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DIGITAL JUDICIAL SERVICE PROVISION GUIDANCE KIT

THE JUDICIARY OF TANZANIA

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DIGITAL JUDICIAL SERVICE PROVISION GUIDANCE KIT

Published by the Judiciary of Tanzania

MAY, 2020

THE JUDICIARY OF TANZANIA

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Judiciary Toolkit

IntroductionThe Judiciary of Tanzania is committed to developing more accessible, just, efficient and responsive court services in line with the Judiciary Strategic Plan (JSP). In order to address health and safety concerns in courthouses, chambers and courtrooms, the Judiciary has approved the use of digital platforms for certain criminal and civil proceedings.

ToolkitThis Toolkit seeks to provide basic guidance to the staff of the Judiciary of Tanzania and court users on conducting proceedings remotely through digital platforms. The objective is to minimize the risk of transmission of particular epidemic or pandemic diseases such as Covid-19.

Use and SupportThis Toolkit will be available online for use by judiciary staff and court services users. We hope that stakeholders will use this Toolkit as and when required. For any additional assistance, please contact us at: info@judiciary.go.tz.

Your Feedback

We invite stakeholders to provide feedback and suggestions for continual improvement.

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TABLE OF CONTENTS

FOREWORD .............................................. iii

ACKNOWLEDGMENT ...................................v

1. Introduction: ........................................1

2. Proceedings by Digital Platform: ............3

3. The role of Judicial Officers and

Court Officers: .....................................3

4. Applicable Rules and Procedures: ..........7

5. Technical Requirements: .......................9

6. The Role of Various Stakeholders: .......13

7. Ethical Guidance: ...............................14

8. Court Access without Digital Platform ...15

9. Judgements, Ruling, Proceedings,

Decrees or Orders: .............................16

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FOREWORD

When in January 2020 the World Health Organization (WHO issued alert about a novel coronavirus (COVID-19), few contemplated the far-reaching implications that it portended. The world is today frantically exploring ways to live and keep up with the unfolding reality, and the Judiciary of Tanzania is no exception. It must, therefore, move with speed to not only maintain access to justice by all who seek the same, but also ensure the safety of staff and court users.

The good news is that we have a solid platform from where to kick-start the urgently required response to the new realities brought about by the COVID-19 pandemic. This comes by way of the Judiciary’s Five-Year Strategic Plan (JSP), and the Citizen-Centric Judicial Modernization and Justice Service Delivery Project. Funded by the Government of Tanzania and the World Bank, the two forums give our Judiciary the much-needed technological and reform head start to mitigate the adverse effects of COVID-19. The E-COURT features currently incorporated into our JSDS2 ICT platform, have facilitated a smooth and rapid adoption of remote hearing of cases and video conferencing.

We must individually and collectively continue to marshal up our reform initiatives, leadership and managerial skills, administrative acumen, creativity, positive attitudes, and commitment with a view to maintaining the right balance between keeping all our courts functional and ensuring public safety.

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No country or institution on the planet can claim to have Guidance Kit replete with answers to fully address the challenges COVID-19 poses. Judiciaries across the globe will continue to learn from each other, always having regard to special circumstances pertaining in their respective jurisdictions. In our case in Tanzania, let us use this Guidance Kit to facilitate our internal learning and mutual adjustments as we continue to wade through the COVID-19 pandemic.

I hope that Judiciary staff and court users will find this GUIDANCE KIT a useful and helpful companion in their quest for timely dispensation of quality justice for all. While it is not by any means prescriptive as to provide answers to every query our courts will encounter in implementing the Judiciary Strategic Plan and Modernization Project, this GUIDANCE KIT is designed to exhort each one of us to unleash and employ requisite skills and potential to address the challenges posed by pandemic such as the COVID-19.

Professor Ibrahim Hamis Juma Chief Justice

Dar es Salaam, May, 2020

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ACKNOWLEDGMENT

I wish to most sincerely thank all those who in one way or the other contributed in the preparation and ultimate production of this Tool Kit.

My heartfelt gratitudes first go to His Lordship the Chief Justice Hon. Prof. Ibrahim Hamis Juma for his strategic leadership and insight right from conception of the idea to compile this Tool Kit to its successful completion. His selfless support and guidance were a source of immense inspiration and strength, while recognizing that the Tool Kit is an indispensable means to enhance the use of ICT in the dispensation of justice.

