COVID-19 Impact: Lesotho’s Court of Appeal Progress on Digital Proceedings and Possibility of Virtual Hearings beyond COVID-19

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1.   Introduction

In the shade of the apparently gruesome reign of contagious COVID-19, the Court of Appeal of Lesotho was set either to find means to hear cases enrolled for the April session or to postpone the proceedings. In keeping with public health precautions recommended in response to COVID-19, the Court of Appeal postponed all oral arguments that were scheduled. By the time the session had to convene, COVID-19 had asserted its authority through tragic personal cost and debilitating socio-economic burdens and had the globe under lockdown like it was the Alcatraz.  It was crystal clear that even court proceedings did not enjoy any immunity and were not spared by the disruptive impact of COVID-19 scourge.

With its disruptive revolutionary by-products, COVID-19 broke the longstanding tradition of intimate dynamic interaction between the bench and counsel. Over the years, the courts of law have been dubbed to resist change but the revolutionary COVID-19’s advent forced judiciaries to consider the use of technological tools to enable proceedings with no physical presence at the designated residence or geographic location of the courts. In order to keep up with public health guidance and recommended health precautionary measures in response to COVID-19, use of virtual platforms were the most viable and pragmatically progressive solutions.

The use of technological tools were intended to reduce human contact and to ensure adherence to social distancing and isolation guidelines as a means not to compromise the health of those involved. The measures were essential in that they ensured that inasmuch as everyone had to abide by public health requirements, justice had to be served. Instead of squaring off the right to fair trials (including recourse to appeal) and the right to life, the technological measures adopted maintained consistency and congruency between public health requirements and access to justice as a human right encompassed under the right to a fair trial. At the same time it proved that the Court of Appeal is also bent on adhering to the laws promulgated to protecting lives and welfare of the judges, lawyers, the Registrar and the staff at the Court of Appeal and the whole population it serves.

This essay is an appreciation to the Court of Appeal for contingently utilising digital platforms in order to abide by COVID-19 regulations and health requirements as an institution which also has to abide by the law while at the same time carrying out its constitutional mandate. This essay is just an overview of the adoption of new technological video conferencing by the Court of Appeal of Lesotho in the midst of COVID-19 pandemic.

The essay summarily discusses the responses by various court systems around the globe in conducting proceedings during the persistence of COVID-19. This essay finally advances a plea inter alia for amendment of the Court of Appeal Rules, 2006 or adoption of Protocols Regarding Remote Hearings and for livestreaming and broadcasting of the remote hearings on social media platforms.

2.   Adoption of Video Conferencing

The Court of Appeal April session had to be postponed due to the prevalent threat of COVID-19. The Court of Appeal, through the office of the Registrar resolved to go for remote hearings through electronic tools. The team then decided to have the 24 cases which were enrolled for hearing in the April 2020 session remotely heard via video conferencing. On the 12th day of May 2020, the Court of Appeal successfully convened and judgements were delivered on the 29th day of May 2020.

The arrangement to remotely hear cases was pragmatically convenient due to the physical constraints given that the borders were closed and the Justices of Appeal are all based outside the country except for His Lordship, the President of the Court of Appeal. The adoption of the video conferencing technology from different physical locations proved practically viable in the interest of the dispensation of justice. The technology allowed for improvisation where the Court could not convene with the judges at the same physical location.

Essentially, COVID-19 did not suspend individual rights to justice but merely reduced the need for human contact. The task of the Court of Appeal team was to find ways to circumvent the impossibility and improbability of having the Justices of Appeal at the same physical geographic location. The team devised modalities and ways to implement video conferencing systems. This move took into consideration the fact that the Justices of Appeal except the President are based in foreign jurisdictions and neither could they travel into Lesotho due to the closed borders nor fly in due to highly restricted air travels. The restrictions were based on lockdown regulations imposed in all the states the justices reside in.

