The evolution of digital legal proceedings in African countries: Nigeria, Egypt and South Africa in the focus

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Integrating IT technologies in Africa At the recent IT forum Russia-Africa: Digital technologies as a driver of state development and international cooperation, in the context of cooperation between Russia and African countries in the field of information and telecommunications technologies, agreements were reached on introducing artificial intelligence technologies based on the experience of implementing experimental legal regimes. According to the Ministry of Finance, the export of information, computer and information services from Russia to African countries in January-September 2022 amounted to $8.1 million, and imports - to $2.7 million[249]. According to experts, cooperation in this area is expected to grow due to the creation of new economic centers on the African continent, and hence the need to develop conceptually new methods of dispute resolution in connection with the introduction of end-to-end digital technologies in various spheres of society. Dispute resolution mechanisms are a key area for ensuring law and order in African countries. The integration of digital technologies into the economy, the state apparatus, and justice is impossible without availability of the Internet in African countries. According to statistics, Nigeria became the leader in the number of Internet users (122 million). It is followed by Egypt - 80.22 million users; South Africa takes the third place with 43.48 million users, Morocco is the fourth with 33.18 million and Algeria closes the top five with 32.09 million users[250]. Most users use the Internet via smartphones, which significantly reduces the cost in comparison with a desktop computer. Thus, in order to successfully implement the concept of creating e-justice in African countries, it is necessary to develop mobile applications that could be used by the majority of the population. It seems possible to draw a parallel between the development of IT (Rusakova & Frolova, 2022), the spread of the Internet in a particular country and the development of electronic justice. Drawing attention to the best practices in the development of e-justice in Nigeria, it can be noted that this process began relatively recently The process of establishing electronic justice in Nigeria has become possible since the introduction of amendments to the Federal Rules of Civil Procedure and Section 84 of the Evidence Act 2011, which consolidated electronic access to court cases (Nwaeze, 2020). The first courts allowing to carry out actions in electronic form were the National Industrial Court of Nigeria (Civil Procedure Rules of 2017) and the Court of Appeal (Practical Guidelines of 2014). These rules establish the possibility of applying to the court and carrying out a number of procedural actions in electronic form in order to speed up the proceedings. A special electronic center has been created at the National Industrial Court (NIC); it accumulates all the information received. In addition, in order to use this service, the parties or the lawyer must register with the Electronic Documentation Manager (EFM) (Shima & Esq, 2017/2018). Vitalis Akase Shima and Bem Aboho correctly point out that the introduction of electronic technologies in judicial proceedings increases transparency, speed of justice, and solves a number of existing problems, namely, ensuring the security of court documents. As elsewhere in the world, the development of digital justice in Nigeria was influenced by the COVID 19 pandemic, which resulted in the adoption by the Chief Justice of Nigeria of Circular NJC/CIR/HOC/II/656 in April 2020; it allowed for remote court sessions. However, the practice of applying this circular is rather varied. In some states of Nigeria (Lagos, Ogun, Rivers and Abuja), remote courts were established to file the documents, register the case, and pay the state fees via e-mail, WhatsApp or Dropbox. As of 2019, River State in Nigeria developed its own RivCOMis platform, through which electronic filing of documents to the court is carried out (Olugasa & Davies, 2022). The use of messengers and common video conferencing platforms seem to be a necessary measure for administration of justice in emergency situations (Bezbakh & Frolova, 2022). However, the constant use of these technologies casts doubt on the legitimacy of this process in view of possible procedural violations leading to unconditional cancellation of court decisions (Rusakova & Frolova, 2021; Rusakova & Frolova, 2019). In contrast, in Kenya, as the country with dedicated platform, in 2020 the Kenyan Court of Appeal issued 57 rulings using the low-cost online video conferencing platform Zoom. It should be noted that Nigerian leadership adheres to a two-stage approach in the process of integrating technology into judicial proceedings: the immediate introduction of simple publicly available technologies and the ongoing technical modernization of the entire judicial system at a deeper level[251]. According to practical instructions of the Federal High Court, during the period of COVID-19, courts were allowed to use Zoom, Microsoft Teams, Google Meets, and Skype in their activities. Muyiwa Ayojimi, a legal practitioner and Convener-Society for Notary Public in Nigeria notes