In equal measure, I wish to thank all Justices of Appeal and Judges of the High Court for their invaluable contribution in the development of this Tool Kit, particularly in its draft stage.

Finally, I am deeply grateful to the technical team of judicial officers from the High Court Main Registry, Dar es Salaam Zone, Land Division and the Institute of Judicial Administration Lushoto (IJA). This Tool Kit would surely have not seen the light of the day in record time were it not for their unwavering dedication to the cause.

Asante sana.

Eliezer Mbuki Feleshi (PhD) Principal Judge

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1. Introduction:

1.1 In order to address health and safety concerns in courthouses, chambers and courtrooms, the Judiciary of Tanzania has found it appropriate to allow the use of digital platforms such as Audio Conference Calls, Court Video Link and any other approved digital platform for certain criminal and civil proceedings as a way of ensuring the continuation of delivery of justice despite the existence of a threat posed by certain emergencies and outbreak of epidemic or pandemic such as the COVID-19.

1.2 The general objective of this Kit is to provide basic guidance to the Judiciary Staff and court users on conducting proceedings remotely through digital platform. Specifically, the Kit seeks:

(a) To outline the role and responsibilities of Judiciary Staff and court users to facilitate smooth proceedings in digital platforms;

(b) To highlight the applicable rules and procedures for conducting proceedings through approved digital platforms; and

(c) To set out basic technical requirements for the smooth conduct of proceedings through approved digital platforms.

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1.3 There is no remote solution without flaws. The Judiciary is committed to dispensation of justice, while at the same time being mindful of the need to ensure the health of judiciary staff and the general public.

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2. Proceedings by Digital Platform:

2.1 During the pendency of an emergency or outbreak of an epidemic or pandemic, or any other circumstance, every judicial officer presiding over a case shall explore the possibility of holding proceedings of the case without physical appearance or presence of the parties or their respective witnesses before the court.

2.2 Where circumstances so permit and there is an opportunity to hold such proceedings without physical appearance of the parties before the court, the presiding judicial officer may cause the proceedings to be conducted through approved and agreed digital platforms.

3. TheroleofJudicialOfficersandCourtOfficers:

3.1 Depending on the circumstances of each case, the presiding judicial officer may, prior to the date fixed for the case or remote proceedings through any digital platform, arrange for a Case Management Conference. The Case Management Conference may be a forum for the judicial officer:

(a) To deliberate with parties on whether the case will be heard remotely or otherwise;

(b) To discuss with the parties on the appropriate digital platform to be used during proceedings;

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(c) To discuss and agree with the parties on the timeline and essential preparations required for remote proceedings to be conducted through any digital platform;

(d) To propose, issue, or cause to be issued any general or specific instructions or directives on the conduct of proceedings through digital platform;

3.2 Upon conclusion of the Case Management Conference, depending on the outcome, the judicial officer shall provide guidance on:

(a) The schedule of events and timelines for the conduct of proceedings through digital platform and the applicable platform;

(b) The decision to proceed in court with appropriate precautions to prevent the transmission of an epidemic or pandemic disease;

(c) Adjournment of the case where conduct of proceeding through digital platforms is not possible due to either technical issues; the length of the proceedings; and location or number of parties or/and witnesses; or any other reason.

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3.3 Where parties are in disagreement on the proposed digital platform for conducting a proceeding:

(a) Parties may make written submissions through email or e-filing system (if available), copied to the other parties, as to what other proposal would be more appropriate.

(b) Upon receipt of the submissions from all parties, the presiding judicial officer will make a final determination as to how the proceedings should be conducted and provide directives to the parties.

(c) The court may direct that the proceedings must be conducted at a place where it is necessary to do so to secure proper administration of justice.

3.4 The foregoing notwithstanding, the method by which the proceedings shall be remotely conducted through digital platform is a matter of the presiding judicial officer to decide having regard to the most suitable method and facilities available, the applicable law, rules and practice. Provided that nothing in this Kit derogates from the presiding judicial officer’s duty to determine all issues that arise in a case judiciously.

