The theme of the 2021 Southern African Chief Justices’ Forum conference was ‘The judiciary and technology in Africa’. As readers might expect, there was considerable focus on the switch, in many jurisdictions, to virtual court hearings because of Covid-19. But that’s not all that was on the agenda.
Read SACJF conference opening address (PDF) by Professor Richard Susskind
For many at the conference, it would have been the first in-person gathering of this size since the start of the pandemic in 2020. If so, it would have been worth the effort. The theme, ‘The judiciary and technology in Africa’, is one that surely troubles, excites and challenges virtually everyone working in this field.
How is it possible that, almost overnight, courts and those who work in them, were able to move from the traditional format to online hearings? Keynote speaker, Professor Richard Susskind, legal futurist, expert on artificial intelligence and the courts, and said to be the originator of the concept of online courts, pointed out this unexpected development. While judges and lawyers were often seen as conversative and resisting change, in fact they have been able to embrace the new developments quite quickly, and in no fewer than 168 jurisdictions, some form of remote court is now operating.
And they are not merely operating – the conference audience heard that some are actually doing better now, and proving more efficient in their virtual format than before.
From the African Court on Human and Peoples’ Rights, Grace Wakio Kakai, head of the court’s legal division, said that though human interaction suffered, virtual sessions had actually been more effective than the traditional court systems.
Another regional court, the East African Court of Justice, provided even more evidence that the new system could produce good results. Speaker Geoffrey Kiryabwire, a member of Uganda’s court of appeal and vice president of the EACJ, produced some startling figures comparing the number of legal issues handled to completion by the court in 2019, before anyone had even heard the word ‘Covid’, and in 2020 when a switch to virtual hearings became essential: a total of 59 matters were completed in 2019 but that number more than doubled when in-person hearings were no longer possible.
These figures would not have surprised Susskind had he heard them (he addressed the conference by video-link from the UK, and was not ‘present’ during the time of those presentations).
During his address he drew a distinction between automation and innovation and suggested that the judicial response to Covid has been to accelerate automation, rather than to increase innovation.
‘What we’ve essentially done is to drop conventional hearings into Zoom or Teams or some kind of video conference. We haven’t much changed the underlying participants.’ They were still the old crew: ‘Still judges, still lawyers, still similar rules and similar processes’.
‘I don’t think the future has yet arrived. I don’t think home working is a full transformation of a court system. I don’t think dropping hearings into Zoom is a shift in paradigm as commentators want to suggest. We are still at the foothills of change.’
In the view of Susskind, the elephant in the room was worldwide inadequate access to justice. ‘Increasingly, the way we practice law and administer justice feels out of step in a digital society.’
‘The problem is not unique to Africa; it’s a global problem. It’s the global access to justice problem. In some countries, the backlogs are staggering. In Brazil for example, there’s a backlog of some 80m cases.
‘We have to think more fundamentally.
‘The first 60 years of court technology has been about automation, crafting new technology onto our old ways of working, systematising our traditions. Often that delivers “mess for less”, and it doesn’t address the fundamental problem.
‘Instead I ask you to think beyond automation to innovation, by which I mean using technology not to support or enhance our old ways of working but fundamentally to change our old ways of working – to disrupt, to replace, to displace – to allow us to deliver better access to justice in a digital society. I don’t think you should be assembling in your [meeting] room to discuss automation. You have to go beyond computerising what you already do if you want to deliver better access.’
Susskind made several points about the video hearing, now the default way of conduct court sessions in many jurisdictions.
‘The first is that they have worked rather better than most lawyers and judges would have expected. If you had suggested video hearings in early 2020, most lawyers and judges would have said it’s not possible and certainly not desirable. But in practice, for many cases, they have worked rather well.
‘Secondly, we find that judges and lawyers actually can adapt quite quickly. It’s often said that lawyers and judges are conservative, resistant to change. But that doesn’t mean if the platform is burning, if the iceberg is melting, that judges and lawyers cannot adapt. The response to Covid has shown that judges and lawyers can indeed embrace technology.
‘The third observation I would make is because of the use of these systems and services online many legal minds have been opened to new ways of working. Some legal minds in fact have been changed. I also acknowledge that an absence of technology in some jurisdictions and poor technology in others, has been a problem. You cannot satisfactorily offer video hearings unless the enabling technology functions.
‘But here’s one thing to think about: the enabling technologies you see today are the worst they are ever going to be from now on. Our technologies are getting better and better and as I say, in Africa, increasing investment and deployment of these technologies. We cannot judge the acceptability of Covid technologies for the future simply by looking at today’s short-comings. We have to anticipate and indeed urge improvement in technology.
‘I would say as well, that Covid has had an unfortunate polarizing effect in the legal world. Some lawyers and judges say we should never go back. We should use video hearings more extensively. This is the future. But others are saying we cannot wait to go back. As soon as we can we should dismiss all this technological nonsense and return to proper legal and court work.
‘I sit somewhere in between. I think the future will be a blend of traditional hearings and video hearing and of online courts. I don’t think we should be dogmatic and insist on one way or the other. I think we should find what suits our legal system and what suits different kinds of cases. But I underpin again my major point: that if we continue as we have always been, offeingr physical court hearings, we will not crack the access to justice problem.’
Read Susskind’s address for his challenging ideas about what ‘innovation’ , rather than further automation, could look like for access to justice.