This is the first in a two-part series written by Amy Sinclair and reflecting on free access to law and discussions on the subject at the seminar on freedom of expression & safety of journalists for judges in Africa held in Kampala, Uganda on 29-30 October 2019.
In the Case of Szücs v. Austria the European Court of Human Rights observed that ‘[t]he ability of citizens to access court decisions protects against the administration of justice in secret, and is a means to maintain public confidence in courts.’ Free access to court decisions in the African context was the topic of a presentation to a gathering of continental judicial leaders on the sidelines of the 4th African Union Judicial Dialogue in Kampala, Uganda last week.
As the Managing Editor of the the African Legal Information Institute (AfricanLII), I led a frank discussion of the ideological and pragmatic justifications for online free access to law in Africa. Free access to jurisprudence is, as one participant wryly observed, seemingly a ‘no-brainer’ for demonstrating the rule of law and promoting public confidence in the courts. Less obvious, perhaps, are the more pragmatic justifications. Providing universal access to law may allow more disputants to negotiate and resolve conflicts without recourse to expensive and disruptive litigation. Access to records of criminal proceedings where court procedures, legal standards and sentencing considerations are articulated may afford unrepresented criminal defendants an opportunity to make informed decisions about their plea and trial strategy. In both civil and criminal matters, fewer and better-informed parties can save judicial officers valuable court time, improving completion rates. Equally, up-to-date, searchable and cross-referenced online collections of case law, available on a laptop or smartphone, capacitate the legal profession to more efficiently and accurately assist the court in pleadings and oral argument. Finally, providing access to the full text of case law in a timely manner provides the media with an accurate source of information from which to produce quality journalism, mitigating the risk of ‘fake news’ based on supposition or hearsay.
Judicial leaders also discussed political and logistical challenges to online access to law in their home jurisdictions. Through case studies of Kenya Law and Uganda LII, the gathering heard how Legal Information Institutes (LIIs) in Africa are overcoming these challenges. LIIs are local non-profit organisations set up with the goal of giving effect to free access to law in their home country. There are multiple models operating across the continent, and the world. They go from highly formalised and established organisations with concrete connections into government and judiciaries, to small one-person operations inside the law faculty of a local university. From these case studies, it was demonstrated that LIIs are most effective when an independent professional staff has a mandate from and strong integration with the judiciary.
Judges were surprised to learn of the proliferation of LIIs in Southern African jurisdictions, and the benefits already being reaped by the profession, citizenry and courts as illustrated in a recent independent MySociety report. The question of how the LII model could be applied in French-speaking countries was raised by many participants. The response: “Affaire à suivre...”.[*]
Or, for non French speakers, ‘Watch this space ….’