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1.5 Where the presiding judicial officer directs that proceedings are to be conducted through a particular digital platform, he shall, before commencement of such proceedings, consider and address the following issues:

(a) Whether proceedings should be held in public or in chambers;

(b) How the proceedings will be recorded if conducted in chambers;

(c) How a video or audio proceedings can be relayed to the public if conducted in public.

1.6 The applicable digital platform to be used will be shown in the cause list along with its fixed start time.

1.7 The presiding judicial officer shall record and keep recorded all proceedings of the case conducted through any digital platform in accordance with applicable laws and practice.

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4. Applicable Rules and Procedures:

4.1 Rules and procedure applicable to respective proceedings shall be applicable to the conduct of proceedings through a digital platform.

4.2 In addition to the applicable rules and procedure, the following shall apply in relation to proceedings conducted through a digital platform:

(a) Proceedings will not be recorded by any means or in any form by parties unless the presiding judicial officer directs otherwise;

(b) Parties should, where necessary, prepare an indexed and paginated electronic bundle of documents and/or authorities for each remote proceeding, which should be presented to the court by a prescribed email or e-filing and served on all other parties or their representatives in advance of the proceeding;

(c) If a participant to digital proceedings is required to take an oath or an affirmation as part of the hearing in which he is participating remotely, the court will rely on the participant using his own scripture book in so far as it relates to the taking of oath. Regardless of how a participant chooses to make his verbal statement of oath or affirmation, he will nevertheless be bound to tell the truth;

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(d) Eating or smoking will not be allowed throughout the proceedings, a participant will only be allowed to drink water;

(e) If a party is taking part in a proceeding with a legal representative, he should agree with the representative on how they will communicate confidentially during the proceeding and if a party needs to have someone with him who is not a legal representative, he must seek permission from the presiding judicial officer.

(f) When an arrangement to use a digital platform has been made, date and time fixed and duly communicated to the parties, failure by a party to attend the proceedings, shall be construed by the court as failure to enter appearance. The presiding judicial officer shall take appropriate measures provided by the governing law taking into account the circumstances of the case;

4.3 As technological challenges cannot be ruled out, all users must be patient and adhere to court rules throughout the proceedings.

4.4 All inquiries concerning proceedings conducted or to be conducted through digital platform should be communicated to the court through specified contact or address provided by the presiding judicial officer.

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5. Technical Requirements:

5.1 Holding remote court proceedings is a complicated effort that requires a great deal of coordination. Finding suitable space for a call, quality of gadgets used and testing the technology, availability of reliable internet services, ensuring all documents are prepared and submitted in advance are just some of the matters that must be resolved before a remote proceeding is held.

5.2 Below are key technical considerations for conducting remote proceedings through digital platforms:

(a) In considering the suitability of using any of the available digital platforms, the presiding judicial officer will consider issues such as, the nature of the matters at stake during the proceedings; any issues the use of a particular platform may present in the intended proceedings; individual needs of the parties, and any issues around public access to or participation in the proceedings.

(b) The clerk or any designated court official, and the parties to a case will have to sign in for the respective digital platform in good time at the stated start time of the remote proceedings. The presiding judicial officer will then be invited in by the clerk or any designated court official.

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(c) In using audio conferencing, participants will be sent conference call phone numbers, joining instructions and will be informed that no special equipment is required other than a phone whose number should be provided to the court, and a quiet space where parties will not be disturbed during hearing.

(d) In using video conferencing, the participants should have a computer, tablet or a suitable smartphone with internet access, webcam and a microphone.

(e) In all cases where any platform is to be used for remote proceedings, the court will supply participants with information about preparation for the scheduled proceedings including checking in advance whether the participants will be able to connect, the start time of the date of the scheduled proceedings and relevant joining instructions itemizing the necessary requirements to be complied with and the instruments that must be at the disposal of the participants at least 14 days prior to the scheduled remote proceedings.

