PRELIMINARY

1. A PAPER ON “E-JUSTICE – ENHANCING ACCESS TO JUSTICE AND JUDICIAL ACCOUNTABILITY”BY JACOB MANZUNZULLB (Hons) UZ ELEPHANT HILLS HOTEL : VICTORIA FALLS : 15 JULY 2017

2. PRELIMINARY This paper takes a practical approach as I share with you my practical experiences on how e-justice can enhance access to justice and judicial accountability. This presentation will cover the following broad areas: A. Introduction B. Challenges associated with manual management of cases. C. Botswana Experience on the automated Court records Management system (CRMS). D. Aspects of judicial case management (JCM)system as a judicial reform E. Benefits of introducing e-justice F. Conclusion

3. A. INTRODUCTION Section 69 of the Constitution of Zimbabwe Amendment Act No. 20 of 2013 guarantees every person the right to a fair hearing and a right to access to justice and legal representation. Section 165 of the Constitution lays down the guiding principles of the judiciary giving effect to judicial accountability. How then does e-justice enhance access to justice and judicial accountability? Access to justice takes many forms, e.g. it may be physical accessibility in the form of availability of infrastructure, distance to the nearest service point, affordability of costs for court fees and legal representation, whether court rules are customer friendly, availability of basic court information

4. tothe users, etc. • A judicial office is a public office funded from the Consolidated revenue fund. • While it has to be respected by all means its not immune from criticism of course care must be taken not to step on its independence enshrined under section 164 of the Constitution or be contemptuous. • Holders of judicial office are accountable to the source of their authority which is derived from the people of Zimbabwe as per section 162 of the Constitution.

5. As a matter of fact : • Computerization per se offers no benefits or advantages to an organization or system unless the organization is well structured and properly managed. • Computerization cannot turn a badly managed organization into an efficient one. • They say in computer parlance , “garbage in garbage out.” • Computerization helps a well-managed organization to work more efficiently and more effectively. • Inappropriate use of computers can cause inefficiency , increase operation costs and cause serious disservice to the customers thereby defeating the fundamental that an organization exists to add value to its customers.

6. Computerization must be used as a tool to manage judicial reforms which bring about transformative results. • All stakeholders have a role to play, they must coordinate and pull together.

7. B. CHALLENGES ASSOCIATED WITH MANUAL MANAGEMENT OF CASES • Most legal systems experience common challenges in the manual management of cases. I will list some of them: • Delayed justice has been one of the social evils that have afflicted mankind since the time immemorial. • . Old adage that “justice delayed is justice denied” is still applicable to this date. • . Lord Bacon once said, “justice is sweetest when it is freshest.” • Continuous increase in the backlog of cases. • Misplaced, lost or missing files at the courts. • A culture of postponing the hearing of cases at the courts.

8. Cont.….. • The use of correspondent attorneys when one’s law firm is situate outside the town with a High court centre. • Increased costs on the part of your clients. • Inaccurate or absence of statistics • There is no ownership of cases by the judges unless its partly heard. • Difficult to tell whether parties are still interested in pursuing their case or not. • A lot of inactive cases are counted as part of the backlog.

9. Cont... • Although cases are allocated to individual Judges for trial the parties continue to dictate the pace of progress. • Having no turnaround time set for completion of cases in the courts • Inequitable distribution of work to the Judges

10. B. BOTSWANA’S EXPERIENCE IN THE E-JUSTICE • Botswana introduced an automated system of managing court records as far back as October 2005. • The system has several modules and is designed as a tool to drive the following judicial reforms, judicial case management, imaging/scanning, court annexed mediation, video conferencing, e-filing, real time court reporting, tele-conference, and interface with other systems of stakeholders. • The system is connected to all courts i.e. the High court centres and all magistrates' courts. • Not all reforms stated above have been implemented.

11. 1. CONCEPT AND PRINCIPLES OF JUDICIAL CASE MANAGEMENT Let me lay down in brief the concept and principles of judicial case management and how an automated system helps to drive its implementation. As I said before an automated system does not work in a vacuum, something structured must be put in place first before an automated system is introduced as an enhancer: a)Individual dockets • The major shift is that litigation is Judge-driven, as opposed to litigant/attorney driven : the Judge moves from a passive role to become an active case manager. • Every new case which is filed is assigned a Judge at filing/registration stage. • The case remains with the Judge until its conclusion.

12. The Judge assigned with the case is accountable for the pace and eventual resolution of the case. • There is equity in the distribution of cases to the Judges according to case type. • Where appropriate cases can be reassigned from one Judge to the other. • b) Early Court Intervention through pre-trial conferences • The basic concept behind JCM is for early judicial involvement in identifying the factual and legal issues in dispute between the parties and working with them and their attorneys to plan for and manage the conduct of future proceedings. • The purpose for doing this is to achieve the earliest and cost effective resolution to the dispute.

