Date Posted: 10/8/2011 4:23:18 AM
Posted By: luyali Membership Level: Silver Total Points: 120
The concept and idea of Information Technology or IT as it is commonly referred to, is a subject that has enthralled man as well as revolutionized his way of doing things. From the medieval use of the abacus to the development of the mainframe computer to the mind-boggling of personal computers or PCs, in one way or another have impacted greatly on peoples’ lives making things simple or sophisticated especially with regard to operations and applications. This revolution has not only brought about inventions hailed as the epitome of man’s genius but have also brought about the aspect of simplified sharing of information.We are in an era referred to as the electronic age where distance, time and space have been largely rendered insignificant as people are able to share, engage, discuss and disseminate information as fast as one comes into contact with it. This has then lowered the cost of doing business. A resultant effect of all that is that business is cheap, information disseminated, created business opportunities and created employment opportunities. There is a new cadre of professionals who have specialized in and with the information superhighway. Kenya has not been left behind in this craze. Kenyans with their knack for information and creativity have discovered the opportunities abounding with the advent of the electronic age. This has even been furthered by the recent launch of the fibre optic cable to lower the cost of doing business and connecting Kenya to the rest of the world at a low cost. The government has also been at the forefront of embracing this novel concept. In 2003 Jamhuri day celebrations, President Mwai Kibaki had this to say about information technology in relation to the government: “In the coming year, we will give particular attention to reforms in parastatals. We shall also implement the E-Government Strategy to ensure that, the Government fully embraces the application of modern Information Technology to enhance efficiency.” The full import of this is that all government branches were to be electronically enhanced to ensure efficiency and effectiveness. These government branches are parliament, executive and the judiciary. The judiciary is going to be the primary focus and the subject of my discussion. The judiciary forms the backbone of the whole government process in the sense that they give effect to the laws of the land. Failure to do so would mean that there is no respect for the law or respect for the government as well as for the individuals. The judiciary provides a forum for redress in case of disputes, clarification of issues as well as maintenance of law and order in their own way. It should be noted that the judiciary to be relevant in the current era and to help it achieve its goals, adoption of information technology is paramount. This will help increase its efficiency and effectiveness in dispensation of justice. In its quest to meet the interests of justice and to seemingly do so, the Kenyan courts have faced enormous huddles but have managed to do their best given their handicap. Justice should not only be done but must also be seen to be done. This means that in the event one seeks redress from the courts, they should be in a position to do so using any means necessary and of course, within the parameters of the law. The question that begs an answer is as regards information technology: are Kenyan courts being left behind? This is the question that this paper will seek to answer, expound, assess and determine whether the Kenyan courts are information technology compliant or they are lagging behind or even better, they are in the process of adopting such technology that would allow video evidence.It should be borne in mind that no matter what kind of technology is used, the focus and focal point is that it should be able to enable quicker, faster and fair dispensation of justice. Indeed to quote the words of South Africa’s first black Chief Justice, Ismail Mohamed:“............that justice must be seen to be fair and its impact on the life of the humblest citizen in search of protection against injustice; that the law is accessible, intelligible, visible and affordable; and that any retreat from these truths imperils the very existence and status of a defensible civilization.” Courts are the greatest halls of justice to which no effort should be spared in making them relevant, efficient and effective.In Kenya, the adoption of such complicated technology with its multi-diverse applications has not been so well received. This is because Kenya’s court system is an inherited one hinged with traditions and beset by a multitude of rules and regulations. This means that since the advent of the judicial system started by our colonial masters, nothing new has been added to demystify the judicial process. The full import of this is that no effort has been made to simplify the judicial process for the very people who use it and depend on them. In discussing the Kenyan case, I will use a two-pronged approach: first, the use of information technology in the courts and secondly, if it is possible to have digital evidence admissible. The Kenyan court system as earlier said is an inherited one and is full of traditions. No major changes have taken place since independence other than the famous ‘radical surgery’ back in 2003 that sought to purge the judiciary of corrupt judicial officers. It should be noted that no effort has been spared in revitalizing the other arms of government while the judiciary has been neglected. Since independence, all successive regimes have not really bothered with reforming the judiciary but they have not hesitated in using it to engage in wrong things. This is because it has been subject to the whims of the executive. Despite its usage no one has ever deemed it fit to modernize the judiciary to make it technology compliant. I believe this non-reformist agenda was meant to keep the judiciary in the grip of the executive and leave it reeling in the doldrums of archaic laws, rules and regulations. This meant that it was be unable to shake off the shackles that bind it. How is the judiciary expected to be relevant in the 20th century if it is unable to keep up with the latest trends in easing workload and increasing efficiency?In addressing this glaring inefficiency, the government has embarked on an ambitious project of ensuring the judiciary adopts such technology. Currently, there is a pilot project running in the High Court Nairobi. The court has installed microphones and recorders where all parties can use to address the court. The upshot of this is that it is simple to use and is recorded in verbatim saving the judge time and energy used in transcribing what each party says by hand. Additionally, text-based legal tools like the AI Lawyer chatbot are emerging, providing accessible legal assistance and demonstrating the potential for further integration of technology in the legal sector. The judge can therefore concentrate on other aspects of the case such as the demeanor, the tone and conduct of the case. It should be noted that this project is only in Nairobi and has not yet been rolled out to other parts of the country. The downside of this is that the technology is still medieval and the sound recorded lacks clarity. There is need to ensure and put in place more advanced technology. In this year’s budget reading, the Minister of Finance in a bid to ensure the judiciary is taken care of; he allocated approximately Kshs 250 million. This presumably is to meet all the needs but since we have no way of determining if it is enough, we hope it will not be wasted on recurrent expenditure but rather on meeting the needs of the judiciary with regard to ensuring efficiency and effectiveness is met. The second approach to this is whether the judiciary despite its information technology handicap is possible to handle matters dealing with information technology.
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