2022 JB Danquah Memorial Lectures (Ghana Academy of Arts and Sciences)
Digitalisation and the Future of the Ghana Legal System
Professor Richard Frimpong Oppong, FGA
Access to Justice in our Digital World
[Abridged Presentation Copy, Footnotes Omitted]
A. Preliminary Remarks
Mr. Chairman, President and Fellows of the Academy, ladies, and gentlemen, it is a distinct honour and privilege to have been invited to deliver this year’s JB Danquah Memorial Lectures – the 55th lectures in the series. I am deeply grateful to Fellows of the Academy for this honour. The topic of my lectures is digitalisation and the future of the Ghana legal system.
As a people, we have become accustomed to enjoying the ever-increasing benefits of our technologically mediated lives. In short, we live in a digital world, a place where engagement with digital devices, social media platforms, and online commercial transactions have become commonplace for many of us. Facebook, LinkedIn, Instagram, Twitter, YouTube, WhatsApp, to mention but a few, have all become essential fixtures in our lives. As a result, we have been forced to rapidly adapt our lifestyle and interaction to the dictates of digital technology. Indeed, sometimes, we do not interact with each other at all because of these technologies!
In these lectures, I argue that, like individuals, legal systems are not immune to the impact of digital technology or the digital world that it has created. I therefore argue that as the Ghana legal system approaches its sesquicentennial 150 years anniversary it should embrace digital technology to advance its functions and goals.
My three lectures proceed on the premise that digital technology has, and will continue to have, significant effects on the Ghana legal system in all its aspects. Digital technology holds great promise for the future of our legal system, but we must act and act quickly to realise this promise.
In this first lecture, I examine the access to justice deficit in Ghana. I argue for a broader conception of access to justice, explore the leveraging of digital technologies to create new pathways to justice in Ghana, and examine the risk of digital exclusion. I argue for restrictions on advertising of legal services to be removed. I also argue for substantial investment in justice-technologies (justice-tech) and explore ways in which the government, the Bar, and technology companies can work together and fund their development.
The second lecture will examine legal education and legal professional competence, based on the premise that digital technology can (and likely will) transform legal practice and education in a manner that has not been witnessed since the inception of the Ghana legal system. Specifically, I will examine the skills, knowledge, and competencies that legal education institutions must provide for students, in order to enable them to practice or work in a world that is increasingly marked by digitalisation. I also explore the potential of digital technology to transform the delivery of legal education in Ghana.
In the third and final lecture, I explore how digital technology challenges one of the principal functions of the Ghana legal system, namely, its regulatory function. I will argue that while the state has sought to address some of the existing challenges using various legislation and policies, there remain significant gaps to be addressed. While such gaps exist in many areas, time and space do not permit me to explore all those that are relevant. In particular, I will focus on consumer protection in the digital marketplace and new working methods organised through digital labour platforms such as Uber and Bolt. These two areas are characterised by asymmetric relationships in which there is often a weaker party, one of which the legal system’s regulatory powers should protect.
The value of a named lecture, as in the case of the JB Danquah Memorial Lectures, derives from the person it celebrates and its content. Thus, I would be remiss if I did not pause to reflect on JB Danquah and my present lectures. Dr JB Danquah lived in a world that was very different from the digital one that we currently inhabit. However, I would argue that aspects of Dr Danquah’s work and ideas intersect with our digital world. As a journalist who established the country’s first daily newspaper, West Africa Times (later, The Times of West Africa), Dr Danquah would have relished the explosion of and ease of access to information that digital technologies have unleashed upon us.
Furthermore, a striking feature of Dr Danquah’s social ideas was that, in the words of Twumasi, he was ‘not troubled by any notion of territorial sovereignty’. In his Obligation in Akan Society, he writes that ‘if all mankind were made by the Unknown God, God the Father, of one blood, then all men are all brothers, …and this extends the Akan idea of obligation towards all mankind’. Like Dr Danquah, the digital world we live in challenges traditional notions of territorial sovereignty in many respects. These lectures will demonstrate that while the digital world challenges the regulatory capacities of the state ,a quintessential component of territorial sovereignty , it also opens up opportunities, including opportunities for better administration of justice, which is another important function of the state.