13. The Judge will issue a case management order which sets the schedule for litigation at the initial conference. • c) Continuing Control of Case Progress • The Judge holds the parties to the schedule • There will be consequences for failing to abide with the schedule • In complex cases there could be periodic status hearing conferences. • d)Maximizing settlement opportunities. • Settlement opportunities will be maximized because of the continuous involvement of the court and abuse of court process is most likely to be minimized. • The involvement of the court brings the parties much

14. closer to each other creating an environment for settlement opportunities. • e) Final pre-trial conferences. • This sets the parameters and creates a binding plan for the trial. • Parties prepare and file proposed final pre-trial order. • At the conference the court will • - review proposed final pre-trial order • - discuss trial etc. • The Court will issue a final pre-trial order which will be a guiding document for trial.

15. f) Firm and credible trial dates. • The Registrar does not set trial dates; these are set by the Judge in consultation with the parties at the final pre-trial conference. This is why the dates have to be firm and credible with no or little chances of postponement. • Creation of the expectation that trial or any event for that matter will occur as scheduled is critically important. This will make parties to prepare for the trial and avoid unnecessary postponements. • g) Trial management • The final pretrial order governs the trial in order to avoid trial interruptions. • Parties will be held to allotted times as agreed.

16. h) Enforcement Tools • The Rules of Court have to be amended in order to usher in a new legal culture. • Penalties for non-compliance with scheduling orders of the court will be introduced in the Rules

17. 2. CRMS AUTOMATED SYSTEM Botswana introduced an automated system for managing records which is capable of; • driving the implementation of Judicial Case Management. b) it helps in the - storage and retrieval of information c) random and equitable allocation of cases to judges at registration stage d) running of key statistical reports e) tracking of cases f) imaging of records g) case status reports etc. h) Docketing of court process The system covers : - active case file management events - semi-active file management events - inactive case file management events

18. 3. e-filing, tele-conferencing, video conference, real time court reporting • All these technologies will reduce the cost and time one spends in filing and appearing at court. • Payment of court fees will be done on line • Botswana is at pilot stage of video conferencing (pilot stage – technology Court) • Tele -conference operates well in motion proceedings • real time court reporting for stenographers in the production of court proceedings.(pilot stage)facilitates quick production of court proceedings.

19. E. BENEFITS OF E-JUSTICE • Computerization generate a very wide range of potential benefits some of which are: • Disposal of many dead cases • The Judge and parties become key players at every stage in the life of a case • Automatic generation of notices of hearing

20. Significant reduction of backlog of cases to a level of having no backlog. • The court controls the pace of litigation rather than the parties. • There is equitable distribution of work to all the Judges rather than overworking hardworking Judges. • The performance of each Judge or station can be measured using the clearance rate formula. • Accurate statistics can be run any time with different variables.

21. Statistical reports become a key performance tool • Statistics will also inform policy formulation. • No case will lie dormant for years without it being immediately realized the moment it enters the backlog bracket. • With the support of an automated system all cases can be accessed electronically by authorized officials for any court without calling for the file. • All case types will have turnaround times against which the court’s performance can be measured. Turnaround times will be scientifically set through a re-engineering process.

22. Public confidence in the justice system will be built. • All cases will be owned by one Judge or the other. No case sits in the registry without ownership. • Abuse of court process by some litigants will be eliminated. • Cases will be disposed within the agreed turnaround time. • Significant settlements will be recorded. • Reduced waiting time for completion of cases.

23. Originating process is registered electronically. • Automatic generation of case number. • Automatic selection of a Judge ‘s name • File covers opened and name of selected Judge • stamped on file cover and pleadings. • Scanning of all court processes. • All judgments are deposited in a Judgment bank • motion court can be run through tele-conferencing • Court rolls are automatically generated • Generate various statistical reports e.g on timeliness on standards which must be configured

24. Track cases according to their status e.g. their location, • Multiple use of records by users • Use of electronic public kiosk and public notice screen. • Subsequent pleadings to bear the name of the Judge • Docket pleadings electronically • No incidents of missing files • Accessibility of information about their cases by attorneys • Inquiry of case status of any case at any court centre • Accessibility of basic court information, location and forms from the judiciary’s website • Monitor files in terms of Rules – pop ups of events

25. Increased transparency and accountability leading to increase in public confidence • monthly caseload statistics will be an incentive for Judges to effectively manage their caseloads • Meaningful statistics can be generated • An end to unjustified postponements etc. • No case will sit dormant

26. construction of statistical profile of caseloads e.g those that answer the following questions . • How many cases are in the active caseload and what is their age profile? • What are the court’s standards for timeliness of case disposal and how many active cases meet those standards? • What is the age profile of disposed cases each year? • What is rate of case adjournments for cases disposed each year? • What is the civil case settlement rate? etc.

27. E. CONCLUSION Thomas Friedman, in the Lexus and the Olive tree, put it this way ” If you don’t have your fingers on your customers’ pulse all the time, your customer will go somewhere else with the click of a mouse, … and even if you have your finger on the pulse, if you don’t make decisions quickly enough, you can be wiped out” An organization exists to add value to its customers. Computerization must be used to enhance access to justice and judicial accountability for the ultimate benefit of our customers. All stakeholders must join hands and work together if we are to achieve an everlasting success.

28. I thank you for giving me this opportunity and I thank you for your time.