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| Participants, via Zoom, of the August 31 Southern African online roundtable hosted by ABA ROLI. |
On August 31, 2020, the American Bar Association Rule of Law Initiative (ABA ROLI) held a Southern African online roundtable on access to justice in the context of COVID-19, through its Advancing Rights in Southern Africa (ARISA) Program. Geared towards ABA ROLI’s regional partners, most of whom work in civil society, the roundtable discussed the current challenges faced by legal practitioners. These challenges include navigating the COVID- 19 lockdowns, and ensuring clients continue to access justice during the pandemic— despite changing court rules, and operating procedures.
Since 2018, ABA ROLI has been an active member of this four-member consortium designed to promote human rights in Southern Africa. The five-year project aims to work in nine Southern African countries: Angola, Botswana, Eswatini, Lesotho, Madagascar, Mozambique, Namibia, South Africa, and Zambia. The consortium’s four thematic areas include: women’s customary land rights, indigenous peoples’ rights, media freedoms and digital rights, and the protection of human rights defenders. In conjunction with the launch of the consortium, ABA ROLI supported two regional workshops. Both focused on strategic litigation for women’s customary land rights and indigenous peoples’ rights, as well as advocacy on cybersecurity legislation.
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| The four-member consortium seeks to promote human rights in Southern Africa, specifically the nine countries highlighted above. |
Through the consortium, ABA ROLI is responsible for the Program’s Intermediate Result Number two, “Strengthen the capacity of regional and local civil society actors to seek redress of rights violations.” In line with this objective, ABA ROLI convened this online roundtable for our regional partners litigating cases within ARISA’s thematic areas — women’s customary land rights, the rights of Indigenous Peoples, the rights of human rights defenders’, media freedoms, and digital rights. Other invited guests included lawyers in private practice undertaking interest litigation and providing legal aid to citizens in the Southern African region.
The webinar presenters were Ms. Elsy C. Sainna, Head of Programmes and Research at the International Commission of Jurists (ICJ), Kenya; Mr. Kaleb Gamaya, the Chief Executive Officer of the Tanganyika Law Society; Ms. Mabela Lehloenya, the Project Manager of the International Federation of Women Lawyers (FIDA) Lesotho; and Ms. Twaambo Musonda, the Registrar of the Subordinate Courts in the Judiciary of Zambia. In their respective discussions, the presenters shared their experiences in seeking, facilitating and ensuring access to justice for their clients and citizens and reflected on the lessons learnt in the process.
Ms. Sainna addressed the broad access to justice lessons from Kenya, giving examples from her work with the International Commission of Jurists (ICJ) and other civil society partners in Kenya. She discussed the issues that ICJ Kenya identified during the pandemic and how the organization responded to some of the legal challenges the pandemic presented. She reflected on the African Commission on Human and Peoples’ Rights (ACHPR)‘s Statement on March 24, issued after COVID-19 was declared a global pandemic and its call for African Union member states to adopt a rights based approach in responding to the pandemic. She spoke about the negative impact COVID-19 lockdowns have had on access to justice throughout the country- in relation to the shortage of judicial officers in Kenya, and the limited budgetary allocations to the judiciary.
Mr. Gamaya, highlighted the various ways in which the Tanganyika Law Society adapted its operations during the pandemic to meet citizens’ access to justice needs. The Law Society limited its physical contact with people seeking legal aid services, and instead implemented the use of a deposit box for clients to submit their cases to the Law Society. Clients completed a form with their submitted cases and a Law Society staffer 1) collected the forms at the end of the day and 2) perused the documents and contacted the clients to provide remote legal advice. If cases were deemed urgent, they were taken to court, following an agreement with the judiciary to bring such cases to court. The collaboration with the judiciary ensured that the most vulnerable and those with urgent cases were still able to access justice during the pandemic.
Ms. Lehloenya, discussed how restrictive COVID-19 measures have negatively impacted rural women in Lesotho. She noted that there was an increase in gender-based violence cases during the lockdown period in the country. Although the government set up toll free hotlines for individuals to report gender based violence cases, many rural women did not do, so because they did not have access to cell phones and internet services. They were therefore unable to contact police, social and/or legal services for help. Rural women were also afraid to leave their homes to report to the police stations because they had witnessed soldiers physically assaulting people for not staying indoors in accordance with the lockdown protocols. They, therefore, feared meeting the same fate. In addition to the above, rural women were unable to travel to the city to access the courts, and other justice institutions because transport services were suspended during the lockdown.
Ms. Musonda, concluded the presentation. She informed the participants that in response to the pandemic, the Chief Justice of Zambia issued precautionary guidelines that resulted in the scaling down of court operations. Civil cases were only heard if they were considered urgent. This affected access to justice because matters that had already been allocated hearing dates were postponed and matters that were filed for hearing could not be allocated dates until further notice. Criminal trials that were before the superior courts were suspended until further notice. This affected accused persons because their cases had to be adjourned and could not be disposed of on time. Criminal cases that were under the subordinate courts proceeded in accordance with the Ministry of Health’s COVID 19 guidelines. However, only matters that involved accused persons in custody could be attended to and those involving accused persons on bail were being adjourned until further notice. The other issue that affected the judiciary was the limited number of staff that could perform their work at any given time. For social distancing purposes, staff were required to work from home. Most typists were unable to process appeal cases from their homes due to lack of equipment such as laptops and this resulted in delays and an increase in case backlog.
