Throughout history, technology has proven to be a “gamechanger”. There have been  times and inventions in our history that have fundamentally changed the way humans live – across countries, continents, and the world.

For example, in Sub-Saharan Africa (SSA), a relatively recent technological innovation - mobile money - has seen rapid growth. Mobile money deployments have increased by 39% annually over the last decade, with double-digit growth for both transaction value and transaction volume. This has resulted in the financial inclusion of millions of people in Africa without building thousands of new bank branches. 

Technology has impacted issues like financial inclusion, but can technology be leveraged to improve access to justice?

THE IMPORTANCE OF ACCESS TO JUSTICE

The United Nations Sustainable Development Goals or Global Goals are a collection of 17 interlinked goals designed to be a "blueprint to achieve a better and more sustainable future for all". Goal 16 focuses on peace, justice and strong institutions. This goal is meant to be achieved by promoting peaceful and inclusive societies for sustainable development, ensuring access to justice for all, and building effective, accountable and inclusive institutions at all levels.

Statistics show high levels of conflict globally (every day, 100 civilians are killed in armed conflicts) in spite of an array of legal and regulatory international law frameworks designed to offer protection. With the advent of Covid-19, many existing human rights issues have been exacerbated – for example, the overcrowding in prisons in over 60% of countries is increasing the risk of spreading Covid-19. 

Meanwhile, there is often little access to or confidence in courts. For instance, in African countries,  only a slim majority across 36 countries express confidence in the courts and a third of respondents believe that most, if not all, judges and magistrates engage in corruption. Further, issues of gender, literacy and financial means hinder the access to justice of those members of society who need it the most. Across the continent, men and more educated citizens are more likely to engage with the courts than women and uneducated citizens.

It is clear that access to justice is a global issue, and that the lack of it persists in spite of many efforts to improve access to justice through legal and regulatory frameworks. As in the finance sector, perhaps we need to start looking at things differently to address the challenges of access to justice, including the use of technology as a potential solution. 

WHAT DOES “ACCESS TO JUSTICE” REALLY MEAN? 

Access to justice has been defined as the ability of all people to seek and obtain the resolution of justice problems affecting them. It focuses on the outcome as much as the process. While it is indeed important to have sufficient courts that have wheelchair and/ or other access, this is just the beginning of the journey. The attainment of a remedy is even more important. There is the need for rules and procedures that are easy to understand and adhere to. Alternative dispute resolution is an example of how access to justice can be enhanced considering how costly, lengthy and complicated formal legal systems can be.   

THE USE OF TECHNOLOGY IN JUDICIAL SYSTEMS 

The use of technology in judicial systems around the world has existed for many years, albeit to varying degrees. Singaporean courts, for example, permit legal practitioners to make applications by way of video link. In the judicial system in Western Australia, it has been compulsory to electronically file court process in the civil jurisdiction of the Supreme Court since 1 March 2018.

The impact of Covid-19 has been a catalyst for the further use of technology in judicial systems. On 24 March 2020 the Supreme Court of the United Kingdom conducted its first ever remote hearing. The Dubai Courts confirmed that from 19 April 2020, all hearings would be conducted on Microsoft Teams. South Africa also took many measures - partially in response to the pandemic - which resulted in technological adjustments to the judicial system such a video conferencing by South African courts. 

There are other uses of technology that have pushed the boundaries further. One such example is Do Not Pay which claims to be the world’s first robot lawyer. In five years, the programme has developed over one hundred bots that assist users in addressing an array of legal problems including compensation for delayed flights, drafting and filing claims in small claims courts - including scripts for hearings, and disputing parking tickets (from which the app derives its name).

There are also various online dispute resolution (ODR) mechanisms in place that leverage and combine concepts of alternative dispute resolution (ADR) such as mediation and arbitration with technology. The benefits of this combination are that dispute resolution can do away with the potentially complicated, technical rules and procedures of some judicial systems while being conducted remotely as well.

There are other innovations related to access to justice that focus on prevention and education. An example of this is rAInbow - a programme where a friendly AI-powered bot chats to users about relationships that don’t feel right. The programme acknowledges that it can be difficult to identify when or why a relationship becomes abusive, and that is may not always be easy talking to friends or family. The programme’s bot named Bo, helps to spot the signs of abuse, assess what is healthy and unhealthy behaviour, and access resources for help.

PERSISTING OBSTACLES TO JUSTICE

Despite these advances in introducing and furthering the use of technology in judicial systems, the use of technology in the judicial system does not necessarily or automatically translate into access to justice. 

There is little evidence of the use of technology in the judicial systems of developing countries. Even when technological innovations are operating outside of traditional judicial systems and offering viable alternatives, when thinking globally and considering that certain targets such SDG 16 look to achieve access to justice for all, then one inevitably has to consider access to technology itself. Sustainable Development Goal 9: Industry, Innovation and Infrastructure comes to mind because one of the targets is affordable access to the internet.

From the African perspective, the challenge is two-fold. In the first place there is the need for infrastructure and while there are bottlenecks, supply is growing. The second challenge is the cost of access to the internet – Africa has the most expensive internet charges in the world.

This means that having access to justice technological innovations can only be viable for most people in a world where technology itself is accessible as well. One proposed interim solution to this dilemma has been, at the very least, to provide access to technology to a few individuals in a community (such as paralegals) so that they are empowered to be more effective in assisting the other members of said community.

Further, even where there is technology in the judicial system, many barriers may still exist such as the need to have competent legal representation (which usually comes at a significant cost), coupled with complicated and technical rules and procedures.

TECHNOLOGY IS NOT THE WHOLE ANSWER

It appears the answer to the question, “is technology the answer to a lack of access to justice?” is not so straightforward. While there is great potential, there are also many variables to consider. This includes how and what technology is being used for, and how many potential users in need can actually access the technological tools in their pursuit of justice.  

What is clear is that currently, technology, in itself will not help us achieve access to justice for all in the near future. There will need to be a blend of innovative procedural solutions such as alternative dispute resolution mechanisms and leveraging of community structures in addition to technological solutions, even as the latter become more accessible. 

Many judicial systems are suitable for certain types of disputes but with millions of people unable to access them, a blended approach, which considers those that are failing to access justice at present, will be far more effective in achieving equal access to justice.

Themba is a commercial law attorney with a passion for access to justice. He is the founder of Mahleka Legal Consultants and the Justice Accelerator Head, Southern Africa, of The Hague Institute for Innovation of Law.

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