5.3 In preparing for a scheduled proceeding through a relevant digital platform, a participant may consider the following basic tips for successful remote proceedings:

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(a) Make sure that the place to be used for the proceedings is quiet, private and has restricted access to other users during the pendency of proceedings;

(b) Ensure that the device to be used is fully charged beforehand to avoid technological disruption during proceedings;

(c) Check and ensure the presence of quality and speed of internet services so as to avoid or minimize any audio/video lag;

(d) Position the camera at eye level or slightly above eye level to secure a good image;

(e) Be mindful of the background, choose a solid neutral or blank background if possible. For judicial officers, use the Judicial Virtual Background;

(f) Check the lighting. Light from a window behind might blind the camera, making the image look dark. Light above at the centre of a room might also cast shadows. Position a lamp, or sit facing a window, where the light is direct;

(g) When speaking, look directly at the camera, webcam, or mobile front camera not at the screen;

(h) Participants to speak one at a time and to

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pause prior to speaking in case there is any audio/video lag;

(i) Participants to mute themselves when not speaking in order to avoid any potential background noise;

(j) The link should only be emailed to participants in remote proceedings. Consider using a password for remote proceedings; and

(k) Test connection and setup with a test meeting fifteen (15) minutes before commencement of proceedings.

5.4 To facilitate standard operating procedures the Judiciary may issue specific guidelines for the set-up of specific digital platforms.

5.5 Once the presiding judicial officer decides on the appropriate digital platform to be used, the responsible court officer or clerk will cause relevant information relating to the scheduled remote proceedings to be transmitted to the designated judiciary staff responsible for digital platforms in order to set out basic requirements for smooth conduct of the scheduled remote proceedings and specific joining instructions prior to the remote proceedings.

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1.6 The designated judiciary staff responsible for the approved digital platforms and smooth conduct of remote proceedings will ensure that regular updates on the quality, capacity, suitability and availability of the approved digital platforms for conducting remote proceedings are provided to the court and parties to pending proceedings as may be relevant.

6. The Role of Various Stakeholders:

6.1 The Judiciary recognizes that the successful conduct of proceedings through digital platforms requires preparedness and commitment of all stakeholders.

6.2 The court, parties and/or their representatives, and witnesses are therefore expected to be more proactive in relation to all scheduled proceedings. In particular, all stakeholders shall:

(a) Ensure compliance with all the rules and technical requirements necessary for the carrying out of proceedings through digital platform as prescribed in this Kit or as may be directed;

(b) Prepare and send all exhibits and documents intended to be introduced or relied upon in evidence to both the Court and to opposing counsel well in advance of the proceeding through designated email or any other agreed medium;

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7. Ethical Guidance:

7.1 Amidst implementation of measures to control certain emergencies and outbreak of epidemic or pandemic such as COVID-19, the normal practice will undoubtedly be affected. The effect on the normal practice will not however compromise ethical comportments applicable to judiciary staff, officers of the court and parties to court proceedings.

7.2 Judicial officers, non-judicial staff, officers of the court and all participants to remote proceedings continue to be bound by the applicable laws and rules on ethical comportments and shall at all times conduct themselves in a manner that promotes timely administration and dispensation of justice.

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8. Court Access without Digital Platform

If the only option is to conduct proceedings in the presence of parties, precautionary measures must be taken, such as relocating the proceedings to a venue or place conducive for preventing the risk of transmission of an epidemic or pandemic disease or any other disease, limiting duration of proceedings by effective control of the proceedings, and keeping the number of people attending court proceeding strictly to the minimum.

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9. Judgements, Ruling, Proceedings, Decrees or Orders:

Decisions and orders made in the absence of the parties shall be promptly communicated to them through the most convenient digital platform available at the time.

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Table 1: Judiciary Customer Service address during an epidemic or pandemic

S/No

Service Skype/WhatsApp

Telephone Email

1. Requesting for a hearing of a case by a video conferencing or audio conferencing or any other platform in order to minimise transmission of an epidemic or pandemic disease

2. Requesting for instruction on how to join a remote proceeding by telephone (audio conferencing), video conferencing, court video or other approved digital platform

3. Notifying the Court on individual circumstances that may affect effective participation in the proceedings conducted by digital platform

4. Request for urgent hearing of a matter

5. Seeking adjournment due to individual reasons and circumstances relating to transmission of an epidemic or pandemic disease

6. Recording a settlement of case pending in court

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7. Request for withdrawing a case from the court

8. Procuring a copy of judgment, ruling, proceedings, decree or order

9. Filing a document, service, summons and filing fees

10. Lodging a complaint

11. Other services

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