that evidentiary law has undergone profound changes. Thus, key amendments to the Law on Evidence of 2023 were made to section 84 (Information in electronic form), namely: the use of oaths and digital signatures using audiovisual means; submission to the court of any information and materials in accessible electronic form with the possibility of its further use; any information contained in the form of an electronic record that is printed on paper, stored, recorded or copied to optical and magnetic media in cloud computing or a database created using a computer is considered a document and is evidence in the case; authentication of an electronic signature (confirmation of an electronic signature by affixing a digital signature); giving evidence under the oath is allowed by means of audiovisual means, however, it must be indicated which method was used, as well as the date when it was used[252]. Muyiwa Ayojimi’s position seems to be feasible in determining the advantages of using digital and electronic signatures in the process, since they are safer, faster, more efficient, more convenient to use, legally recognized in many countries of the world, controlled and accountable (through control journal). These advantages make the judicial process more transparent and understandable for those involved, and it is expected that this practice will spread to other spheres and industries in all countries of Africa. Egypt may demonstrate best practices in creating e-justice As part of implementing Vision of Egypt until 2030 state program, a digital platform for litigation in economic courts was introduced. It allows managing cases and carrying out procedural actions based on a unified technological judicial system[253]. Back in 2019, Law No. 120 of 2008 on economic courts was amended to provide for the possibility of submitting documents, registering and assigning cases for hearing using electronic means, for example, by e-mail. According to the law, a complaint against the decision of the first instance to the Economic Court may be filed electronically through a special website, but signed with a certified electronic signature, provided that registration has been completed in the electronic registrar of the court. Saifallah Kadry emphasizes that the law did not exclude the possibility of submitting documents in the usual format, but only added a new way of carrying out procedural actions in electronic form. Therefore, the obligation to conduct a paper case by the court is preserved. It is expected that the electronic form of administration of justice will be consolidated in procedural laws. Currently, e-justice is generated with an e-government information system on which this option is available. In order to start a trial, a lawyer must register on the digital government portal by choosing the services of the Ministry of Justice. After that, the claim and all necessary documents are sent electronically. Then the responsible employee of the court checks the case materials and the lawyer receives a message about the acceptance, refusal or need to change the statement of claim. If the verification is successful, a link is sent to pay the court fee. Upon receipt of payment confirmation, the competent officer hands over the case to the judge and informs the lawyer of the case number and the date of hearing. The defendant is also notified of the time and venue, the number and the subject of the case. The defendant will also send his objections and the necessary materials to the court. The next stage is the debate and the decision, which is scanned and stored in an electronic archive (Abd-Elkawe, Belal & Abd-Elwahab). M. Kh. Abd-Elkawe, Mohamed A. Belal, A.M. Abd-Elwahab believe that it is necessary to introduce online and remote court sessions, as well as to extend information and communication technologies to the entire judicial process, which will increase the speed of the trial, standardize court procedures, reduce the burden on participants in the proceedings and court staff, create a database court cases, and comply with the procedural deadlines. The origins of electronic justice stem from the establishment of economic courts in 2008. Since then digital technologies are being more actively introduced. The characteristic delays in legal proceedings and the complexity of the dispute resolution procedure have led to the need for changing the current situation. This situation did not correspond to the existing realities and slowed down the pace of economic development of the country, as well as reduced investment attractiveness. The Government of the country has made the only right decision to prevent such problems by establishing special courts (economic courts). They are aimed at active integration of information and communication technologies; this will allow them to comply with the trends of world practice in resolving economic disputes (Bashilov & Berman, 2022). Since 2019, electronic filing of applications to court and receipt of court notifications has become possible with Law No. 149/2019 that introduced a provision on the possibility of uploading cases confirmed by electronic signature. Moreover, this law expanded the competence of economic courts to hear cases related to non-banking financial services, including money laundering and bankruptcy cases. Besides, a new commission called Group on Preparation and Mediation