Some of my predecessors on this august platform have been able to regale you with anecdotes about their personal encounters and associations with Dr JB Danquah. Unfortunately for me, because of my relative youth, I am unable to entertain you with even one anecdote, However, I will note that my association with the JB Danquah Memorial Lectures date back to 2001/2002. Then a student at the Ghana School of Law, I was a research assistant to Nana Dr SKB Asante, a Fellow of the Academy, for his penetrating lectures entitled: Reflections on the Constitution, Law and Development. Little did I know that in exactly 20 years from that date, I would likewise be delivering these Memorial Lectures!
I will now turn to my appointed topic for today: access to justice in our digital world.
Ghana suffers from a widely acknowledged problem with access to justice. There are financial, informational, infrastructural, and psychological barriers to accessing justice in Ghana. As a result, every year, millions of Ghanaians face profound and potentially life-changing issues without legal assistance. These issues include divorce, medical negligence, defective goods and services, parental and spousal neglect, debt collection, work-related problems, and rental evictions. With or without legal representation, people who make it to the courts in the hope of addressing these issues are saddled with delay, due to a significant backlog of cases. Accordingly, the legal remedy for their causes of action often only comes after years of litigation and expense. Indeed, our formal justice system does not appearto be designed to make things easy for the ordinary person faced with such issues: the complex language of the law, its procedural and behavioural protocols, the location of courts, and the prohibitive cost of legal representation all present barriers between judges, lawyers, and the ordinary person.
Historically, strategies to address this deficit in access to justice in Ghana have been focused on refining established court processes and increasing access to legal representation. Both are undoubtedly important. However, this lecture argues that meaningful access to justice requires more than access to courts and lawyers. This lecture argues that Ghana’s legal system must adopt a broader conception of access to justice, and leverage digital technologies to create new pathways to deliver justice in Ghana.
C. A Broader Conception of Access to Justice andGhanaian Law
Access to justice is a fundamental component of the rule of law. It has implications for interpersonal and commercial relations. At both national and international levels, the importance of access to justice has been recognised in various instruments to which Ghana is party. These instruments include the African Charter on Human and Peoples’ Rights. More recently, the United Nations Sustainable Development Goals recognise access to justice as essential to economic growth, human wellbeing, and development.
At home, Article 35(3) of the Constitution provides that ‘the State shall promote just and reasonable access by all citizens to public facilities and services in accordance with law’. This imposes an obligation on the state to ensure access to justice for all citizens. Furthermore, in respect of persons charged with criminal offences or instituting civil claims, the Constitution provides that they ‘shall be given a fair hearing within a reasonable time’.
The Supreme Court of Ghana has held that there are two sides to the concept of access to justice. In the words of Adinyira JSC, the first is the freedom to walk into the court and initiate a cause of action. The second is the ability to meaningfully and effectively participate in proceedings, i.e., the right to a fair trial in both civil and criminal trials. However, limiting the notion of access to justice to the courts and court processes is too narrowan approach. This narrow conception of access to justice is often informed by the view that the courts are the focal point of the justice system. It reflects the mistaken tendency to equate access to justice with access to legal services through the courts and lawyers. This lecture argues for a broader conception of access to justice, which not only encompasses access to the formal justice system, but also to all forms of legal services, including access to legal information and legal advice, advocacy, and representation.
Scholars have articulated the need for a broader conception of access to justice. As far back as 1982, Professor Galanter questioned what he conceptualised as the legal centralist model of access to justice. In his view:
Just as health is not found primarily in hospitals or knowledge in schools, so justice is not primarily to be found in official justice-dispensing institutions. People experience justice (and injustice) not only (or usually) in forums sponsored by the state but at the primary institutional locations of their activity, home, neighborhood, workplace, business deal and so on (including a variety of specialized remedial settings embedded in these locations).
Professor Susskind has argued that the concept of access to justice embraces four different elements, consisting of dispute resolution, dispute containment, dispute avoidance, and legal health promotion. According to him, access to justice should embrace a forum for the authoritative resolution of disputes; this would serve as a mechanism for nipping disputes in the bud as soon as they arise, instead of escalating them. It would also include mechanisms for preventing the occurrence of disputesand a way of helping people to take advantage of the benefitsand improvements that the law confers.
