ODR in Africa: The Emergent Face of Dispute Resolution Post COVID 19

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The COVID-19 pandemic has brought to the fore what most people in emerging economies particularly in some countries in sub-Africa have never really given a thought to – working from home. For a majority of Africans in the sub-Sahara, special dispensation is usually afforded to employees who work remotely on an exceptional basis. i.e. illness or circumstances that are extremely grave. There is no doubt that the ability to work from home has been mainly due to the widespread availability of constant electricity and the availability of consistent Internet service. Most employers and employees are however unable to access the tools to work remotely as they do not possess the economic resources to do so.

In the last couple of weeks, although sub-Sahara Africa seem to have avoided the worst impacts of the pandemic, our legal systems have effectively grounded to a halt. Most sub-Saharan Africans have been directed to stay in their homes by their various Governments. Sub-Saharan Africa is not alone in this fate but it appears that the impact on the administration of law and business in sub-Saharan Africa is disproportionately impacted as a result of these directions. Also most of the global workforce has been forced to adjust but we do not appear to have been able to benefit from the technological improvements made globally to ensure continuity in the Court systems and the business area.

In the last decade, the Internet and mobile technologies have become a part of everyday life for most in the world. Mobile technologies are almost omnipresent in many nations.

According to the Pew Research Center[1] ,“In a few short years, the proliferation of mobile phone networks has transformed communications in sub-Saharan Africa. It has also allowed Africans to skip the landline stage of development and jump right to the digital age….Today, cell phones are as common in South Africa and Nigeria as they are in the United States.” The Nigerian Communication Commission (“NCC”) has said the number of Internet users on the Global System for Mobile Communications (GSM) networks has increased from 105,066,589 in August 2018 to 128,723,188 in January 2020.[2]

Mobile technology is also changing economic life in parts of sub-Saharan Africa, now, many are using cell phones to search for information, make or receive payments as well as make purchases with native mobile payment applications such as Quickteller, Paga, Readycash, M-Pesa; Paystack. According to the Global system for Mobile Communications Association (GSMA), as of 2019, smartphones remained the primary access to the Internet despite the influx of other mobile and smart devices. In another report approximately 23% of the population in sub-Saharan Africa use the mobile Internet on a regular basis and it is projected that by 2025, almost half of the population would have subscribed to a mobile service.[3]

The Internet in sub-Saharan Africa is largely used for communication purposes and is closely followed by online retail transactions as can be deduced from active social media usage.  Among those who access the Internet on their mobile phone, 57% visit social networks, 39% use email, 38% listen to music or watch video, and 31% read news. Instant messaging is highly popular and used by 41% of consumers.[4] When it comes to social media platforms, Facebook continues to dominate. It remains the most used platform among both marketers and consumers; Instagram now has over 1 billion monthly active users–a 42.86% increase from 2017; As of Q1 of 2019, Twitter had about 330 million active users worldwide. LinkedIn has a completely different audience type compared to other social media platforms, and is the largest professional network.[5]

Nigeria has a current estimated population of over 190 million[6] people with approximately 84 million people (almost half the entire populace) under the age of 20 and with forecasts for this demography to account for at least 52 percent of the population, the demand for mobile phones, personal care products, electronics, fashion items and food is steadily on the rise.[7]

With those numbers in mind, it can be imagined the number of online conflicts that will also arise. Mobile Technologies have capacity to proffer solutions to the issues that could arise. but technology can also create disputes.

Online Dispute Resolution (ODR) has been defined as "the adaptation of technological tools and systems for the resolution of offline and online disputes.[8]

Even though ODR evolved from a necessity to resolve disputes that arose in the online community, we have seen the adaptation of technology to adjudication by the courts. ODR therefore is not only a tool to assist the neutral in Alternative Dispute Resolution (ADR).

Due to the Covid-19 Pandemic in Nigeria, the Chief Justice of Nigeria upon the Order of the Federal Government has directed a lockdown of our Courts as well as the various ADR centers in the last couple of weeks.[9] The circular of the Chief Justice of Nigeria Ref. No NJC/CR/HOC/11/656 dated 8th April 2020 further heightened this uncertainty in the administration of justice system by extending indefinitely the suspension of Court sittings upon the expiration of the earlier two weeks lock down that commenced on the 24th of March 2020.

