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Report from the Law via Internet Conference, 2013

REPORT FROM THE LAW VIA INTERNET CONFERENCE, 2013
Michael Murungi CEO Kenya Law Report by Michael M. Murungi – CEO/Editor
From The Law via Internet Conference
September 26-27 2013
Jersey (Channel Islands)

Every year, the Free Access to Law Movement (FALM) – http://www.worldlii.org/worldlii/declaration/ -  holds a conference that brings together individuals and institutions from the four corners of the earth who are united in their belief that public legal information is the common heritage of humankind and that such information should be made available free of charge and free from any restrictions on its use and re-use – The Montreal Declaration on Free Access to Law.
lvi graphics The conference is known as the Law via Internet (LVI) Conference and in 2013, it was held in Jersey, that small and beautiful country in the Channel Islands. The conference was hosted by the Jersey Legal Information Board (http://www.jerseylaw.je)

The LVI Conference is the biggest international event in Kenya Law’s calendar.

The following are the highlights of the conference, from the point of view of Kenya Law’s representative.

Attendance –  The conference was attended by over 120 delegates from 29 countries from all the continents. Africa had delegates from Kenya, South Africa, Namibia, Zambia, Zimbabwe and the Seychelles. The Kenyan Chapter of the International Commission of Jurists was represented by Ms. Anita Nyanjong.

#Westgate #We are one – The delegates expressed their sympathies to Kenya over the loss of life, injury, national trauma and destruction of property that that was the tragic aftermath of the siege of Westgate Shopping Centre in Nairobi a week before the conference.

LVI 2014 in Kenya? – Kenya Law placed a bid to host the LVI conference in 2014. The bid is under consideration by the relevant FALM committee and the outcome will be announced soon.

Conference papers – All the papers and presentations made at the conference will soon be available online: http://www.jerseylvi2013.org/

Some highlights from the presentations and papers made at the conference:  The conference agenda was rich and full of great papers and presentations organized in morning plenary sessions and three parallel sessions/tracks in the afternoons. While it was not possible for me to attend all the sessions, I managed to pick some great lessons from the ones that I attended.

  1. #The Internet Age and the challenge of managing personal information contained in court decisions
  2. #Better the fence at the top of the cliff than the ambulance at the bottom – Transforming legal information into public knowledge – ‘Law for life’
  3. #Complexity of Legislation as a barrier to justice and the rule of law – The Good Law initiative (UK)
  4. # Judge and Accused are now ‘friends’. Accused has posted a comment on Judge’s wall. Accused is now following Judge:The Internet age and the challenges of managing jury access to prejudicial trial information
  5. #Online publishing of UK legislation by The National Archives (….or why the bell tolls for printed legislation)
  6. #Legal Information App – The Austrian case study
  7. #Tailor-made legal databases – a solution for Kenya’s myriad quasi-judicial tribunals?
  1. 8.      #An international treaties database – Linking Kenya Law’s treaties series with WordLII’s treaties collection
  1. #Hosting of LVI in Kenya in 2014?

                   1. #The Internet Age and the challenge of managing personal information contained in court decisions

 CJ of Jersey - Sir Michael BirtSir Michael Birt, the Bailiff and Chief Justice of Jersey did the welcome and introduction keynote. Picture courtesy of Jersey Legal Information Board – www.jerseylaw.je

 The Bailiff and Chief Justice gave a thought-provoking scenario – say a father is accused of having sexually assaulted his 12 year old daughter, in protecting the identity of the child, the court will necessarily have to ensure the relationship between the accused and the victim is not disclosed. So in addition to redacting the name of the child, the court endeavours to the greatest possible degree, not to disclose the relationship (or even to hint that there is a relationship because this would lead to a disclosure of the child’s identity by inference). However, when sentencing the accused person, the court, in its duty to give the reasons for its sentence, finds itself in a situation where it may have to give certain information that will lead to the identification of the victim – this is because the nature of the relationship between the victim of a sexual offence and the perpetrator is material to the severity of the sentence to be meted out. The court is caught in this dilemma where on the one hand the law requires it to state and make public the reasons for the sentence and on the other it is under a duty not to directly or indirectly disclose the identity of the child.