In Ghana, the need for a broader conception of access to justice is partly influenced by the fact that, despite the well-documentedbacklog of cases, only a few members of the public encounter the formal justice system. One 2019 survey noted that only one in 20 Ghanaians (i.e., 5%) of those interviewed had been in contact with the formal justice system during the previous year. Thus, Ghanaians appear to make minimal use of formal legal proceedings to resolve their justiciable problems. Indeed, it is trite to state that people do not need a court or lawyer for every legal problem that they encounter. However, justiciable problems that find their way into formal legal proceedings are often long-term problems, which tend to be difficult for people to resolve themselves. This suggests that legal needs in Ghana exist primarily outside the court system.
Furthermore, a broader conception of access to justice is essential to decongest our courts of cases that would otherwisenot arise, or which could be resolved outside the court system. In other words, a broader conception of access to justice would result in fewer disputes arising, let alone reaching the courts for resolution.
D. Technology and Access to Justice
There is a significant body of research to suggest that legal systems could and should harness digital technology to address their access to justice challenges. In Ghana, scholars and writers such as Maame Mensa-Bonsu, Ace Ankomah, and Nana Yaw Ntrakwah have hailed the potential for digital technologies to advance the administration of justice and improve access to justice. For example, commenting on the first case in Ghana in which WhatsApp was ordered as a means of substituted service, Maame Mensa-Bonsu believed the adoption of WhatsApp as a tool of the legal process to be an advantageous and welcome development. She saw it as a harbinger of cheaper, faster, and more widely accessible justice. She especially noted that the decision displayed the sort of judicial open-mindedness needed to allow the benefits of the technological age to improve thejudicial process.
The academic quest to infuse digital technologies into the administration of justice in Ghana has been matched with modest judicial reforms in the same direction. The High Court Civil Procedure Rules have been amended to allow for evidence to be taken via video link or by any other means. Also, a 2019 amendment allows a party to elect to be served with legal process or documents by electronic means, such as electronic email.
The use of video-link and the electronic service of legal process or documents is a significant advancement in Ghana. Traditionally, law, adjudication, and the legal system are associated with paper-based processes and brick and mortar courtrooms. The use of video-link and the service of legal process through electronic means substantiate the notion that access to justice need not depend on such physical locations or paper-based processes.
In addition to legislation, various initiatives aimed at leveraging technology in the delivery of justice in Ghana are worth highlighting. In one 2020 paper, Chief Justice Anin Yeboah chronicled some of these initiatives, including the e-Library project; the e-Judgment project, the Case Tracking System, and the e-Justice project.
The Covid-19 pandemic elicited a rude awakening to the importance of accelerating some of these initiatives, in order to forestall the justice system from eventually grinding to an abrupt halt. Indeed, the pandemic and the courts’ response to it demonstrate that certain aspects of the justice delivery process could be conducted effectively via electronic means, without the need for all parties to be physically present in a court building.
These legislative and policy initiatives are important uses of digital technology to advance access to justice in Ghana. These initiatives are delightful to see, especially if we recall the history of unsuccessful attempts to leverage technology in the Ghanaian judicial process. In Tsikata v Attorney-General, Justice Sophia Akuffo, a Fellow of the Academy, chronicled some of theseefforts of mid-seventies and eighties to apply technology and sound case management to our court processes.
Most of the current initiatives are still in a largely embryonic phase. However, one study by Banangman and others that focused on the Tamale metropolis provides compelling evidence that effective management of the e-justice system would improve the administration of justice.
To date, reflecting the narrow conception of access to justice,these efforts at leveraging technology have been primarily limited to formal judicial processes, namely, the courts. However, this lecture argues that it is not good enough, since the vision for expanding access to justice, as advanced in this lecture, cannot be fully realized without the complementary leveraging of digital technology to promote it.
Accordingly, I will now turn my focus to expanding the pathways to justice using digital technology.
E. Expanding Pathways to Justice Using Digital Technology
(1) Improving knowledge of legal rights and legal processes
One significant barrier faced by anyone attempting to resolve justice problems is the lack of knowledge about legal rights, the legal system, and the available resources to support individuals. Expanding the public’s knowledge base about legal rights and obligations and the legal system represents the starting point for improving access to justice. Such knowledge would help prevent disputes from arising in the first place, or at least ensure their early resolution if they arise. In addition, improved knowledge of legal rights and obligations would help people to own and manage their legal issues.
