatherings resulting in the suspension of court sittings on 23rd March, except for hearings of cases that were considered urgent, essential or time-bound. This led to difficulty in accessing justice, delay in the administration of justice and non-compliance with filing timelines.
The disturbance triggered by the virus in proceedings of the courts pushed the Gambia’s Judiciary to come up with an alternative system, thus, the necessity for the development of an effective remote justice system using technology. With support from UNDP, the Judiciary came up with a remote system for the litigation process.
The virtual courts were introduced last year by the Judiciary amid the coronavirus pandemic during the period in which the court sittings were suspended as a way to curb the spread of the virus.
During their 2020 Legal Year Address, Chief Justice Hassan B. Jallow and Lawyer Salieu Taal, the President of the Gambia Bar Association both underscored the importance of digitalising the courts.
“Currently, we operate a very manual system with out-dated working methods,” Chief Justice Jallow said.
He said they recognise that the efficiency of the judiciary can be greatly enhanced by the use of technology in their operation.
“We intend to gradually introduce technology in the judicial system in various aspects of its operations, especially in recording and transcription of court proceedings and storage, and as well as the management and retrieval of information,” he said.
Taal on his part said ‘in this day and age the courts are still recording proceedings by long hand, which is very tedious and labourious.’
He said in many neighbouring countries, courts proceedings were recorded electronically – e-filling.
“It is indeed critical for the judiciary to consider digitising or automating court processes and proceedings,” Taal said.
The pilot remote hearing of court cases is viewed by some lawyers as good, but they all opined that there is greater need for improvement. The most significant challenge for the development of a remote justice system in The Gambia is the sub-optimal standard and the lack of infrastructure required for its implementation. In many areas, the power supply is irregular, and the internet speed is slow to conduct virtual hearings.
Ahmed Kemo Ceesay, the Executive Director of the National Agency for Legal Aid (NALA) said the virtual hearings are not as effective as the face-to-face court hearing.
“The internet in this country is very weak,” he said.
He said as a result of poor internet services, the voices of speakers drop at times, and the images are sometimes not clear and there
“In most case scenario, the person speaking will be cut off. Some would be disconnected and they have to try to connect again,” he said.
He said the disconnection of people affect the person speaking.
“People get disconnected in the middle of their discussions,” he said.
He opined that the accused person and the lawyer should be in one place.
“This is not happening,” he said.
He said during virtual hearings, the lawyers and the accused persons do not sit at the same place.
“It should be much more coordinated than it is at the moment,” Ceesay said.
He said NALA is a key partner in the pilot project for the virtual hearing, adding they have made several bail applications remotely using virtual hearings.
“We stay in our office, the Judge stays in his or her chambers and the accused person stays in prison,” he said.
He said his office was successful in some of their bail application, but most of the successful bail applications were done in a conventional manner.
“If the IT facilities can be better and communication is uninterrupted, and clients and lawyers can be at one place, we thinkthere is hope for virtual courts. I think for now, in my perspective, it is not the best substitute for the normal court hearings,” Ceesay said.
A lawyer who was found using the virtual court told Foroyaa the project requires improvement because she was disconnected three times during a civil case.
She said the internet connection is too bad that she missed some of the words the others said.
Lawyer Salieu Taal, the President of the Gambia Bar Association said the virtual courts come to complement the conventional courts(brick and mortar courts).
“The introduction of virtual courts allowed the decongestion of the remand wing of the prisons thereby limiting the spread of the virus as well reduced the backlog of cases. The Virtual courts have now been expanded from the two high courts to the magistrates and supreme courts. From the data available up to the end of 2020, a total of 176 cases have been dealt with,” Taal said.
On what should be done to improve virtual court hearings, he said there is need to increase awareness of the Virtual Court hearings amongst the legal fraternity and the judiciary.
“There is a dire need to better equip the courts and build the capacity of judicial officers across the board to be able to roll out virtual courts across the country. This requires digital literacy in the judiciary and amongst lawyers for the successful uptake of the technology. Better training of judicial staff to be more digitally literate will greatly enhance the success of the virtual court project,” Taal said.
The lawyer said there is need to expand the virtual courts.
“Virtual Court hearings will improve access to justice and efficiency in the delivery of justice. The more the merrier. The same standards in the high courts in Banjul should be replicated across the length and breadth of the country. All Gambians across the length and breadth of the country should benefit from the introduction of virtual courts,” he said.
Lawyer Taal said it is important to digitize court processes as it brings about efficiency and effectiveness in the justice delivery system.
“It will reduce the backlog of cases, allow for faster dispensation of cases and also reduce leakages (corruption). Digitisation is necessary for the preservation of court records and also easy retrieval of records. For purposes of information and data management, it will provide a useful tool for the overall management and monitoring of the court system i.e for case management, human resource management etc,” he said.
On the impact of covid-19 on the bar, Lawyer Taal said Covid19 has adversely affected the work of the bar as the courts were closed for a good part of 2020 and their work load declined significantly .
“In 2021, hearings have resumed fully but it is still slow in general as the economy has not picked up. 2020 and 2021 are difficult years for the entire country and the bar is no exception. Lawyers also suffered the brunt of the impact of Covid19,” he said.
President Taal said their work involves daily interaction with clients, colleagues and judges.
“We now have to adapt to the new reality of wearing masks, physical distancing and avoiding face to face interactions. For instance, we have to invest in new technologies and equipment to be able to work effectively. We had to maintain and pay our staff for entire time, our practices were not operational due to the SOPE and suspension of hearings,” he said.
Lawyers’ work according to the bar president, is risky because the courts- are meeting points where different people converge and their offices are frequented by clients from all works of life.
On the major challenges faced by members of the Bar during this time, President Taal said the major challenge is adapting to the new way of working – that is virtual or hybrid mix of virtual and physical meetings.
“Lawyers are typically very conservative and like to cling on to their traditional way of doing things. Aside from the reluctance of some lawyers, particularly the older generation, there are challenges in terms of the governing rules for virtual courts. The volatile internet connectivity has also been a challenge,” he said.
He added: “But I think every adverse situation also presents opportunities and we were forced to innovate to be able to continue our work. It’s maybe a blessing in disguise in the sense that the judiciary is now on the verge of digitising its entire processes and the introduction of the virtual courts is the entry point. As lawyers; we also have to adapt to the new norm of embracing virtual tools to deliver services to our clients.”
He said the Gambia Bar had to adapt to the new situation and this was why they held their virtual Annual General Meeting (AGM) last week Friday.
“The turnout was very impressive and I must say it’s one of our most successful AGM`s,” he said