Nigerian Courts are closely connected to the ADR centers. Nigeria has been particularly forward looking and houses the first court, which is connected to an ADR center in Africa – the Lagos Multi-Door Courthouse. (LMDC). Of the 36 States in Nigeria, Sixteen States currently have established by Law, court connected ADR centers.

According to Ethan Katsh,[10] ODR may even turn out to be of value to the courts. If eBay can handle many millions of disputes and government agencies can take advantage of new tools to engage citizens, courts should be able to adapt to a new kind of alternative, one that is less an alternative to litigation and more an alternative to the physical structures in which courts are located and to the inefficient and expensive use of human labour that typifies even small claims courts.

The use of technology in dispute resolution and justice Administration in the developing economies has been ongoing for close to two decades but it maybe that the COVID-19 pandemic will bring ODR to the fore. Dr. Tom Clarke, National Center for State Courts (NCSC) an independent not for profit organization focused on improved judicial administration of courts worldwide said recently

 “I find it immensely ironic that the coronavirus crisis will do more for virtual courts than decades of work by NCSC. I’m glad to see it come, even if this is not the way I would wish it to happen.[11]” –

The above statement is already been played out in Kenya. Upon the breakout of the COVID-19 Pandemic and the lock down of most countries, the Chief Justice of Kenya[12] proactively issued a practice direction providing for electronic case management. Kenyans are allowed despite the Pandemic to file and serve electronically court processes. Justice Hannnah Okwengu of the Court of Appeal delivered 57 Rulings and Judgements of the court via video link with promise that the judgements/Rulings would be available for download 48 hours after. Also the High Courts in Kenya continue to hold sittings via video conferencing and Criminal Justice Administration is not halted as cases are conducted via video conference linked with remandees at Kapsabet GK Prison and Shimo La Tewa Prison.

On Friday March 20, 2020, the Chief Justice Brat Katureebe[13] in line with the executive order by President Museveni of Uganda, suspended all court hearings for a period of 32days. The directions however made provisions for urgent proceedings via video link, judgement and rulings online via electronic mail.

So in Kenya and Uganda, even though a stay at home order is in force, law and order has not be suspended and ODR has adequately filled the vacuum and peculiar situation occasioned by the COVID-19 Pandemic.

This is a wake up call not only for Judiciaries in Sub- Sahara Africa but to the citizens who by the studies now have access to the Internet via their mobile telephones to embrace ODR for more efficient and cost effective alternatives to the Administration of Justice and Dispute Resolution.

ENDNOTES [1] https://www.pewresearch.org

[2] https://www.ncc.gov.ng/stakeholder/statistics-reports/industry-overview#view-graphs-tables-5 Accessed on 11/4/2020

[3] https://techpoint.africa/2020/02/28/mobile-phones-evolution-nigeria/ Accessed on 11/4/2020

[4] Sandvine IBN (2013). Global Internet Phenomena Report: 2H. Available at https://www.sandvine.com/downloads/general/globalinternet-phenomena/2013/2h-2013-global-internet-phenomena-report.pdf

[5] https://sproutsocial.com/insights/social-media-statistics/ Accessed on 11-4-2020

[6] https://data.worldbank.org/indicator/SP.POP.TOTL?locations=NG Accesses on 11-4-2020

[7] ‘Online Shopping Survey Report July 2014 – A Study of Current Trends in Online Shopping in Nigeria’ A survey report carried out by Philips Consulting. www.philipsconsulting.net

[8] O. Rabinovich-Einy & E. Katsh, Digital Justice: ‘Reshaping Boundaries in an Online Dispute Resolution Environment’ (2014) Volume 1 International Journal of Dispute Resolution 22

[9] https://www.today.ng/coronavirus/nigeria-suspends-court-sittings-287561 accessed 8-4-2020

[10] Ethan Katsh: ODR: A look at History http://wwwmediate.com/pdf/katsh /pdf accessed 8/4/2020

[11] https://www.ncsc.org

[12] https://www.judiciary.go.ke.kenya accessed 9-4-2020

[13] https://www.softpower.ug/chief-justice-suspends-court-sessions-due-to-coronavirus/accessed 9-4-2020