Given Zimbabwe’s existing digital divide, where technology is inaccessible to the majority of the population, concerns have been raised about the inclusion of virtual courts in the Judiciary Laws Amendment Bill.
Concerns include whether people will be able to access the internet and participate in court proceedings.
This issue was raised during the Senate’s second reading of the Judicial Laws Amendment Bill last week, which also seeks to amend a number of judicial laws, including the Constitutional Court Act, Supreme Court Act, High Court Act, Labour Court Act, Administrative Court Act, Magistrates Court Act, and Criminal Procedure and Evidence Act.
Minister of Justice, Legal and Parliamentary Affairs, Ziyambi Ziyambi said the introduction of Covid-19 posed a challenge to the conduct of trials in courts, but also provided an opportunity to synchronize trial conduct with the new Integrated Electronic Case Management System.
“The Bill before the House seeks to provide for virtual court sittings in both civil and criminal proceedings provided the parties consent to have proceedings conducted virtually and also if consent is not withheld, without reason, the presiding officers can make a ruling,” Ziyambi said.
“So the law will actually allow for a scenario which is just to prevail as to whether the proceedings should proceed by way of virtual or by physical hearings.”
According to Ziyambi, these virtual courts will expedite access to justice and provide access to justice litigants who are outside the jurisdiction of a physical court or who are unable to physically access court.
He dismissed concerns that virtual courts might not provide accused persons and civil litigants the right to a public trial, noting that virtual courts could accommodate public access to trial more than physical courts.
“A few members of the public may be accommodated in a court gallery as opposed to a trial by zoom which can accommodate even up to 500 people,” Ziyambi said.
The Bill also seeks to insert a new section to the Criminal Procedure and Evidence Act, where it will provide for virtual court sittings in bail and remand other than initial remand proceedings.
“This is, however, subject to the availability of facilities and also provided that the prosecutor and the accused have the right by means of the virtual procedure, to question a witness and to observe the reaction of that witness,” said the minister, who urged the senators to to pass the bill and use modern technology to make sure courts dispense justice faster.
However the senators raised a number of issues.
“Will the virtual court deal with cases whether I am in Johannesburg outside the country or I get my bail from outside the country; whether I might not go to court, whether I am in Crowhill, then I can go on virtual? After the judgement, can I then be picked up?
“We want clarity as people, what this means and the areas that will be covered by the virtual court so that there is no confusion of that issue. There is need for clarity whether there is criterion on whether it is a case of murder or what, or if it is murder, the accused then goes to the magistrates courts,” questioned Senator Morgan Komichi.
Senator Angeline Kumbirai Tongogara also asked for an explanation where these virtual courts would be in towns or rural areas?
“Sometimes there is no electricity but there are courts. Is this virtual court going to cover all or it is for the urbanites only? How about the rural areas? What is going to be happening?” she asked.
Senator Douglas Mwonzora added that the Constitution clearly states that every accused is entitled to a public hearing to which the public has access, but if people cannot access virtually, there is no public trial and the case may end up being very private.
“We know from experience that when you are conducting meetings virtually, there is always interruption of either connectivity or loss of electricity. It is a common cause in our country that electricity is a problem. If electricity and connectivity is a problem, then access to the court will be a problem,” he said.
Mwonzora also said virtual hearing may not work well with cross examinations, which is practical, effective and done in real-time.
“I think that this Bill is a revolution but a revolution that is not going to be very helpful. I would suggest that we operate a parallel system where there are physical hearings of the cases as well as virtual transmission of those cases,” he said.
Senator Dr. Tichinani Mavetera stated a virtual court relies heavily on good connectivity, which is not always available and must be carefully thought-out as the judiciary deals with “sensitive issues,” adding that traditional courts should be preserved while virtual courts become an option.
Senator Tambudzani Mohadi added the rural community faces electricity challenges while Senator Omega Sipani-Hungwe inquired as to where a suspect would be held if prosecuted virtually.
“How is judgement given virtually when I am at home or there will be a date given so that I would come for judgement to be passed? If I am being prosecuted and I know that I am on the wrong side, are there no chances of me running away if they find that the sentence is tough?”