The Registrar and his team were able to hit so many birds with a single stone. There was an over-arching need to clear the log for the first session of the Court of Appeal and ensuring that justice is served at the same time adhering to the imperative need to ensure isolation, social distancing and securing the presence of the judges when they could not be in a single geographic location. The virtual methodology proved effective in the management of the proceeding of appeal cases during the prevalence of COVID-19 pandemic.

In essence, by taking this move, the Court took judicial notice of the dawn of the 4th Industrial Revolution and how technological developments can be used constructively in the legal sphere to dispense justice in a fair and effective manner. In the April 2020 session, the Court and the litigants through their legal representatives coordinated efforts in ensuring the success of the proceedings towards a common objective which is ultimately justice and finality to legal disputes. Indeed, justice had to be done even if COVID-19 threatened to crush the earth and the heavens.

As a creature of the Constitution, which is the Supreme Law of the Land and a social contract between the State and the citizens, the Court of Appeal was expected to deliver on its constitutional mandate as optimally as it possibly could despite the health scare. The health and economic crisis did not suspend the constitution so it was only pragmatic that constitutional offices would still give full effect to the constitution while maintaining consistent compliance with all the health requirements as required by other laws.

3.   Way Forward – post COVID-19 and beyond

Hopefully, in the near future, post COVID-19 and beyond, the Court of Appeal and the High Court will consider and permit remote hearings in appropriate circumstances. With this mechanism in place, rapid up-scaling of the technological infrastructure to support remote virtual hearings will be a necessity and will assist in modernising the court processes. This move would promote access to our supreme courts which would go a long way in enhancing civic education of Basotho. YouTube live broadcasting of the proceedings in the Prorogation case – ABC & 6 Ors and Prime Minister & 4 Ors Constitutional Case No. 0006/2020 -bears witness to a heart-warming reception the live streaming of court proceedings received.

The livestreaming and broadcasting of the High Court sitting as the Constitutional Court proceedings in the prorogation case on social media platform YouTube, which was a contingent plan, received welcoming receptions. There was no poll conducted in order to substantiate the above claim but one can assert that due to the public interest in issues which were of public importance, it would be a viable idea for the courts to adopt such a progressive policy in most cases of such a magnitude.

The High Court sitting as the Constitutional embraced the idea of live broadcasting and the Court of Appeal took another step by utilising the video conferencing platform. These moves proved the necessity of leveraging technology in order to maintain and advance public access to the courts. The combination of the two, live broadcasting of remote hearings would make the proceedings open enough as required under the law. Better still, these livestreaming and broadcasting platforms dissect and transcend boundaries.

It is trite that publicity is the very soul of the justice system and that open courts are a hallmark of a democratic society. The Court of Appeal has overemphasised this stance numerous times in its decisions. For example, Kansas Supreme Court livestreamed oral arguments conducted via Zoom through YouTube and a large number of people who could not have fitted in a court room accessed the proceedings. Videoconference platforms like Zoom, Skype, GoToMeeting, WebEx or LoopUp and many other remote platforms were used to accomplish this task while the public was also allowed to watch or listen live. Facebook Live could be added as another livestreaming platform which could be effectively utilised to ensure the openness of the remote court proceedings to the public.

This essay notes that sometimes there can be conflicting interest on sensitive issues involving personal privacy which may be brought into play in other case. It would be in the discretion of the courts to direct as to the route to take. The essay further notes that there could be jurisdictional questions which may be remedied by adoption of rules allowing a judge sitting remotely in a foreign jurisdiction to reside over a matter in Lesotho. However, such questions do not form part of the substance of this essay.

4.   Other Jurisdictions

In the United Kingdom, the Supreme Court on the 24th March 2020 conducted its first ever remote hearing.  The case involved life and death decision on a mentally and physically debilitated man who suffered a stroke in 2016. The case was before Justice Mostyn who decided that the case would proceed remotely via Skype. The Supreme Court and the courts had shut down due to the COVID-19 pandemic. In response to this crisis, Protocols Regarding Remote Hearings were issued to provide guidance on inter alia, forms of remote technology offered and use of electronic documentation. All cases before the Supreme Court were to be heard via teleconferencing and video conferencing remote technology tools which may include Zoom, Skype and BT conference call.