was created and changes in the provisions of enforcement proceedings were introduced (Hassan, Rabie & Khaled, 2020). In 2020, the Minister of Justice issued Decree No. 8548/2020 providing for the creation of a unified electronic register of users of the commercial court in electronic form[254]. In order to register, the following documents must be attached, namely: a copy of the national identity card for individuals and/or legal representatives of legal entities, as well as a certificate confirming the applicant’s electronic signature in accordance with the Law on Electronic Signature No. 15 of 2004; a different list is provided for other persons. After registration in the electronic registrar of the court; any notification sent to the specified e-mail address is deemed received from the date of its dispatch (Kadry, 2021). In 2020, the Ministry of Justice launched a remote civil case review service in six courts of first instance in accordance with the instructions of President Abdel Fattah Al-Sisi on the development and automation of the judicial system, as well as in accordance with the state policy of digital transformation[255]. Currently, we are talking about the possibility of initiating civil cases, paying state fees, appointing court sessions and receiving notifications but the trial itself is still carried out in the presence of the parties before the judge. The Ministry of Justice encourages lawyers to use this new service and welcomes their proposals aimed at helping them realize the rights of citizens and accelerate the achievement of justice. Currently, courts in Cairo, Giza, Alexandria, El Mansour, North and South Giza can be accessed through the official website of the Ministry of Justice. QR codes are also available to track cases in the Egyptian Council of State Court. The country’s leadership is continuing to implement all the digital programs announced at the Cairo International Exhibition of Information and Communication Technologies in 2020. With regard to digital justice, enormous steps are being taken in this direction to achieve this goal. The Egyptian legal community expects that participants in court proceeding will be given the opportunity to carry out all procedural actions in electronic format, including freeing them from mandatory court appearances. They also hope that a single platform will be set up and unite all law firms and government agencies, including courts, to efficiently carry out their activities (Kadry, 2021). Judicial practice on the use of electronic documents as acceptable means of proof also supports this approach. In its decision No. 17689, the Court of Cassation indicated that the authenticity of e-mails as evidence cannot be denied, provided that they comply with the technological and technical requirements of Law No. 15 on Electronic Signatures of 2004. In 2020, in connection with the COVID-19 pandemic, on the basis of Resolution No. 361 of the Ministry of Communications and Information Technology, special Rules concerning the Law on Electronic Signatures and Establishment of the Information Technology Industry Development Authority (ITIDA) were published. The rules set forth the conditions when electronic documents are accepted by the court as evidence in civil, commercial and administrative cases. The provision on electronic communications is quite interesting; it discloses the cases when they are accepted as evidence, that is, the necessity of electronic signature of the originator of the document, issued by one of the companies with a valid ITIDA license. According to information on the official ITIDA website, currently four organizations have ITIDA licenses to carry out activities and provide services related to electronic signatures[256]. Moreover, the Rules contain new terms such as electronic seal (which means an electronic signature that allows to identify a legal entity and distinguish it from other legal entities); electronic timestamp (this is what is placed in an electronic document and takes the form of letters, numbers, symbols, signs, etc., which link this data to a specific time in order to prove the existence of an electronic document at a certain time)[257]. The Egyptian Government has approved many different electronic systems in various fields to improve and develop the services it provides to citizens. But despite this, the idea of creating e-justice has not yet been implemented due to serious problems related to the lack of necessary financing for equipping the Egyptian judicial system with technological infrastructure, lack of qualified personnel, and a backlog in the IT sector. The leader of digital justice on the African continent is South Africa In her article entitled Beautiful Dreams Become Reality in the Civil Process Nombulelo Queen Mabeka touches upon the issues of digital transformation of the civil process in South Africa. She notes that procedures that do not comply with modern realities and also to legislation are still maintained, for example, section 27 of the Electronic Communications and Transactions Act No. 25 of 2002, provisions of the Uniform Rules of the High Court and the Rules of Magistrate Courts. This may refer to the delivery of pleadings in person, despite electronic delivery, as well as delivery to the plaintiff of a notification of the defendant’s intention to defend himself (Mabeka, 2021). Nombulelo Queen