  • At Kenya Law, we take very seriously the need to protect the privacy of individuals, particularly in not breaching their right not to have information about their private affairs unnecessarily disclosed. This is both out of our constitutional obligation and as a matter of good sense. We have implemented guidelines for redacting personal and sensitive information from judicial opinions and we improve on these guidelines with new and emerging knowledge and best practices. In order to engage the Judiciary as a key partner in protecting the privacy of individuals, we have developed a draft practice direction for the consideration of the Chief Justice’s office, to ensure that these guidelines are a part of the judgment writing process.
  • Perhaps the next level in safeguarding the privacy of individuals involved in court proceedings would be to work with the Director of Public Affairs and Communications in the Judiciary to in preparing a guideline to be followed by the media when they report sensitive cases, particularly where there is a risk that information contained in media reports may indirectly lead to the disclosure of the identity of a person whose identity should be protected.

2.         #Better the fence at the top of the cliff than the ambulance at the bottom – The UK’s Law for Life initiative

law for life picPresentation by Martin Jones, Esq, Director, Law for Life (UK), the Foundation for Public Legal Education – http://www.lawforlife.org.uk/

 

The mission of the UK’s Law for Life foundation reads like an extended version of Kenya Law’s slogan: to ensure that ordinary people are empowered by building the knowledge, confidence and practical skills that they need to deal with the law in the course of their lives.

Through its sister website – http://www.advicenow.org.uk – the foundation ‘translates the law into accessible and engaging information which not only explains the law but empowers [the citizen] to use it’.

Guided by the premise that it is better the fence at the top of the cliff than the ambulance at the bottom, the Foundation’s approach is that in the same way that citizens access and use preventive health information to manage their health and avoid disease, the same rationale should apply to the law – citizens need to be empowered with the legal information and knowledge they need to anticipate, avoid or manage a legal disaster as opposed to focusing on disaster management through legal first aid/legal representation services. This would not mean that legal representation would become obsolete (and what if it does?) but the level of representation will move from the mundane to the absolutely has-to-be-done-by-a-lawyer stuff. One does not have to see a surgeon about a scratch or see a lawyer about something for which self-administered legal first-aid will do.

  • The old barrier in accessing legal information was the reluctance of government to share it. Today, the new and subtle barrier is the technical form and language in which the information is provided.
  • The Law for Life initiative is what Kenya Law hopes and aspires to be. We have come to an enlightened understanding our mission in the world and we are moving from being a mere provider of public legal information to Kenya’s focal point in empowering the citizen with legal knowledge.
  • One of our flagship products in this shift in paradigm is The Mwananchi series, a line of publications that contains plain-language and Swahili translations of the summaries of landmark judicial opinions.

 3. #Complexity of Legislation as a barrier to justice and the rule of law – The Good Law Initiative (UK)

Through Martin Jones I also came to learn about The UK’s Good Law initiative – https://www.gov.uk/good-law – an initiative aimed aimed at making legislation less complex and accessible.

The premise of the initiative is on all fours with Kenya’s situation: People find legislation difficult. The volume of statutes and regulations, their piecemeal structure, and their level of detail and frequent amendments, make legislation hard to understand and difficult to comply with. That can hinder economic activity. It can create burdens for businesses and communities. It can obstruct good government, and it can undermine the rule of law.

 

No doubt a very yet very challenging initiative. The complexity of the law – particularly the fact that this has apparently led to the capture of the law and justice system by one social class, namely, the legal professionals – is a big obstacle in access to justice. (see related article http://www.nation.co.ke/oped/Opinion/Besides-accessing-the-law-Kenyans-have-to-understand-it-too/-/440808/2012248/-/12onp9i/-/index.html). UK’s Good Law initiative is just what the doctor ordered for legislators, legislative draftspeople and legal professionals.