Towards this end, citizens must have access to information on the various state institutions through which their grievances may be addressed, depending on the nature of the grievance. The erroneous belief that the courts are the main avenues for dispute resolution should be corrected. In Ghana, the formal avenues for dispute resolution include the courts, quasi-judicial bodies, and administrative bodies. Aside from these, there are many other avenues of informal dispute resolution, including traditional authorities, churches, community leaders, and family heads.
To assist people effectively access these state and non-state institutions to address their grievances, there is a need for the rapid expansion of law centres and agencies that offer free legal information and advice to residents and citizens of Ghana.
Unfortunately, there are very few centres of this nature in Ghana. Also, the existing ones, such as the International Federation of Women Lawyers (FIDA-Ghana) and Legal Resources Centre (LRC) are mainly private initiatives. This contrasts sharply with the situation in other countries. In these countries, law centres or law clinics within law faculties, private foundations and organisations, and government-funded organizations provide online and face-to-face advice and legal information to the public about any legal issues that confront them. Two good examples are the UK’s Citizens Advice and Alberta, Canada’s LawCentral Alberta.
The Ghana government does provide legal aid to qualifying persons under the Legal Aid Commission Act, 2018. However, legal aid is narrowly conceived under the Act. This reflects the narrow conception of access to justice in Ghana. In essence, legal aid in Ghana focuses on representation and legal proceedings. Generally, legal aid in Ghana does not, or only modestly, extend to assisting the public with legal advice, or to providing legal information on matters that generally affect people on a day-to-day basis.
Indeed, the current approach to legal aid in Ghana is mainly reactive. Wallace-Bruce describes it as granting aid to ‘a person in trouble with the law’. He argued for legal aid to encompass education and other relevant information about the law, legal advice and assistance, and legal representation. In his words:
Finding out about the law is very important. One need not be charged with an offence or be party to proceedings before one should start to look for a legal solution to a problem. One is constantly reminded of the age-old adage: “prevention is better than cure”. Educating the public about the law and how to find it is, therefore, an important part of legal aid.
This lecture argues for a broader conception of legal aid in Ghana. Legal aid must go beyond state subsidisation of lawyers to assist people in the courts. It must extend to legal advice on matters that generally affect citizens daily. It must extend to the provision of legal information. Thus, anyone seeking advice or legal information on residential tenancies, debtor rights, employment rights, consumer rights, or family law situations, to mention but a few domains, should have access to a publicly funded, Web-based source or portal through which the relevant legal advice or information is readily available.
The provision of justice-related legal information that aims to inform people of the laws affecting their day-to-day affairs and individual rights, or how to exercise them, should form part of the core mission of the Legal Aid Commission.
One of the most effective and efficient means of providing the public with basic legal information is through the worldwide web. This is especially so in Ghana, a country in which there are few public libraries and even those that exist are unlikely to have much, if any, legal literature. Web-based legal information would give people the opportunity to better inform themselves about the legal system and their rights and obligations within it. It helps demystify the law and make the legal system more transparent.
However, to be effective, legal information must be geared towards specific and concrete day-to-day problems that people face. Abstract legal information will not suffice. For instance, traders need specific information on the laws that will allow them to ply their trade, what is and how to fulfil their tax obligations, and the specific government offices to be contacted for help in advancing their trade. An employee would be interested in finding out about the rights that the state affords him or her as an employee, how those rights relate to those provided for in their employment contract, and where and how to resolve disputes with an employer. The children and widow or widower of a deceased person may want to know how to access the money in a deceased relative’s bank account, their rights and entitlement to other assets of the deceased, and the requisite steps to realise those entitlements. For these and similarly situated individuals, it would not be enough to simply post legislation online, leaving it to them to identify what is relevant to their needs.
Regarding the courts, at the minimum, citizens should have reliable and current information about the activities and organisation of the existing judicial institutions. Citizens should also have access to legal information relating to the work of the courts. This information includes the rules of procedure, forms or pleading templates to guide litigants, instructional videos, and general explanation of the terms used in court documents. Such information would be especially beneficial to self-represented litigants. This is because, under Ghana’s adversarial judicial system, judges are neutral arbiters. Judges are under no legal obligation to educate litigants on their legal rights or the appropriate legal processes. In addition, our civil and criminal procedure rules are not specially tailored to self-represented litigants. A person representing him or herself in a Ghanaian court enjoys no specific procedural accommodations in Ghana law. A self-represented litigant must take the legal procedures as they are, with all their complexities and technicalities.
