Just like the inevitable thunder of the "smoke" of the Zambezi at Victoria Falls, where this year's Southern African Chief Justices Forum conference took place, so is the flood of the Fourth Industrial Revolution engulfing the African justice sector. The theme of the conference was The Judiciary and Technology in Africa. In my presentation to the Forum, I proposed that African judiciaries have an opportunity to engage with the technologies shaping the Fourth Industrial Revolution now. This engagement should focus on formulating policies and practices that support equitable development of new technologies in the justice sector and in a way that ensures respect for human rights, transparency, efficiency and enhanced access to justice. In addition, judiciaries should invest in programmes to train judges and equip the judicial administration with the necessary interdisciplinary skills and knowledge to fully engage with this new reality.
The Southern African Chief Justices Forum (SACJF) provides a formal platform, structure and framework through which the Chief Justices of Eastern and Southern Africa can collectively reflect on critical issues on justice delivery and adopt action plans to address those issues in a systematic and sustained way to strengthen justice delivery in the region.
AfricanLII has worked with the SACJF since inception and is a formally recognised resource partner, assisting African judiciaries with publishing and disseminating judgments via dedicated free-access portals. The Chief Justices of the Forum have always been receptive to ideas and projects promoting judicial resourcing and facilitating access to justice.
Similarly to our initial engagement with the Forum 15 years ago, when we discussed strategies around digitisation in the judiciary, we are now at a point where Judiciaries within the SACJF have to consider their strategic positioning within the growing momentum of the fourth industrial revolution.
The most recent Conference and AGM of the SACJF were held in Victoria Falls, Zimbabwe, over 23-25 September 2021 and focused on how African judiciaries interact with technology. The conference discussed case management systems, online court hearings, automated processes, digitalisation, decision support systems and robot judges. However, while African courts were sharing experiences of successful transitions to online courts in the face of a crippling pandemic, many remained sceptical about our legal systems engaging with automated justice. At least not yet.
In my presentation at this conference, I proposed that while the Fourth Industrial Revolution may still appear to be years ahead of us, there are a few areas that Judiciaries in the region can engage with today.
Africa hasn't digitally transformed as quickly as other developing, or developed regions have. However, there have been significant improvements in information and communications technology in recent years. For example, there is a broad consensus that African countries have led in mobile services, such as the deployment of fintech for developing contexts. ICT services on the continent generate millions of jobs and economic value for the region. There is no doubt that digitisation has helped us increase efficiency and growth.
As African countries prepare to conquer and transition from the era of digitalisation of systems and services into artificial intelligence and ubiquitous computing, the continent's leadership has begun engaging with and defining the parameters of policy and laws, establishing a conducive and equitable environment for the 4IR in Africa.
I propose very broadly that African judiciaries should engage with the 4IR in at least four ways:
- Judiciaries should anticipate change, shape policy.
National and regional judicial task forces should consistently monitor, consider and propose solutions for the judiciary's engagement with new technology. Judiciaries should participate, to the permissible extent, in shaping policy, law, and regulation relating to the application of new technologies to the justice sector, specifically as it concerns the application of technology to the judiciary.
- Judiciaries should capacitate, train and upskill judicial officers.
There is a need to enhance judges' capacity to engage with and dispose of cases where substantive issues touch on or integrally concern ICTs.
While ICTs were a niche matter in the past, the 4IR will, if not already, enter the African courtroom. Legal issues relating to artificial intelligence, the blockchain, and other new technology, are increasingly being litigated before African judges. In recent years, we have seen an increased volume of cases on the use of social media, cyber or Internet criminality, online contracting between businesses and individuals, and businesses and other businesses. The importance and volume of such cases will only increase in future, and every magistrate and judge should be equipped to deal with them.
- Capable administration and solid infrastructure.
Judiciaries should consistently capacitate their administrations with the skills and knowledge necessary to respond to the demands of the 4IR. A strong and effective judicial administration is adequately staffed with judicial officers aware and awake to domain-specific technology applications. In addition, registries and judicial administrators should be equipped with interdisciplinary skills and credentials in ICT, management, and law to support next-generation ICT deployment in African courts effectively.
- Data is the new oil.
Data is the new oil – this is trite but fundamentally important for any organisation operating in the digital age. Judiciaries are no different and should develop and implement consistent policies and practices for data generated by the government's judicial branch. These policies should be developed in a culturally sensitive way, offering opportunities for growth and development in the justice and legal sectors while protecting and advancing the rights of litigants.