Mabeka notes that the integrated CaseLines system does not contain provisions regarding measures to ensure the protection of personal information that is stored or distributed electronically in order to prevent illegal interception. South African courts have demonstrated that they support the use of technology in civil proceedings in cases such as CMC Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens and Spring Forest Trading 599 CC v Wilbery (Pty) Ltd, respectively. Initially, an electronic filing system existed in the High Court system, which is now called Court online. However, the COVID-19 pandemic has become an impetus for the expansion of electronic services in the justice system. On June 27, 2022, the Office of the Chief Justice issued a directive that all new cases, launched from July 18, 2022, should be initiated in the online court; thus the directive terminated electronic filing of applications to the court, electronic case management and electronic evidence in the High Court. Moreover, the Law on Electronic Communications and Transactions has established a new procedure for submitting documents to the court, now they must be signed with an electronic signature. An electronic signature is a tool to identify a person and confirm information. Thus, lawyers and parties to the litigation may use electronic signatures to sign court documents[258]. The task of creating the COURT ONLINE system is to increase the availability of judicial protection through the use of cloud technologies and via the Internet to apply to the court from anywhere in the world, as well as to carry out all necessary procedural actions to handle the case. The goals of COURT ONLINE include: reducing the time spent by those involved in court proceeding in the courthouse; minimizing the presentation of court documents on paper; implementing the principle of transparency in court proceedings; quick access to case materials. Ensuring the transparency of judicial proceedings through this system provides participants in the process with a full range of electronic services for the convenience of their defense, reducing the number of disputes related to exercising procedural rights by the parties. The advantage of this system is also connected with the removal of the problematic issue of proper notification of the parties, since information comes in real time to e-mail addresses confirmed by the parties, as well as via SMS messages to mobile phones. This system allows for rapid verification of documents, as well as obtaining extracts from the case materials. The use of the COURT ONLINE system is possible in the process of managing a court case, conducting divorce proceedings, making a decision in absentia, granting permission to appeal, resolving ordinary civil cases, in appeals in civil and criminal cases, and in a commercial court. The following components are characteristic of this system: access to the Front-End (FE) portal is carried out via the Internet from each computer or mobile device registered in the Court Online system; a workflow application that allows to carry out internal processes of handling a case in courts; a case management application that allows to complete the process of registering a case, receiving case numbers, further processing of cases at all its stages and real-time monitoring; hearing the case and drawing up court records; evidence management application; implementation of the court session and the decision on the case[259]. The publication on January 10, 2020 by Judge-President Mlambo of a practical directive on the full implementation of the COURT ONLINE evidence management application (CaseLines) turned out to be a landmark event. The Gauteng Branch of the High Court of Pretoria and Johannesburg has been integrating a digital case management and litigation system since January 27, 2020. Due to the complexity of the evidence process in South Africa, the Court Online: Evidence Management (CaseLines) system has given judges and lawyers the opportunity to efficiently and safely prepare, compare, edit, share and present evidence including documentary and video in a single online system. Court Online: Evidence Management (CaseLines) is a cloud based platform that can be accessed on any laptop or tablet with Internet access and an Internet browser. All evidence is securely stored in the online cloud, which allows the lawyer to easily and securely access the evidence. After the publication of Practical Directives by the Office of the Chief Judge on the possibility of holding court hearings online using videoconference or video communication, hearings are held mainly online. It should be noted that South Africa cannot be considered a country with digital justice, since despite the possibility of conducting legal proceedings in electronic format, the judge may decide that the participant needs to appear in court to give evidenceж the same applies to the form of the trial stage. A similar opinion is shared by scientists Nombulelo Queen Mabeka and Rushiella Songca, who emphasize that over the years, changes have been actively made to the procedural legislation of South Africa, however, the amendments do not sufficiently meet the modern development of technology. For example, Article 129 of the Law on National Credit establishes the requirement that the creditor must first send a notification to the party who