Citizens should have access to information on cases pending before the courts and a searchable database of court judgments. This database should be appropriately organised and updated with new judgments. In essence, there needs to be a one-stopwebsite or portal, aimed at assisting end-users by providing information on Ghana’s justice system, including explanatory material about the law, the courts, and the legal profession. Thus, the aims of e-justice should go beyond a paperless court.
Demystifying the judicial process is also essential. In this regard, I argue that the live Web-streaming of judicial proceedings of the Supreme Court should not be limited to politically sensitive cases, such as election petitions. If it is not possible to stream entire proceedings, at the minimum, everysignificant reasoned decision of the Supreme Court should be Web-streamed live, or video recorded and posted online. Citizens deserve to see their judges in action. After all, constitutionally, ‘justice emanates from the people’ in Ghana. Furthermore, the knowledge that judicial proceedings are subject to contemporaneous review in the court of public opinion could be a powerful restraint on the abuse of judicial power – it is one thing to read a court judgment and a totally different experience to see judges in action.
(2) Advertising legal services
It is essential to explore whether the restrictions imposed on advertising legal services in Ghana inhibit access to justice in our digital world. There is no gainsaying that significant restrictions are imposed on the capacity of lawyers to advertise legal services in Ghana. The solicitation of clients, as well as general advertising by lawyers and law firms, is banned. There is also an outright prohibition on using social media to advertise legal services. The law leaves a narrow aperture for lawyers and law firms to create websites where mainly biographical and contact information is displayed. It would therefore appear that under the current rules, the creation of blogs and use of live-chat features on such websites are not permissible. Lawyers are allowed to advertise in ‘a legal directory, legal journal or other legal publication’, but it is doubtful whether members of the general public in Ghana review legal journals or other legal publications.
These restrictions are often justified from the perspective of protecting the dignity of the profession, protecting consumers’ ability to choose counsel wisely, and even, in some instances, personal distaste for the idea of advertising lawyers. However, others have challenged the existing restrictions as anachronistic in this digital age, representing an unconstitutional limitation on the freedom of speech, and perpetuating economic inefficiency in the market for legal services.
This lecture does not engage with the merits of these arguments. Instead, I explore a less-discussed aspect of the restrictions on advertising legal services, namely, its implications for access to justice. I argue that access to justice is undermined by the current restrictions. The restrictions keep the public from being informed of the importance and availability of legal services. Moreover, the restrictions have constrained the development of some areas of Ghanaian law, especially personal injury law.
As I earlier discussed, a key starting point for improving access to justice in Ghana would be making information about legal rights and obligations publicly available. I argue that access to justice suffers where lawyers cannot directly or freely speak to the general public about the legal services that they provide, or the legal options that are available in response to problems confronting the general public. A member of the public who might not recognise a problem as a legal issue may come to that sober realisation through the advertising of legal services. The recognition that a lawyer is required to solve a particular problem is an important part of justice delivery. In that sense, advertising serves an educational function. Social and other digital media can be powerful channels for such outreach.
Restricting the advertising of legal services prevents people from finding affordable legal help easily to address the issues that they face. For some of these issues, people might not even be aware that a legal remedy exists. For example, thousands of Ghanaians die or are injured on our roads and suffer workplace injuries or medical negligence every year. Because of the sea accidents and oversights, families are often torn apart and forced to fend for themselves without a breadwinner. A cursory look at published court judgments would reveal that very few of these personal injury torts – legal wrongs – find their way to our courts for redress. By not proactively seeking out assistance for people in these situations through advertising, the legal system essentially asserts that people should suffer legal wrongs silently, rather than redressing these wrongs through legal action. This is especially so, given the low levels of public legal education in Ghana. It is likely that settlement is reached in a few cases, but it is equally possible that settlements take place outside the shadow of the law. Consequently, there is clearly an untapped market here, which lawyers and law firms must meet with sophisticated advertising to educate tort victims, potentiallyattracting them for legal redress.
The regulatory potential of personal injury law (and indeed tort law in general) to disincentivise the infliction of personal injury and negligent conduct (which have blighted so many lives in Ghana) has not been fully realised. The advertising of legal services, coupled with contingency fee arrangements that are currently allowed under Ghana law, could unleash motivated personal injury lawyers to secure justice for those who quietly suffer legal wrongs of this kind. The work of these lawyers and knowledge of the financial consequences of negligent conductare also likely to have a deterrent effect on negligent conduct in Ghana, while fostering greater accountability in dealings with our neighbours in law.
