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Zvamaida Murwira Senior Reporter

PARLIAMENT has adopted an adverse report by the Parliamentary Legal Committee on virtual court filings through the Integrated Electronic Case Management System, an online platform designed to manage cases, the grounds being that a lot of Zimbabweans do not have easy access to the internet to file the cases and their responses.

In particular, the committee was concerned that as the system cascaded down to the Magistrates Courts, there would be a practical problem applying for bail via the internet for accused people who did not have a lawyer or who cannot afford to hire a lawyer.

The system was introduced by the Judicial Service Commission through a statutory instrument whose primary objective was to make all the courts of law in the country paperless in line with international standards, starting with the highest courts, where most filings are made by lawyers, but cascading down the system to the lowest courts, where many filings are made by untrained individuals.

During recent deliberations in the National Assembly, Justice, Legal and Parliamentary Affairs Deputy Minister Nobert Mazungunye acceded to the reservations raised by the committee chaired by Hwedza North MP Cde Itai Ndudzo (Zanu PF) when it tabled the adverse report against the regulations, resulting in the National Assembly adopting it.

The Parliamentary Legal Committee looks at Bills and statutory instruments to see if they are consistent with the Constitution and then tables its reports before Parliament for debate. While the Constitutional Court has the final say on legal interpretation of the Constitution, the committee has rarely been overruled in the past. In his contribution, Deputy Minister Mazungunye concurred with the committee on the access problems to the new system and assured legislators that he will engage the JSC and come up with amendments to address issues raised in the adverse report.

“We also noted the concerns being raised which we also believe are pertinent and as the Ministry of Justice, together with the JSC, we will sit down and come up with any necessary amendments or changes in that regard if there are any. So, we appreciate the concerns. On that note, we concur. We are not objecting to the report being tabled by the Parliamentary Legal Committee,” he said.

Deputy Minister Mazungunye subsequently moved for the adoption of the report.

“Thank you Madam Speaker. I now, with leave, move that this House having given consideration to the report of the Parliamentary Legal Committee on Statutory Instrument 153 of 2023 published in the Government Gazette on 25th August, 2023, resolves that the Statutory Instrument would, if enacted, be in contravention of the declaration of rights and some provisions of the Constitution. I submit,” he said before the National Assembly adopted it.

In August last year, the High Court Rules were amended through SI 153/2023 to allow court papers to be filed and served electronically and cases to be heard virtually through the new system, which was being expanded down from the highest level of courts to start including more cases where ordinary people could be doing the filing rather than lawyers.

On the electronic filing of documents, the committee felt that the regulations did not take into account, Zimbabwe’s level of technological development and disregarded that most of the country’s population lives in rural areas without access to computers or the internet.

It was the view of the committee that the proposals violated sections 68 and 69 of the Constitution, sections guaranteeing administrative justice and the right to a fair hearing.

“It is the committee’s view that this development did not fully consider the technological development in Zimbabwe’s ease of access to the internet or our socio-economic environment, bearing in mind that most of our population live in the country’s rural areas,” reads the report presented by Cde Ndudzo.

It noted that the public access aspect of hearings is being taken away.

“The public part of attending to the matter is eroded with the cases being heard online. There is no participation by the public in the proceedings which affects the democratic nature of fair hearings. It cannot be disputed that not everyone in Zimbabwe has access to or owns an electronic gadget that permits them to file and process electronically.

“Not forgetting that internet access is strongest in cities. The challenges are culminated by poor internet connections in most parts of Zimbabwe which are not yet within the ease of reach and convenience of the ordinary citizens,” said Cde Ndudzo.

“Further, it also infringes on the right to a fair hearing as the language of instruction on the IECMS is English affecting those who do not speak English. This affects the respect of Section 6 of the Constitution which requires that the State and all Government agencies ensure that all officially recognised languages are treated equally.”

The committee noted that the system would affect bail applications for those who were not legally represented given that they did not have electronic gadgets.

“On self-actors, bail applications become virtually non-existent as they do not have gadgets that permit them to file documents electronically. Having noted this, the committee was of the view that this was a direct violation of Section 49 of the Constitution which enunciates the right to liberty. Further, Section 50 (6) of the Constitution stipulates that any person who is detained pending trial for an alleged offence and is not tried within a reasonable time, must be released from detention, either unconditionally or on reasonable conditions. That Section seems also to be violated,” noted the committee.