By Keniz Agira (Chairman-Kenya Cyber Security and Forensics Association)
The Covid 19 has done the unthinkable again. It is official, it is legal that you will be served court orders using mobile phone enabled messaging applications. These include Facebook, Twitter, whatsapp, Telegram or any other mobile phone enabled messaging applications. These new directions were gazetted on 17th April 2020 by the Chief Justice David Maraga. The order is valid for 30 days, with the potential of an extension if the current Corona situation persists.[i]
With most courts closed. Kenya Cyber Security Association lauds this effort. This rhymes to the legal maxim, “Justice delayed is justice denied.” This order inter alia reported,
“Service of documents and Court process during this period, parties are directed, whenever possible and unless otherwise directed by the court, to serve court documents and processes throughout electronic mail service and mobile enabled messaging applications as provided for under Order 5 Rules 22B and 22C of the Civil Procedure Rules.”[ii]
It is further reported, inter alia that Court documents will bear names and contacts of either a lawyer or a litigant. One will be required to present the court papers before a registry where a clerk will stamp each pages and then the litigant scan all the stamped pages and send them to the courts email and to the other parties through email. With the mobile phone as a court process hub, blue tick will be proof that one saw the orders.[iii]
However, could there be some challenges in actualization of this bold initiative? What could be the possible solutions to the challenges. Kenya Cyber Security and Forensics Association posits the following challenges and proffer a number of solutions to help smoothen the bold delivery of the order.
Some of the challenges are as follows. First, how will the judiciary conduct Behavior Change Management? You see, legal profession is conservative in nature and over the years, most legal minds have embraced technology circumspectively. It will take a lot of courage for courts to accept an argument by lawyers that he submitted his submissions using signal, whatsapp or any other application.
Secondly, how is the judiciary planning to secure these electronic mail service and mobile enabled messaging applications which they do not own and have no control over?
Thirdly, how is judiciary going to manage the various applications such as App lockers and others that have the potential of hiding the fact that the message was delivered?
As we think along the aforementioned and not mentioned challenges. Kenya Cyber Security and Forensics Association proposes the following solutions for the concerned so that justice is not delayed:
- Let there be a robust cyber security awareness on both the strengths and weakness of the proposed platforms. This can be achieved by the judiciary embracing various cyber security and cyber forensics stakeholders in constructive dialogue, in order to think through the successes of the initiative.
- May the Judiciary have in place, versatile End Point Detection mechanisms in its devices. This will serve to wade off unnecessary intrusions.
- May the Judiciary stress on using updated operating systems and applications to keep macros and leakages of the judgments at bay.
- May the judiciary put in place a mechanism of destroying data remotely in case it lands in the wrong hands.
Indeed, “Equity aids the vigilant and not the
indolent.” We support this bold
initiative from the Judiciary.