did not fulfill the obligation at the last address known before the start of the trial. “Facebook, Instagram”[260], email and other digital methods are suggested, however, this method is completely outdated and does not correspond to modern methods of communication, so Nombulelo Queen Mabeka and Rushiella Songca suggest using “Facebook, Instagram”[261], email and other digital methods (Nombulelo Queen Mabeka & Rushiella Songca, 2021). South African courts recognize the use of electronic technologies and allow parties to go to court via “Facebook”[262], but this issue is not legally formalized. It is noted that digital technologies will require the country’s leadership to expand the Internet throughout the country, especially where the courts are located. Queen Mabuka and Rushiella Songca argue that technologies should be designed in such a way that any party can access information on the case, as well as track its progress. It is assumed that the system should include pop-up messages indicating the completion dates of various trials, and attention should also be paid to ensuring the security of electronic data by involving professional and accredited electronic service providers. In 2023, the Chief Justice published a practical directive for regional courts in South Africa in accordance with Articles 8(3), 8(5) of the Law on Higher Courts. The following changes were introduced: appearance and hearings in civil cases can be carried out through audio-visual links; the Chairman of the Magistrate court can determine which cases may and which may not be settled remotely, if the parties have agreed to this in writing; when submitting requests for hearing dates or when sending a notification to the Registrar or the Registrar's Assistant the parties shall express consent or disagreement to the use of any virtual platform or electronic (digital) hearing cases and (or) witness testimony remotely or audiovisually; a copy of any electronic correspondence, including attachments, between the parties may be recognized by the court as evidence[263]. Conclusion The active integration of digital technologies in the countries of the African continent has become possible as a result of partnership with the European Union, which is the leading investor in most of these countries (Frolova, 2020). Therefore, the support of innovation and promotion of digital assets are a prerequisite for implementing investment activities. The development of financial technologies has led to the emergence of mobile financial platforms such as M-Pesa, Momo, Orange and Airtel Money, which allow financial transactions within countries. Due to this, more than 500 African companies are involved in this process by providing technological innovations in the field of financial services. In fact, Africa accounts for 70% of the world’s electronic money, which is estimated at $1 trillion[264]. Digital technologies are swiftly getting into the material relations area, inflating it with innovative means of conducting business. However, due to the high rates of digital technologies development, its legal regulation is lagging behind, so the use of selected digital technologies causes unpredictable business flow and diverse law enforcement policies. It should be noted that the process of digitalization has not affected individual spheres of society, but has a global character, starting with education and ending with medicine. This step-by-step approach has already proved its effectiveness in some African countries: South Africa, Egypt, Nigeria, Algeria and others. Exploring the evolution of digital justice, African countries can be divided into two groups: the first group includes countries that started this process with higher courts, and the second group includes those that integrated technology into special courts, for example: economic (commercial) courts. Turning to China’s successful experience in creating digital justice, it should be noted that the country chose the second path. Specifically for the realization of this goal, Internet courts have been created; they apply various innovative technologies, including artificial intelligence, blockchain, and cloud technologies. Acts of the Supreme People’s Court of the People’s Republic of China, as well as, for example, the South Africa’s acts of the Chief Judge, play a special role in regulating emerging procedural relations. This allows to quickly resolve all disputable situations arising in the dispute resolution process and give the necessary interpretation to the current norms. New technologies are being used to compile procedural documents both in the activities of judges and the entire legal community.

About the authors

Ekaterina P. Rusakova

RUDN University; Vladivostok State University

Author for correspondence.
Email: rusakova-ep@rudn.ru
ORCID iD: 0000-0001-6488-0754
SPIN-code: 5995-0005
Scopus Author ID: 57192093101

Doctor of Legal Sciences, Associate Professor, Full Professor of the Department of Civil Law and Procedural Law and Private International Law, Law Institute, Peoples’ Friendship University of Russia (RUDN University); Leading Researcher, Vladivostok State University

6 Miklukho-Maklaya str., Moscow, 117198, Russia Federation; 41 Gogolya str., Vladivostok, Primorsky Territory, Far Eastern Federal District, 690014, Russian Federation

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