Can e-courts eliminate corruption?

HARARE - A rather depressing but very important case that must rudely awaken slumbering authorities to the need for judicial reformation is currently playing out at the Harare Magistrates’ Courts.

A woman struggling to fend for her family finds herself crossing sword in the courts with a deregistered lawyer who purported to represent her against the attachment of her house by a creditor.

Tichaona Mawere — notorious for abusing trust funds — is not qualified to practice legally in the country after he was deregistered and blacklisted by the Law Society of Zimbabwe (LSZ).

The society fights to preserve the integrity of the legal profession in the country by, among other things, ensuring a corruption-free justice delivery system from the legal end.

It is alleged that the woman approached a Harare law firm some time ago seeking representation in the matter but Mawere, who was eavesdropping on the conversation later approached her promising to help her.

He misrepresented that he was a practising lawyer and was in a position to represent her provided that she paid $26 000 as legal fees.

The court heard that Mawere never represented the woman and never attended any court session.

He always left the complainant outside the court premises and would later advise her to go home. This means the woman, whose identity is being protected by the courts, lost both the house and the money she paid in legal fees which Mawere allegedly fraudulently pocketed.

Mawere allegedly never filled any court papers to defend her “client”.

Such cases of judicial corruption are sadly on the increase because of deficiencies in the justice delivery system, some of which can be addressed through an electronic court system (e-court).

E-courts are about providing Information and Communication Technology (ICT) to enable courts to make justice delivery affordable and cost-effective.

In an e-court, the entire work is executed digitally, wherein, the information shared and generated is stored as a database and synced to particular software which can be accessed by litigants, judges and advocates.

The primary intention of e-courts is to make the justice delivery system affordable, transparent, speedily and accountable by limiting the paper filings.

Its key advantages include bringing in a justice serving mechanism that is transparent, efficient, affordable, time saving, protects the interests of witnesses, reduces the backlog of pending cases and most importantly reduces the number of unscrupulous activities.

Speaking at the official opening of the 2018 legal year on January 15, Chief Justice Luke Malaba said he was expediting the transformation of the court system whereby cases would be filed and managed electronically, which is a radical departure from the current system where cases are managed manually.

“The system will assist us to manage, monitor and track all cases filed in our courts. The system will bring in efficiency in our courts, assist in reducing backlogs and, critically, it will help to eliminate corruption,” he said.

Judicial corruption comes in many forms than just the existence of bogus lawyers. In many cases, court documents vanish when the rich and the powerful are implicated and justice suffers.

In a system where money is speaking louder than the statutes, the road to justice has often been paved with bribes.

Malaba also said he has since commissioned a research on the most suitable integrated electronic case management system for the courts.

The system would help reduce human interaction and do away with physical documents when filing cases.

In suitable cases, he said, witnesses would not have to appear in court to give evidence as virtual hearings would be conducted.

In the past, there have been widespread cases of court documents disappearing after having been filed, leading to cases dying.

The system will accord everyone from judges to lawyers to plaintiffs opportunity to track cases’ progress through an integrated national e-justice system that streamlines processes, eases administration and, most importantly, supports citizen access to a transparent robust back end system.

This means that bogus lawyers, like in the case cited earlier in this article, would not have the chance to prey on unsuspecting litigants.

The legal profession has welcomed the initiative, saying it will go a long way in combating judicial corruption.

LSZ president Misheck Hogwe, said: “We are very confident that this system is finally going to be introduced. There is no better way of fighting the menace of corruption in our justice delivery system than that. As LSZ, we welcome this initiative because it will allow us to track delinquent and bogus lawyers. They are naturally eliminated by this system. We cannot talk about corruption at the courts without also talking about corruption in the profession.”

In Zimbabwe, lawyers are governed by the Legal Practitioners’ Act, a statute that creates the LSZ, a body which regulates the operations of legal practitioners to protect members of the public who could suffer loss of income when they fall prey to unscrupulous lawyers.

The LSZ issues practising certificates that are renewed annually and carries periodic and impromptu spot checks and audits on law firms to ensure that they adhere to regulations.

As part of the regulations, lawyers are required to keep all clients’ money in trust accounts and contribute annually to the compensation fund in which resources are pooled collectively in case of unforeseen incidents.

National Prosecuting Authority boss Ray Goba said vices in the justice delivery system could be a thing of the past once e-courts become a reality.

“Certainly, it enables information to be made available to all sectors of the justice delivery system, so to that extent, that system is very welcome,” he said.

But others think a lot more will still need to be done if judicial corruption is to be eliminated and the public’s faith in the country’s justice delivery system is brought back.

“Technology is merely an instrument and should not be considered as a one-stop solution to eradicate corruption in the justice delivery system. The best way to reduce corruption is to reduce human interference. We should move a step further and get e-options for payments, because once this is in place, chances of corruption go down,” said top Harare lawyer Alec Muchadehama.

While ICTs proffer solutions to some of the problems, they also bring in their own challenges. ICT expert Moses Hamudikuwanda believes that technology needs to be treated with great caution as it could also bring fresh challenges and might fail to end corruption in the judiciary.

“It’s very easy to fall prey to this ‘techno mania’ if you think technology is going to solve all your corruption problems. Technology is an instrument. Institutions are far more important. Reducing corruption in the judiciary will therefore need to be implemented by national courts and national enforcement organisations, thus placing great reliance upon the integrity and competence of those institutions than the mere instruments they would be managing,” he said.

He added: “Judicial corruption is an especially pernicious phenomenon. When the judiciary — which is expected to serve as the guardian of the rule of law — is itself corrupt, anti-corruption strategies are often deprived of essential measures that are needed to increase the risks and reduce the benefits of corruption and to punish corrupt acts.

“The resulting distortions, including the impunity of corrupt individuals, undermine the rule of law, foster public cynicism about the integrity of government, and thus impair essential capacities for sound economic, social and political development.”

Experts say efforts to combat varied forms of judicial corruption must include varied responses, and not just e-courts.

“While some measures can be taken on an institution wide basis, such as codes of ethics, many interventions must be implemented at the operational level to be effective,” said another lawyer Dumisani Mthombeni.

Constitutional law expert Greg Linington also weighed in saying: “Given its overarching importance to the operation of a justice system, judicial corruption should be among the issues considered in any country assessment of the rule of law.

“Where corruption is believed to be a significant impediment to the fair and efficient administration of justice, this issue merits special attention and while e-courts can go a long way to eliminate judicial corruption, many other measures will need to be institutionalised to effectively deal with this menace.”

In principle, what appears to emerge from this convergence though is the fact that programming to reduce corruption is most likely to focus on institutional issues such as the appointment and tenure of judicial branch personnel, case management and court procedures, ethics and institutional integrity, financing the judiciary, investigation and punishment of corrupt acts, and transparency and public participation, taking into account both standards and their application as well as the incentives and disincentives for implementation.

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