Presently, Kenya is in what has been described by a senior jurist (who was quoting the late great Prof. Okoth Ogendo) as a time of juridical conflation. We have over 600 acts of parliaments in force with hundreds upon hundreds of regulations backed up by circulars upon guidelines upon rules etc. Legislation has become somewhat of a national therapy for us – a natural response to disasters and social problems. While legislation is an absolute necessity for social order (you cannot have the rule of law without the law) juridical conflation is an injustice, a dead weight on society that only feeds the bureaucracy. It takes very bold visioning and planning to take the first steps in lifting this dead weight and starting to legislative on a new template of “necessary, clear, coherent, effective and accessible” legislation.

  • As the official publisher of the Laws of Kenya, Kenya Law has a role to play in ensuring that legislation is understandable and effective.
  • Kenya Law will use the example of the UK’s Good Law initiative to engage with the other stakeholders in the chain of legislation making with a view to improving the quality and effectiveness of Kenya’s legislation.

4. # Judge and Accused are now friends. Accused has posted a comment on Judge’s wall. Accused is now following Judge – I imagined Clive Colemanthese social media scenarios as I listened to a presentation about the Internet age and the challenges of managing jury access to prejudicial trial information.

 Clive Coleman (pictured, courtesy of www.bbc.co.uk) is a BBC legal correspondent, Barrister and broadcaster and comedy writer.  He was a guest speaker at the conference where he delivered a presentation titled The Rise of the Right to Privacy and the Policing of the Law of Contempt in the Internet Age. He talked about the rise and influence of social media, how internet communications are becoming increasingly embedded into daily activities, and how this poses a challenge to the sanctity of the jury system – the ground rule is that the members of the jury are not to be influenced by any material that is not before the court, such as media reports about the case, internet posts and social media discussions about the accused – because such material has not been produced in court where it can be challenged by the defence and its evidential value tested by the court.

Coleman posed the definitive question: Because of the contagious nature of internet communications, does the good old admonition by the judge for the jury to avoid contact with or being influenced by prejudicial information still hold or are the jurors of today ‘sailing below the waterline’ in the flood information?

  • We do not have a jury system in Kenya (the closest we came to it was in having assessors in murder trials but their verdict was not binding on the court and the system was abandoned some years ago). But Coleman’s argument could also be applied to judges and magistrates – presumably, their professional training and code of ethics guides them in guarding themselves from the possible influence of external material such as media reports. But in today’s information age, does the change in the means, form, ease and impact of online communications require that some controls on information use and access be drafted into the judicial officer’s code of conduct?
  • There is the old rule that a judicial officer should avoid all forms contact with the parties to a case outside of the court process. Do we need a 21st century update of the rule to extend this ‘contact’ to the judicial officer’s activity on social media? For example, what would be the likely impact, if any, on the perception of impartiality in a trial if a judge who is presiding over a criminal case accepts a Facebook ‘friend’ request from the accused; or if he is ‘followed’ on Twitter by the accused; or if the accused makes a comment on a statement that the judge makes on a social media or blog page.
  • Judicial officers, just like many other people, have a social media life. Some are dormant and rarely post any material save for innocuous random comments celebrating the beauty of a new day or a national achievement but others are active and vibrant, often including posts expressing an opinion about the trending topic of the day, or sharing a joke or even propagating a viral internet meme. I would suppose that this is all fine but it does call for a reconsideration of the judicial ethics code. (There is also a duty on the parties to the case to refrain from improper forms of online contact with the judicial officer – perhaps a case too for the reconsideration of the laws of contempt of court and the protection of the integrity of the judicial process).

5. #Online publishing of UK legislation by The National Archives (…and why the bell tolls for printed legislation)

The national archivesCarol Tullo- The Director of Policy and Policies, The National Archives (UK): ‘Solving the challenge of the 21st Century Statute Book’

 

I recall that some years back, when I inquired from an acquaintance in the UK about the availability of UK legislation, he told me that though the government had a website for free public access to the legislation, it was not reliable and most people relied on commercial legal publishers. How much things have changed since then. The UK National Archives has published UK legislation online – www.legislation.gov.uk. The National Archives has the official mandate to publish the laws of the UK and to manage crown copyright.

 

The oldest statute on the website is the Magna Carta of 1297. The website records millions of unique users per month. Updating the website is a challenge, presumably because of the high volume of legislation that is passed by the United Kingdom’s legislative bodies. The website therefore has a tool for informing users about pieces of legislation that have changes/updates pending to be made. The greater percentage of traffic to the website comes from search engines and the content is provided without unfair copyright restrictions – under a Government Public Licence (GPL).