China had adopted a more progressive and some extraordinary measures at the height of the COVID-19 outbreak. The Supreme People’s Court had ordered all courts to use online platforms entirely in settlement of disputes. The Court was also promoted mobile micro court on WeChat. Extraordinarily, China is reported to have 3 internet courts dealing with online litigation from the initial stage when a case is launched to the last stage of delivering and handing out of the judgement.

In the US, COVID-19 wreaked havoc and forced the Supreme Court justices to consider, for the first time, the use of the live audio of the court’s oral arguments. On the Monday, 13th April 2020, the Court announced that it will hold oral arguments through remote teleconferencing platforms in May for the first time in its history on a set of cases that were postponed in March and April.

 The most prominent case which was also enrolled to be heard remotely was the one on the potential disclosure of President Donald Trump financial records. In a press release on Friday, the 29th May 2020, members of the Senate Judiciary Committee Messrs Patrick Leahy and Chuck Grassley urged the Supreme Court to continue providing live audio of its arguments even after the COVID-19 pandemic had passed. Further, they requested that the Supreme Court consider providing a live video.

In the United Arab Emirates, the Dubai Courts confirmed that on the 19th day of April 2020 the hearings would occur electronically through the use Microsoft Teams and this would assist parties to participate in virtual video conferencing. All new lawsuits were to be filed electronically. The Dubai International Financial Centre Court (DIFC) registry closed on the 26th April 2020 and all work had to be done remotely. Before the Dubai Courts, the DIFC had resolved on the 17 March 2020 that all hearing would be held via video conferencing with the audience allowed when considered necessary by the Court.

In India, Supreme Court e-Committee convened a meeting in March 2020 to discuss modalities around the Supreme Court holding digital proceedings. Justice DY Chandrachud, chairperson of the e-Committee is reported to have updated the Committee that during the lockdown due to COVID-19 pandemic, the entire filing system of cases was to go paperless by way of e-filing. Further, he stated that proceedings of the Supreme Court will be going digital. Additionally, for purposes of open access to court virtual hearings and presumption of open courts, the chairperson stated that “once video conferencing is introduced, smart televisions will be installed in the press lounge for convenience of journalists.”

In Canada, the Court of Appeal devised and amended the Court’s Pandemic Answer Plan in order to respond to COVID-19. The Court further introduced the Emergency Practice Directions in which inter alia, prescribed that disputes before a single judge were to be heard in a teleconference and all appeals and demands were to be electronically heard either through video conferencing or by telephone before a trialogue. The Netherlands adopted a similar approach after shutting down the courts from 17th March 2019 to 6th April 2020 with the exception of urgent cases – where the delay of the decision would adversely affect the rights of the either of the litigants.

Unlike other jurisdictions, French courts were shut down on the 16th March 2020 except for what they termed essential disputes which included pre-trial and judicial review proceedings. Their neighbour, Germany did not shutdown the courts at all but in-person hearing were delayed for up to six months. There were no pronouncements on virtual proceedings which is a rare occurrence in its jurisdiction.

International Arbitration Institutions also made initiatives to continue hearing albeit remotely through webinars and videoconferencing platforms. Australian Centre for International Commercial Arbitration devised modalities and issued its Continuity Plan for ACICA whose objective was to facilitate webinars, electronic video and audio platforms. Additionally, ACICA adopted a draft order to use Electronic Dispute Settlement Technology offering for arbitral proceeding through video conferencing. The London Court of International Arbitration already has authority to hold remote hearings as according to Article 19 of the Guidance Note to Arbitrariness. Dubai International Arbitration Centre (DIAC) remained operational and new cases were registered through their online portal and payments made online. Parties were further urged to utilise alternative electronic media.

