Source: Can e-courts eliminate corruption? – DailyNews Live
Andrew Kunambura 22 January 2018
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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