Access to the Law
5 November 2012
[Remarks to the Access to African Supranational and Regional Law Seminar, 5-6 Johannesburg, South Africa]
Given the time available I have decided that the best use of this time is simply the telling of the story of nascent Seychelles Legal Information Institute in the hope that it will illustrate the law and policy or probably the lack thereof with regard to access to legal information on the continent of Africa; the existing initiative in the Republic of Seychelles and its impact so far; and the road map for the future.
In August 2009 I assumed the office of Chief Justice of the Republic of Seychelles, heading the Judiciary and in particular the Supreme Court and all subordinate courts thereto. The Court of Appeal, our appellate court and court of final resort is headed by the President, Court of Appeal. After swearing into office at State House on 21stAugust 2012, I reported to my office for the first time in the afternoon of that day. I was welcomed by the Acting Chief Justice who showed me to my chambers and gave a few introductory remarks.
By my desk was a set of 1991 edition of the Laws of Seychelles which was incomplete. I picked up one of the volumes and my colleague remarked, ‘By the way those are out of date. Do not rely on them.’ I then looked at the book case across at the wall. I saw the Seychelles Law Reports. They stopped at 1987 or thereabouts! I wondered at what I had walked into. How was to find the correct law to apply in the cases before me?
I thought surely Seychelles is a SADC country and perhaps Safli will at least have copies of the decisions of their courts. It was my next point of call once was I was connected to the internet. Indeed there were cases from the Supreme Court of Seychelles. But there were only 20 decisions! Not very helpful if the collection was that meagre! The Supreme Court had 6 judges who sat alone! They must have produced more judgments than what I had seen! The Court of Appeal had 3 sessions a year and must surely produce more than 20 judgments a year! There was none posted on the Saflii website.
I must say that for sometime Saflii [and its predecessor website by the University of Witwatersrand featuring Constitutional Court of South Africa’s decisions], and the Kenya Law Reports, were the only websites that offered any online publication of the Superior Courts decisions in Southern, Central and Eastern part of Africa. Prior to my assumption of duty in Seychelles I had collaborated with Saflii, leading to the creation of the Uganda Legal Information Institute. Uganda had only been marginally better than Seychelles at the time I started our collaboration in the early 2005/2006. The problems were not very different.
As I had done with Uganda So I did with Seychelles. I engaged in regional partnerships or cooperation. I shouted for help to the African Legal Information Institute which was then just setting up shop, after the re-organisation of Saflii. The African Legal Information Institute responded with great support. Kerry Anderson of African Lii and Thomas Bruce of Cornel Legal Information Institute visited and made on the ground assessments of the situation and some recommendations of the way forward.
With the available electronic materials African Lii built a website that provided initially a Finding List of primary statutes and secondary legislation in force at the time, kindly made available by researcher with an interest in Seychelles Law, statutes and statutory instruments that were already available in electronic form, and decisions of the Superior Courts that were available and others as they became available. We formally launched this website on the 7th March 2012.
Free Online Access to Seychelles Law was my answer to the question I asked myself on my first day, ‘Where was I to find the law I was to apply?’ The vehicle for this to happen was the partnership/cooperation with African Legal Information Institute, and its principal funders, the South African Litigation Centre.
And even if the laws of Seychelles had been update and available in hard copy and the law reports of Seychelles had been available and up to date the need for online available of the primary legal materials in Seychelles would still exist. The absence of updated availability of the primary law materials just made it more urgent to provide for free online access.
It is difficult to decipher what Government policy is towards to the digitalization of laws and providing online access as officials of the same and or different arms of Government have different responses to the matter. Recently while answering questions in the National Assembly the Vice President indicated that the current law revision exercise is likely to be completed in August 2013. This is the new consolidation of statutes and statutory instruments in one edition as at 2009. This exercise started in August 2009 prior to my assumption of duty.