The webinar presenters were Ms. Elsy C. Sainna, Head of Programmes and Research at the International Commission of Jurists (ICJ), Kenya; Mr. Kaleb Gamaya, the Chief Executive Officer of the Tanganyika Law Society; Ms. Mabela Lehloenya, the Project Manager of the International Federation of Women Lawyers (FIDA) Lesotho; and Ms. Twaambo Musonda, the Registrar of the Subordinate Courts in the Judiciary of Zambia. In their respective discussions, the presenters shared their experiences in seeking, facilitating and ensuring access to justice for their clients and citizens and reflected on the lessons learnt in the process.
Ms. Sainna addressed the broad access to justice lessons from Kenya, giving examples from her work with the International Commission of Jurists (ICJ) and other civil society partners in Kenya. She discussed the issues that ICJ Kenya identified during the pandemic and how the organization responded to some of the legal challenges the pandemic presented. She reflected on the African Commission on Human and Peoples’ Rights (ACHPR)‘s Statement on March 24, issued after COVID-19 was declared a global pandemic and its call for African Union member states to adopt a rights based approach in responding to the pandemic. She spoke about the negative impact COVID-19 lockdowns have had on access to justice throughout the country- in relation to the shortage of judicial officers in Kenya, and the limited budgetary allocations to the judiciary.
Mr. Gamaya, highlighted the various ways in which the Tanganyika Law Society adapted its operations during the pandemic to meet citizens’ access to justice needs. The Law Society limited its physical contact with people seeking legal aid services, and instead implemented the use of a deposit box for clients to submit their cases to the Law Society. Clients completed a form with their submitted cases and a Law Society staffer 1) collected the forms at the end of the day and 2) perused the documents and contacted the clients to provide remote legal advice. If cases were deemed urgent, they were taken to court, following an agreement with the judiciary to bring such cases to court. The collaboration with the judiciary ensured that the most vulnerable and those with urgent cases were still able to access justice during the pandemic.
Ms. Lehloenya, discussed how restrictive COVID-19 measures have negatively impacted rural women in Lesotho. She noted that there was an increase in gender-based violence cases during the lockdown period in the country. Although the government set up toll free hotlines for individuals to report gender based violence cases, many rural women did not do, so because they did not have access to cell phones and internet services. They were therefore unable to contact police, social and/or legal services for help. Rural women were also afraid to leave their homes to report to the police stations because they had witnessed soldiers physically assaulting people for not staying indoors in accordance with the lockdown protocols. They, therefore, feared meeting the same fate. In addition to the above, rural women were unable to travel to the city to access the courts, and other justice institutions because transport services were suspended during the lockdown.
Ms. Musonda, concluded the presentation. She informed the participants that in response to the pandemic, the Chief Justice of Zambia issued precautionary guidelines that resulted in the scaling down of court operations. Civil cases were only heard if they were considered urgent. This affected access to justice because matters that had already been allocated hearing dates were postponed and matters that were filed for hearing could not be allocated dates until further notice. Criminal trials that were before the superior courts were suspended until further notice. This affected accused persons because their cases had to be adjourned and could not be disposed of on time. Criminal cases that were under the subordinate courts proceeded in accordance with the Ministry of Health’s COVID 19 guidelines. However, only matters that involved accused persons in custody could be attended to and those involving accused persons on bail were being adjourned until further notice. The other issue that affected the judiciary was the limited number of staff that could perform their work at any given time. For social distancing purposes, staff were required to work from home. Most typists were unable to process appeal cases from their homes due to lack of equipment such as laptops and this resulted in delays and an increase in case backlog.
In their respective discussions, the presenters highlighted the fact that even prior to the pandemic the region was already experiencing access to justice challenges. These were further exacerbated by COVID 19. The judiciary and legal practitioners have had to adapt to the changing circumstances by using technology and shifting strategies on legal aid provision. Certain judicial systems have been innovative and adopted digital platforms for case filing and hearings. Other jurisdictions have incorporated methods of providing remote legal aid and fostering community engagement through a network of paralegals. This has bridged access to justice gaps during the pandemic. However, marginalized groups such as rural women who live in remote areas with little or no access to the internet or telephone services have not benefited from such mechanisms, and have struggled to access the justice system during the pandemic. It is therefore critical that such challenges are documented and brought to the attention of the relevant stakeholders in the justice systems of Southern Africa. In line with this objective, ABA ROLI, in consultation with partners that attended the webinar, will use the key findings and recommendations from the roundtable to develop a reference guide on “Strategies on access to justice in the context of Covid-19.” This reference guide will be shared with the legal profession and decision makers within the respective justice systems in Southern Africa.
Learn more about ABA ROLI's work in Africa.
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