5.   Conclusion

This essay is of the view that there is necessity in leveraging technology in order to maintain, revolutionise and modernise data management, filing requirements and hearing proceedings in the courts. This essay sincerely applauds the Court of Appeal of Appeal President, His Lordship Dr Kananelo E. Mosito and the Court of Appeal Justices; and the Office of the Registrar- under the tutelage of Advocate Realeboha Makamane and his team for adoption of technological measures which maintained consistency and congruency between public health requirements and access to justice as a human right and ensuring that the Court of Appeal delivers its constitutional mandate in the face of COVID-19 menace.

By adding the livestreaming option to the virtual hearings, the Court of Appeal and the High Court will have a unique opportunity to open up their proceedings beyond a select few who may be physically able to attend oral arguments. It is a firm belief of this essay that Basotho will grow in appreciation and confidence in the judicial branch of the government and this will enhance the civic education of the public. Livestreaming is even more open than the physical attendance of hearings as it can accommodate more people. Effectively, the transparency would transcend our borders as geographic disparities have been rendered obsolete on these virtual platforms.

Livestreaming of the proceedings of the Court of Appeal, either through YouTube or Facebook or any other desired virtual platform would ensure openness and publicity of the courts which are lifeblood to a democratic society. For example, the Kansas Supreme Court livestreamed oral arguments conducted via Zoom through YouTube and a large number of people who could not have fitted in a court room accessed the proceedings. Otherwise, livestreaming and broadcasting of oral arguments would demonstrate technical capacity of the judiciary to provide prompt disclosure, openness and transparency to Basotho whom the judiciary ultimately serves.

As cliché as it sounds, indeed, leadership is forged in times of crisis and the use of virtual platforms to dispense justice during a crisis which required as little human interaction as ever and threatened paralysing everything in its path is an erudite sign of progressive leadership thinking. In the global scheme, Lesotho accomplished a feat some developed states did not consider due to the earnest efforts of the leading characters and their team mentioned in the preceding paragraph. The Acting Chief Justice and Justices of the High Court were also very progressive by allowing YouTube broadcasting of the proceedings in the Prorogation case – ABC & 6 Ors and Prime Minister & 4 Ors Constitutional Case No. 0006/2020 . All these efforts by the Court of Appeal and the High Court hold greater promises leading into the 4th industrial revolution.

6.   Recommendations

This essay recommends utilisation of YouTube and/ or Facebook or any other desired virtual platform additional to the virtual video conferencing, audio conferencing and webinar initiatives in order to ensure openness of the court to the public. These moves would leverage technology in order to maintain and advance public access to the courts. The combination of video conferencing, livestreaming and broadcasting of remotes hearing would make the proceedings open enough as required under the law.

This essay recommends adoption of protocols giving guidance on the practical aspects of remote hearings. This may include the amendment of the Court of Appeal Rules to include and to adopt Emergency Practice Directions or Protocols Regarding Remote Hearings to provide guidance on inter alia forms of remote technology offered and use of electronic documentation. Adoption and incorporation of Online Hearing Procedures and Principles into the Rules of the Court of Appeal is recommended.

The Court may also wish to adopt live audio recording of the oral arguments which would empower the ever growing interest of Basotho to become informed participants in our judicial system. It is trite that in a democratic dispensation, openness and transparency are the rule, not the exception. In this regard, the judiciary needs to be technically capacitated by sufficient funding to be able to provide prompt disclosure, openness and transparency through livestreaming and broadcasting platforms to Basotho whom the judiciary ultimately serves.

Finally, this essay recommends robust and rigorous inclusive discussions and analysis to embrace the easiness or complexity of the issues around adoption of virtual platforms and utilisation of virtual spaces for hearings. This essay presumes that development or rather contextualisation of Protocols Regarding Remote Hearings or amendment of the Rules of Court to accommodate virtual hearings may need a high sense of purpose, efficiency, timeliness and application of best practices on the process and its outcomes.

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