It may be instructive to look abroad as to the manner in which other legal systems deal with the advertising of legal services. In Bates v State Bar of Arizona, a 1977 decision, the United StatesSupreme Court declared as unconstitutional an Arizona Bar disciplinary rule, which prohibited advertisements concerning the availability and terms of routine legal services. Here, Justice Blackmun noted:
Although advertising might increase the use of the judicial machinery, we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action. As the bar acknowledges, the middle 70% of our population is not being reached or served adequately by the legal profession. Advertising is the traditional mechanism in a free-market economy for a supplier to inform a potential purchaser of the availability and terms of exchange. The [prohibition on advertising by attorneys] likely has served to burden access to legal services, particularly for the not-quite-poor and the unknowledgeable.
To be sure, in arguing for an expansion of access to justice through the advertising of legal services, I do not claim that every issue with a legal component should be resolved with a lawyer. I also do not claim that everyone should receive legal assistance when confronted with a legal problem; instead, my argument is that the public’s lack of understanding of their legal needs, and ignorance about the availability of legal remedies or opportunities for redress, should be remedied through advertising. The advertisement of legal services would improve the public’s knowledge of the legal options, thereby assistingthem in making informed decisions about their legal needs.
Like lawyers and law firms, the Ghana Bar Association (GBA) should also take advantage of advertising, using it to engage inpublic education campaigns about legal rights and avenues for seeking justice. It is, and should be, an important part of the work of the GBA to ensure that the Ghanaian public is sufficiently informed of the available legal services.
Removing most of the current restrictions on advertising would ensure that the public have access to a wide range of information and resources. Addressing this informational deficiency would help people to better understand the problems that they encounter; decide whether such problems raise legal issues; evaluate their legal options, and more easily access a lawyer to help them address those issues, whether in or out of court. As has been the case in other countries, I argue that the General Legal Council (GLC) and the GBA could do this without undermining the dignity of the profession or leaving consumers unprotected. It would be sufficient to regulate advertising that misleads the public or diminishes public confidence in the legal profession and administration of justice, and any solicitation that involves coercion, duress, or harassment.
Before I move away from this topic, I acknowledge that my analysis and recommendations relating to restrictions on advertising legal services may be somewhat controversial to put it mildly. Some may argue that while such restrictions may seem anachronistic to progressives, removing them in the Ghanaian context is not likely to unleash motivated personal injury lawyers to secure justice for those who quietly suffer legal wrongs. Instead, it is more likely to open the floodgates to legal imposters and sharp practitioners who pontificate as legal luminaries in areas of the law without any basis. Some argue that, currently, the restrictions on advertising legal services in the era of constitutional guarantees of freedom of speech have not been able to prevent a deluge of such persons on electronic media. Removing the restrictions on advertisement might well aggravate the situation.
These are legitimate concerns. However, I believe that within the framework proposed in this lecture, with sanctions from the GLC to weed out the few who abuse their trust and taking into account the comparative experiences of other countries, these excesses can be avoided. I believe that even when the restrictions on advertising are removed, most lawyers will behave as they always have. They will abide by their solemn oaths to uphold the integrity and honour of the legal profession and of the legal system. For every lawyer who misconduct themselves through advertising, there will be thousands of others who will be professional and honest and straightforward.
(3) Investment in justice-tech
There is a need for investment in technologies that are aimed at making justice more accessible to the public in Ghana. The government, the GBA, and technology companies have a responsibility to help develop digital solutions towards this end.
A significant development in some African countries, as well as in jurisdictions such as Canada, the UK and the USA, is the emergence of justice-tech companies. These are organisations with tech-driven products that are designed to help people who are impacted by the justice system. These organisations have developed apps, websites, and other digital tools to expand access to legal resources and representation. These tools havehelped people to undertake legal transactions, including the incorporation of companies, making wills, and drafting and execution of contracts. These tools have helped people to improve knowledge and understanding of their respective legal systems.