In an amendment to the Statute Law Revision Act, Chapter 232, by Act No. 3 of 2010 a new provision was introduced that for the first time recognises the electronic age in legal publishing. It states,
‘13.(1) The Commissioner shall cause to be prepared and made available a read-only version of the revised edition of the Laws of Seychelles.’
It is not clear why it provides for a read only version but I suppose it was the understanding of the either the Attorney General or the Commissioner for Law Revision that if they had to release electronic version, of which there must be a copy before they go to print, in order to protect its integrity it had to be a read only version. With the utmost respect I think the legislation is misguided in this respect. If the product ever sees the light of the day I assume there can only very little interest in a read only version.
Many of the consumers of the law would wish to have a version they can work with, copy if necessary for whatever purpose. There may be others who may be interested in adding value to the same with other works, for instance linking it to decided decisions of the courts.
This provision more than anything reveals either the absence of policy in this area or the attitude of key Government officials concerned with publication of the law.
Prior to the said legislation it was known that the Attorney General’s Chambers had the 1991Edition of the Laws of Seychelles in a soft copy / electronic version. Secondly all legislation that had been prepared thereafter was prepared on a computer including the final versions as assented to by the President. No official acknowledgement is made of this situation. Likewise at publication stage the process uses an electronic copy, in type setting and so there are versions of electronic copies available that could easily have been made available. The Attorney General’s Chambers which is the Official Publisher of the Laws of Seychelles has no website to date. All this perhaps is illustrative of Government policy or the absence of an effective Government policy with regard to access to the law in a modern environment. Against this background it may therefore not be surprising that at this point in time the Official Publisher of Seychelles laws hopes that he will be obliged to make available only a read only version.
My experience elsewhere suggests that opposition to publication of electronic copies stems from the mistaken belief that if they do so they will not be able to sell hard copy versions which they will have produced at great expense. They couple this with the claim that they would like to protect the integrity of the law so that it is not wrongly changed. These reasons do not hold water. Availability of electronic versions does not inhibit sales of hard copy versions of the laws generally. And in small jurisdictions the cost of producing hard copies will always be high given the small market for that type of literature available locally.
It is important Governments and Inter Governmental Organisations that produce primary legal information (as well as secondary legal information) develop policies that are consistent with the Declaration on Free Access to Law which states in part,
‘Public legal information from all countries and international institutions is part of the common heritage of humanity. Maximising access to this information promotes justice and rule of law; Public legal information is digital common property and should be accessible to all on the a non-profit basis and free of charge; Organisations such as legal information institutes have the right to publish public legal information and the government bodies that create or control that information should provide access to it so that it can be published by other parties.’
It has been noted,
‘Enabling public access to court related information is associated with numerous benefits for the integrity and efficiency of the justice system. Publication of judgments allows the public, press, civil society organisations, lawyers, judges and legal scholars to scrutinize the actions of judges. Submitting judgments to public scrutiny through publication also regularizes the application of the law and makes judicial decisions more predictable and consistent, thus improving the quality of justice.’
It is therefore important that Governments are encouraged to develop a policy that allows free and open dissemination of primary legal information as this serves the public interest.
Seychelles Legal Information Institute Website: Http://www.seylii.org
At the Seychelles Legal Information Institute we decided to publish the available 1991 edition on our website. We are also updating with the other statutes and statutory instruments up to June 2012 by awarding a contract to a former Legislative Draftsperson, and now practising Attorney to update our electronic version up to June 2012. We shall in house scan the remaining legislation and upload it in order to get up to date with regard legislation.
For the case law we started with the latest decisions available and intend to work our way backward to bring into the online database as many decisions as possible. From the twenty decisions we found online we now have a total of slightly under 1000 decisions of the Court of Appeal, Constitutional Court and Supreme Court.
The Editorial Board of the Seychelles Law Reports, has authorised Seychelles law reports to be published on Seylii and we shall be doing so shortly. This includes old copies and the new editions coming out now.