Policies, principles and roadmaps for the use of AI
Judiciaries, judicial networks, and judicial councils internationally have in recent years been increasingly engaging with the domain of artificial intelligence and justice. I will mention only by name here UNESCO's work on Artificial Intelligence and Digital Transformation, the Indian judiciary recently endorsing the "Responsible AI for the Indian Justice System – A Strategy Paper" by independent think-tank Vidhi Center, and the more established Council of Europe's "European Ethical Charter on the Use of Artificial Intelligence in Judicial Systems and their environment". Unfortunately, in my research thus far, I did not come across any position papers or other pronouncements on the matter by African judiciaries.
Why should African judiciaries concern themselves with issues of the 4IR?
- AI, machine learning, cloud computing - technologies of the 4IR - are still at an early stage of being designed, developed, and deployed on a mass scale in our jurisdictions. Judiciaries should get a seat at the table now to ensure their views are considered.
- The change new technologies bring is rapid. Judiciaries can be caught off-guard, with traditional policy and laws quickly become inadequate. There is danger in permitting private sector participants to shape and lead processes and technology that ultimately affects the justice sector.
- The 4IR will bring tools that will aid and assist judges in dispensing justice. These tools must be built openly and transparently to ensure no undue (intended or unintended) influence.
Technology supports administrative efficiency.
New case management systems are being deployed across the region, helping speed up justice. AI and low-level machine learning algorithms can help automate routine tasks such as scheduling hearings, creating cause lists and allocating matters to judges. Next-level technology, using the advantage of electronic filing, could aid with discovery and evidentiary issues.
Evidence-based policy, monitoring and evaluation of the justice sector
Algorithms are being used to extract knowledge from publicly judicial data. For example, the LawTech Lab at the University of Cape Town, which I am part of, recently completed a pilot study on briefing patterns in selecting South Africa's superior courts. We looked at gender and race representation amongst legal practitioners appearing in court. The LawTech Lab used publicly available judgment datasets, combined with public demographic data from the Legal Practice Council. The results of this research, we hope, will assist the South African judiciary in measuring the implementation of long-standing policies on the transformation of the legal profession. The same project construct can be used to query data and answer other substantive questions and assist the judiciary with evidence supporting the implementation of strategic priorities.
Support (not supplant) adjudication
Prof. Susskind delivered the keynote address at the SACJF conference. The talk touched on the roles of AI in support of Courts of the future. AI, he said, will help innovate justice delivery. For example, online user interfaces guiding litigants, systems helping with legal risk management, predicted outcomes, linked to automated determinations in less-complex cases through to dispute avoidance – all geared to make justice more efficient.
Let me give AfricanLII's experience as an example. AfricanLII capacitates African judiciaries to collect and digitise court judgments and build online research portals. Over the past decade, these research portals have become indispensable online research resources for the African legal and justice sectors.
We've recently begun using automation and machine learning techniques to transform this digital information into legal knowledge that supports adjudication, for example:
- We can now automatically classify judgments in 50 categories, e.g. labour law, family, privacy, commerce, delict/tort, among others.
- We have extracted and correctly allocated citations for thousands of African national and regional cases, allowing judges to follow precedent and its application across local and regional courts
- We can extract citations to national and regional legislation automatically.
These three recent developments were possible because of the commitment of the SACJF to digital record-keeping of judicial data and the free distribution of judgments in the region. Moreover, these developments lay a foundation for creating tools, more sophisticated than our research portals, that will support efficient dispensation of justice (e.g. judgment writing tools and support).
Principles of ethical use of AI in the judiciary
These are all very positive examples of the use of AI in the judicial sector in Africa. However, as models from other jurisdictions reveal, we need to be careful and set parameters for using AI with judicial data. The Council of Europe's ethical guidelines are helpful in this regard and should be considered by African judiciaries. Important principles to keep in mind include respect for fundamental rights, non-discrimination, data quality and security, transparency and fairness and user control.
Finally, I wish to re-emphasise the role of data and the need to intensify efforts in the judiciary for proper record keeping, storage of judicial data in an open and accessible format, free from vendor lock-in, and available for public use. In this way, we will unlock the development potential and value of judicial data for the benefit of all justice sector stakeholders.
Creating and maintaining an appropriate data infrastructure – court processes and judgments data, alongside sensible and contextualised data and AI policies, is something entirely achievable today that will set African judiciaries on the path to full participation in the fourth industrial revolution.