At present, a few Ghanaian companies are developing technologies relating to the justice system. These include DennisLaw and DataCenta. However, to date, their products have mainly focused on the legal commercial market, with the goal of enabling legal professionals to enhance and better manage their commercial legal service offering. The broader purpose of improving access to justice for the ordinary man in Ghana remains subsidiary. There are few exceptions, including Justice Locator and MarryRight, both developed by Dennis Law. Justice Locator is a mobile application designed to assist with ordinary access to justice in Ghana and help legal practitioners manage their court diaries with ease. MarryRight is a website to educate people on marriage in Ghana. It sets out the procedures for legally registering a marriage. It also assists prospective couples with accessing the relevant materials and institutions for marriage. The BOAME app is also worth mention. The appsupports survivors of domestic and gender-based violence to talk to relevant resource persons.
There are very few websites that provide the public with general legal information to advance access to justice. For example, websites such as the Ghana Legal Information Institute (GhaLII) are geared more toward legal professionals than the general public. Even on these sites, the information provided is arguably inadequate. The information is also sometimes burdened with legalese, to the extent that it is not readily accessible to the layperson.
Private capital is essential to justice-tech investments. However, private capital tends to focus on return on investment. Thus, private capital is more commercially minded; it less focussed on access to justice. As a result, the broader public good of advancing access to justice may be insufficient to spur on investment.
Accordingly, direct government investment in justice-technology is necessary. This lecture advocates establishing a single or unified national legal portal with a supporting app,providing access to Ghanaian laws, judicial decisions, and relevant information on access to justice. Funding for this national portal in Ghana should come from the government and the GBA.
I argue that a potential source of funding for such investments could be the interest that accrues on funds that clients deposit with lawyers when lawyers are providing them with legal services. At present, the interest that accrues on such funds is not legally regulated. The lawyer and the client are free to decide on what happens to it. Depending on the account the funds are deposited in, banks also get sizeable sums of interest-free loans when lawyers deposit client funds.
In other countries, the interest that accrues on such clients’ funds has been used to advance various objectives, including access to justice. In the USA, the Interest on Lawyers’ Trust Accounts (IOLTA) programmes currently operate in all the 50 states. Under the programmes, banks forward interest on client funds in lawyers’ trust accounts to the state programmes, which use the money to fund various charitable causes. These causes include state-based legal information Websites, legal assistance hotlines, young lawyer special public service projects, court-appointed special advocates, and law school scholarship. The American Bar Association Commission on programmes oversees theiroperation in the various states. In Brown v Legal Foundation of Washington, the US Supreme Court noted the dramatic success of the programmes in serving the compelling interest ofproviding legal services to millions of needy Americans.
In British Columbia, Canada, the interest paid by a financial institution on funds held in a lawyers’ trust account is paid to the Law Foundation of British Columbia (LFBC). Law firms are required to instruct their banks to remit those funds directly to the LFBC. The LFBC, a non-governmental organisation created by legislation, uses the funds received for initiatives such as legal research, legal aid, law reform and scholarship. Indeed, my doctoral studies at the University of British Columbia was partly funded with an LFBC scholarship. Similar programmes operate in the other nine Canadian provinces and three territories and countries such as Australia, New Zealand, and South Africa.
In addition to financial investments, creating a favourable regulatory environment for justice-tech start-ups to operate is crucial. Although not focused solely on justice-tech start-ups, the proposed Ghana Start-Up and Innovation Bill, 2021 is welcome. This largely private sector driven Bill aims to set up an incentive framework for the creation and development of start-ups in Ghana, in order to promote creativity, innovation, and the use of new technologies to achieve strong added value and competitiveness at international, regional, and national levels. The Act also seeks to provide legal backing for the introduction and promotion of start-ups for jobs and wealth creation.
Given the levels of education and literacy in Ghana, I should emphasise that investments in justice-tech applications and Web-based legal information should not be limited solely to the English language. There must be concerted efforts to develop apps that are inclusive in all respects. That is apps that areaccessible to all, including the illiterate and persons with disabilities. As far back as 1976, Professor FT Sai noted in his JB Danquah Memorial Lectures that ‘technology should be concerned about all the people’.
This lecture’s emphasis on digital technologies should not be construed as denigrating or diminishing the importance of time-tested methods of improving access to justice. These includeradio and television shows, newspaper columns, and well-resourced public libraries that stock law materials, or academic law libraries. For example, generations of Ghanaians benefited from the long running ‘Mirror Lawyer’ column in The Mirror,and Radio Lawyer on GBC Radio. Regrettably, Ghana does not have a National Public Library. Furthermore, of the existing public libraries, only the George Padmore Research Library in Accra has a sizeable number of materials that can provide legal information in its collection. We must continue to invest in these time-tested methods of improving access to justice. Digital technologies could amplify the reach of these traditional methods and facilitate access to the legal information that they provide.