The fact that Seylii is based in the Judiciary of Seychelles would suggest that collecting judgments would be one of its least problems. No, that is not true. But it has improved tremendously. We are rather a small jurisdiction. Nevertheless it requires a dedicated staff to do this and continuous reminders to the judges to provide the electronic copies of their decisions.
As noted above the greater challenge has been to obtain electronic copies of the legislation that are known to exist within the Attorney General’s chambers. In spite of the President’s Office, in which the office of the Attorney General is based, being supporting of Seylii this was not forthcoming. However with the financial support of African Lii and its funders we are about to overcome this situation. We have contracted a service provider to deliver to us a consolidated electronic version of the Laws of Seychelles as at 30 June 2012.
Through the use of part time staff we plan to scan both the newer legislation and the older court decisions and continue to bring them online.
We have one coordinator, Mrs Thelma Julie, who is head of our Library Services at the Supreme Court of Seychelles. It would be helpful if we were able to recruit a full time staff, for a instance Law Reporter who would be work full time on content creation for Seylii.
It is clear that online publishing of primary legal information is the cheapest option in ensuring access to the law to the largest number of consumers and users of law. It provides a quick start to many jurisdictions that had fallen behind with the publication and consolidation of statutes, law reports and other secondary legal materials like law reform commission reports, reports from judicial inquires, and a growing body of supra national and regional law that applies on the continent.
I was talking to one lay person who revealed his joy at finding Seychelles Courts decisions online. He had become a regular visitor. As a business person his interest was tracking reliability of people he may deal with in the business world. I realised then that the audience is quite diverse with equally diverse interests and diverse application of information available. It is not only lawyers and judges or legal scholars and their students that have an interest in this information. The audience is much wider than we may have imagined initially.
We now see in the courts citations of cases that attorneys have printed off Seylii, an indication that Seylii is meeting our initial expectation of providing a research tool to the legal profession in Seychelles.
Applicable laws in a jurisdiction are often not only national laws but also supranational and regional laws in the form of international treaties and decisions of related judicial bodies. The African Union with the African Commission and African Court of Human Rights easily comes to mind as do SADC and the SADC Tribunal. There is the Comesa and the Comesa Court of Justice, the East African Community and East Africa Court of Justice; to mention only a few. The only reliable access to their statutes, legal instruments or other binding documents and decisions of the judicial tribunals is by way of online access. Many of these institutions have websites on which these are published. However there is little value addition in the way the information is provided. Helpful as it is now I see a role for the African Lii, developing a supranational and regional portal that is well indexed, text searchable, with head notes provided for decisions, the content of which could be hyper linked to exact provisions of instruments that they are interpreting. National Liis could then link onto this portal . This will strengthen national understanding of supranational and regional law and their persuasive value in national decision making. It would highlight too the opportunities available for individuals enforcing their rights beyond national boundaries.
Post Johannesburg – Way of Forward
In terms of policy development it may be important that African Lii develops a programme or an activity that targets Attorneys General or all authorities on the African continent responsible for publication of laws to get them to agree to the Free Access to Law principles and the duty of National Agencies providing access at cost of national legislation without restriction for further value addition and re-publication. I know that Commonlii had got the Attorneys General of the Commonwealth to sign up to a similar undertaking. Such a programme could bring the Attorneys General update with what is happening in many other jurisdictions world wide whereby official publication of laws online is accepted.
Continued support to and collaboration with national Liis on the continent to improve quality of primary legal information available online is essential.
Establish a supranational and regional law portal that national liis may link into to increase access and visibility of supranatonal and regional law
Much as there is no single business model for successful national liis it is important that African Lii, as the mid wife, of many of the national liis on the continent, continues to ponder, research and colloborate together with national liis on what may prove to be successful business models that will assure the sustainability of national liis, even in the absence of initial national champions that helped give birth and establish the national liis.
Sustainability and growth must be at the centre of all our efforts.
I thank you for listening to me.
Declaration on Free Access to the Law
Resource Guide on Strengthening Judicial Integrity and Capacity, UNODC, Page89