I asked Carol how online publishing of the legislation has changed their paper printing arrangements and she told me that the decision to go online and to reduce on print was driven by the needs of their users, a majority of find it more convenient to access the law online rather than in print. She added that the National Archives had significantly reduced its print component and that it was probably only a matter of time before the printing of UK legislation is abandoned altogether.

My take-home:

  • Open Government Licence: The UK’s Open Data initiative,  Government Licence -  http://www.nationalarchives.gov.uk/doc/open-government-licence/version/2/         – is   Kenya Open Data Initiativearguably one of the world’s leading examples of how governments can remove unfair restrictions on the use and reuse of public information and how they be transparent and accountable through easy and full public access to their information. Kenya launched an open data initiative – which was probably Africa’s first – but there is a lack of clarity on the obligation of government agencies towards the initiative and even more importantly, on the terms on which the public may use the information. Open Data is not ‘open’ unless the government issues a clear policy/legal statement removing all unfair copyright restrictions on the use of public information data sets. The UK Open Government Licence and Creative Commons – www.creativecommons.org – are there for Kenya’s taking and adopting.
  • A new online database for Kenya’s Legislation: Kenya Law will soon be releasing a new and improved online edition of the Laws of Kenya. Kenya Law would have the same challenges in updating the database as the UK National Archives, and Kenya Law would benefit from a sharing of knowledge with the UK-NA, particularly on the latter’s workflows and processes and the some of the features on its legislation website, such as notifying our users about changes that are pending to be made to legislation and a time-stamp showing the last time any piece of legislation was updated.
  • No more printing?: Save for a few specialized editions of the laws, Kenya Law has largely published the Laws of Kenya only on its website and left the paper printing to the Government Printer. Because of the big cost of paper printing and owing to a shortfall in financial resources, Kenya Law has had to considerably reduce its paper printing of the laws. The Revision of Laws Act and the Kenya Information and Communications Act, 1998 give legal recognition to digital versions of the Laws of Kenya. Some questions to ponder for the Government Printer and Kenya Law:

◦       Is it time to start the phasing out of paper printed legislation in Kenya? Is it what the Kenyan consumer would like? If so, what online service models for providing access to Kenya’s legislation would best meet the citizen’s expectations – mobile app, WAP, SMS query service, etc? How can an online version of the Laws of Kenya be made more attractive to traditional print version users?

6. #Mobile Apps for Legal Information – The Austrian case study

RISSpeaking of a mobile application for legal information, meet Clement M Wass, an inspiring innovator and civic-minded entrepreneur who partnered with the Austrian Federal Chancellery and the University of Salzburg, to design a free mobile application providing acccess to Austria’s laws.  You can read Clemen’s career story here – https://www.executiveacademy.at/en/about-us/news/Pages/Career-story-Clemens-M-Wass.aspx  – As far as I could establish, the RIS:App application, which is available for both iOS and Android mobie devices, is the first and the most successful case of a free mobile application providing access to national legislation developed with the involvement of the government.

 

The application and the legislation are provided in the German language (or is it Austrian). The App – ‘Ris:App’ – can be downloaded for free into apple (Apple’s Itunes Store) and Android mobile (Google Play) – see http://www.ris.bka.gv.at/UI/RISApp.aspx

  • Kenya Law is partnering with Strathmore University’s Ilab in developing an Android application for Kenya’s public legal information, and Austria’s success in doing this would be a great case study.
  • The application no doubt requires the use of smart mobile device such as a smart phone or tablet. While there is no disputing the high rate of mobile penetration in Kenya, the Kenya Law-Ilab needs to take into account some useful statistics, such as how many Kenyans have access to smart devices and/or what kind of app or mobile legal information platform would be best suited for the largest cross-section of Kenyan users.

7. #Tailor-made legal databases – a solution for Kenya’s myriad quasi-judicial tribunals?