(4) Risks of digital technologies
Admittedly, although digital technologies can advance access to justice, digitisation of the means of accessing justice is accompanied by various risks, which should be articulated and guarded against. In deploying technology in the courts and civil procedures, the focus tends to be on the gains in efficiency and effectiveness that flow from this deployment. Very often, the socio-political and cultural implications of relying on digital technologies are not clearly articulated. Similarly, while digital technologies can make legal information and advice more accessible, they can also create a gulf between the ‘haves’ and ‘have-nots’.
There is a real risk of excluding the digitally illiterate and digitally under-resourced, including those who do not have access to relevant facilities such as the Internet. This risk derives from a broader recognition that the socio-economic factors affecting citizens also affect their respective ability to benefit from initiatives designed to improve access to justice. Without attention to these socio-economic factors, there is the distinct possibility that access to justice initiatives can entrench existing disparities in the process of delivering justice.
Citizens can only make effective use of the digital technologies that are deployed to facilitate access to justice if they have digital access (i.e., access to a functional Internet connection) and digital literacy (i.e., the ability to use the Internet). Conversely, if someone is not digitally literate, does not have access to a digital device, or has a poor Internet connection, the promise of greater access to justice through digital technologies will remain an illusion. Antwi Frimpong has noted that for technological innovations to be effectively and adequately diffused into the Ghana legal system to enhance access to justice, the general population need to be initially motivated to use such innovations. Further, the population need to have the means of accessing them, if they so choose, know how to use them, and, use them to address their need for access to justice.
The challenge of being digitally under-resourced is not limited to individuals, although the discussion tends to focus on them. Digitally under-resourced law firms may similarly struggle to meet people’s need for access to justice in a digitalised environment. For example, some law firms may be unable to bear the necessary cost of designing, implementing, and maintaining the relevant interfaces, databases, applications, and security protocols. Without the necessary financial resources there may be minimal uptake of digital technologies introducedto our justice delivery systems.
Given these challenges, there is a definite need to avoid a situation where digital expansion and a digital way of doing things become the norm in Ghana, without supplementary paper-based or face-to-face engagement. Indeed, it should always be recognised that there are certain segments of society for whom digital means are not appropriate. In the discerning words of Professor Roger Smith, we need to consider that ‘there will be a percentage of every population in every country which will not be able to take advantage of digital means of communication and, for them, there need to be alternatives’.
Mr. Chairman, President and Fellows of the Academy, ladies, and gentlemen, this lecture has advocated an expanded vision of access to justice in Ghana. I have argued that we should seeaccess to justice as something broader than access to courts and lawyers. In fact, access to justice should encompass access to the justice system and all forms of legal services, including access to legal information and legal advice, advocacy, and representation.
To realise the benefits of this wider vision of access to justice, the message of this lecture has been a simple one: the Ghana legal system should embrace digital technologies that can help it provide better justice to Ghanaians. The use of digital technology to overcome social ills has been well documentedand Ghana is not alien to this. The expansion of financial inclusion through digital technologies demonstrates the potential for such technologies to transform or enhance access to justice. In Ghana, many people have been able to participate in the financial system through mobile electronic wallets, which store money and enable electronic money transfers. This lecture calls us to reflect on whether something similar could be achieved regarding access to justice.
This lecture calls on the GLC, GBA and Minister of Justice to jointly work and commission a study on access to justice in Ghana. The commission should, among others, examine the use of digital technologies to enhance access to justice. The commission should also consider the prospect of adopting aninterest on lawyers’ trust account scheme to fund access to justice initiatives in Ghana.
The GBA and GLC should revisit the current restrictions on advertising of legal services with a view to adopting a regime that better mediates the interests of access to justice, protecting the integrity of the legal profession, and preventing abuse of clients.
Finally, this lecture calls for a national legal technology vision to complement the government’s drive to develop a digital economy. The realisation of this vision will demand close collaboration between the government, GLC and GBA and legal technology companies.
In the second lecture, I will turn my attention to legal education and how we should train law students for our digital world.