Presentation by Peirre-Lemyre (Manager of Business Development), LEXUM, Canada: ‘Blending In: Lexum’s Aproach to Cloud-based Services’ www.lexum.org

lexumLexum represents one of the best models that I have seen of a socially responsible business in the legal field. It is a software company that provides products and services to legal information users as well as various other organizations that manage large collections of documents. Lexum has been innovating for many years to develop products that reduce the risks and costs involved in managing, publishing and providing access to information. It started in 1983 with a collaboration with the Supreme Court of Canada that saw the online publication of the court’s decisions and grew into an institution that has democratized access to high-quality technology that would otherwise be costly and much less available, ‘providing clients with worry-free and investment-free professional information management, publishing and search services’.

Lexum’s best known work is probably its design and maintenance of the website for the Canadian Legal Information Institute, CanLII. Not so long ago, Canadian legal documents were not easily accessible to the public or even to legal professionals. Through its partnership with the Federation of Legal Societies of Canada, Lexum developed and now manages what is Canada’s leading public legal information website: www.CanLII.org – providing free access to the decisions of Canada’s Courts and the country’s legislation.

A good example is Decisia http://www.lexum.com/en/products/decisia – an online tool for decision-making bodies wishing to provide easy and professional access to their decisions from their own website, intranet and extranet.

In Canada, courts, boards, tribunals, agencies, associations and other similar institutions use Decisia to manage and self-publish their judgments, decisions, opinions, orders, as well as related documents such as hearing notices, bulletins or press releases. Organizations use Decisia to power their public websites, to offer subscription services, or simply to meet internal access needs.

  • Kenya has many tribunals and quasi-judicial bodies that make decisions which they would like to self-publish. Several of them have approached Kenya Law for assistance in this regard. Kenya Law is looking at the suite of Lexum’s products, particularly Decisia, with a view to presenting them as solutions that the Tribunals may consider for publishing their decisions.
  • Alternatively, Kenya Law will consider acquiring Decisia or any other appropriate self-publishing solution and work with the tribunals and other Legal Information Institutes (LII) in Africa in implementing it as a technical solution for managing their information. It might cost less than having to build a database from scratch. But of course the sustainable way of doing this would be to ensure the transfer of both the knowledge and the responsibility of maintaining the database to the particular tribunal or LII.
  • Kutoa taarifa za kisheria kwa lugha ya kitaifa na lugha rasmi – publishing public legal information in the national and official languages. When it comes to providing public legal information in bilingual formats, Canada is a great example. With two official languages – English and French – Canada’s government is organized to originate public information in both languages (as opposed to originating in one language and then translating it downstream to another language). Virtually all of Canada’s public information websites, including www.canlii.og, are provided in both languages. In Kenya, even though Swahili is constitutionally recognized as the national language (not to mention the de facto lingua franca of East Africa) and also one of official languages (the other being English), public information, and particularly public legal information, is almost exclusively originated in the English language. Language is therefore a major barrier in access to and understanding of public legal information in Kenya. This is unfortunate. It needs to be decreed for all of Kenya’s public information to be originated in Swahili or at least in bilingual formats. Through the Mwananchi Series, Kenya Law is providing Swahili translations of plain-English summaries of selected/landmark judicial decisions. We hope that this and other actions that we are taking will inspire a policy and legal shift towards removing the language barrier in accessing Kenya’s public information.

8. #An international treaties database – Linking Kenya Law’s treaties series with WordLII’s treaties collection

The World Legal Information Institute http://www.worldlii.org/int/special/treaties/ is one of the leading success stories of the Free Access to Law Movement. It is a free, independent and non-profit global legal research facility developed collaboratively by a number of Legal Information Institutes and other organisations. It provides a federated search across and within vast collections of legal information databases from many parts of the world.

Included in its collection is a segment on Treaties that contains the entire collection of the UN treaties series, other international treaties and agreements as well as links to other treaty collections.

  • Kenya Law completed its own online treaties database in 2011. This database is to be cross-referenced with the WorldLII collection.

9. #Hosting of LVI in Kenya in 2014?

Kenya Law has put in a bid to host LVI 2014. How wonderful it would be for Kenya Law to host this conference. It would be a crowning of our coming-of-age and our status as Africa’s (and one of the world’s) leading public legal information institutions.

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