New instructions by the President of the Supreme Court governing virtual hearings came into force on October 31, the date of their publication in the Official Gazette. They provide for procedural rules applicable to trial proceedings that occur when the parties, advocates, state attorneys, prosecutors, witnesses, and the public, are appearing remotely. ALSO READ: Kagame commends ICT-backed justice delivery during Covid-19 According to the instructions, virtual hearings are allowed in all courts, all matters, and in all court proceedings, and the precise method and type of video-conferencing in which a particular virtual hearing will be conducted remains within the discretion of the court. Here are 10 key things to know about the new instructions: 1. Determination of virtual hearings According to the new instructions, a court hearing can be totally virtual or semi-virtual. Semi-virtual hearings and trials occur when courthouse facilities are in use, but one of the parties, part of a party, all parties, witnesses, or a part of them, are appearing remotely. The determination of whether the court hearing of a case will be held virtually or semi-virtually shall be at the discretion of the president of the court responsible for trying a given case. However, if the virtual hearing has not been determined, a party may request it by written application to the president of the court and reserve a copy to all the parties to the dispute. ALSO READ: Judiciary embraces Skype to deliver court rulings The same procedure shall be followed if any party wishes to request a face-to-face hearing once the virtual hearing has been determined by the court. Such an application shall contain pleas and the clear justification of the applicant, justifying his or her application. The president of the court takes an administrative decision to accept the virtual hearing request or deny the application within 48 hours of receiving the application. 2. Schedule of virtual hearings If the hearings are to be conducted virtually or semi-virtually, the court registrar shall announce this decision on the case list that is on the website of the Judiciary of Rwanda, in addition to the notification of the parties through the electronic case management system in use. The court shall provide on that website the cases to be heard virtually or semi-virtually, scheduled times, and which video-conferencing method shall be used for each virtual hearing. All pertinent information and instructions for using the video-conferencing method selected for each virtual hearing shall be provided well in advance of the hearing by the court registry. 3. Required conditions in hearing rooms All parties participating in a virtual hearing, particularly the state attorneys, prosecutors, advocates, and any self-representing party, shall in advance of the call ensure that the room they call in from meets required conditions. The decor should be neutral, and the setting should be appropriate for a hearing. All lawyers, prosecutors and the state attorneys who participate in a virtual proceeding must ensure that they appear from a private space, free from distractions, such as people or pets who may wander into the room. This provision also applies to self-representing parties. Vehicles, vessels and airplanes are strictly prohibited to be used as hearing rooms. All participants, including parties, state attorneys, prosecutors, advocates, and witnesses, are responsible for ensuring that their appropriate electronic gadgets and their network connectivity will be adequate for the hearing in advance of the hearing. ALSO READ: Lawyers welcome integrated electronic case management Any litigant or advocate who lies or otherwise claims to have technology problems in bad faith may be liable to a civil fine for delaying tactics provided for in Article 18 of the law of April 29, 2018, relating to the civil, commercial, labour and administrative procedure. The law provides that any party (litigant) who intentionally delays the hearing of a case or avails him or herself of remedies as a delaying tactic in a case is liable to a civil fine of not less than Rwf20,000 and not more than Rwf200,000. If the intentional delaying of the hearing is caused by a counsel or any other representative of the party, such counsel or representative is liable to a civil fine of not less than Rwf200,000 and not more than Rwf500,000. 4. Witness examination and protection Any party who intends to bring witnesses must communicate this to the court in advance. A witness should not have anyone else physically present with him or her during his or her testimony, except when the presiding judge has otherwise ordered. Witnesses need not be at the same location as parties and advocates. The videoconferencing system or other platform used by the witness shall allow enough visibility to see the witness and to verify that no unauthorised person is present with him or her in the room. The witness shall be visible to the party or counsel and the party or counsel shall be visible to the witness during the direct examination, cross-examination, and re-examination. However, without prejudice to the provision of witness protection services, a protected witness shall give his or her testimony in a secure location, with their name and voice anonymised, and their camera turned off. Judges, advocates and criminal defendants shall be authorised to see and hear unscrambled testimony of protected witnesses, but they must be anonymised from all others, including the general public. 5. Public access to virtual hearings Except when a virtual proceeding has been ordered to be held in camera, proceedings shall be held in a manner accessible to the public virtually. When the virtual hearing is public, methods for making it accessible online to the public will depend on the videoconferencing method chosen. The court registrar shall post a videoconferencing link for the virtual hearing on the website of the Judiciary through which the public will be able to access it. When the hearing is held virtually and the available video conferencing method necessitates email, account name, or other required information to receive access, any person who has a desire to attend the virtual hearing, must send all required information to the court registry of the concerned court at least 12 hours prior to the hearing. 6. Virtual hearing conducted in camera In case a virtual hearing in camera is decided by the court or whether it is ordered by the law, new credentials or a new link for joining the remote hearing shall be provided by the panel to allow the hearing to continue without access to the excluded persons. Without prejudice to the provisions of other laws, in the case of virtual hearing in camera, parties, advocates, witnesses when deposing their testimony, and any other authorised person by the panel, shall be careful of at least the following: Ensure that they are in a private room with closed doors; Not allow other people to attend the closed virtual hearing; Not to share the link or the credentials received to attend or participate in a closed virtual hearing; And the videoconferencing system or other platform used must allow enough visibility to see and verify that no unauthorized person is present with him or her. If it is only a part of the virtual hearing that shall be held in camera, the panel may need to determine how to temporarily remove and later restore virtual access for certain persons. 7. Connectivity downtime during a virtual hearing A speaker who has temporarily lost connection to the videoconferencing application or other virtual hearing platform, must promptly notify the court of his or her issue, either through alternate means on the videoconferencing application, by intervention of another participant or by another available method set by the court, so that the court can take adequate measures to resolve the issue. These measures can include calling a recess to allow a participant to resolve their technology issue, or, if the issue is on the side of the court, involving information and communications technology staff to troubleshoot the issue. If the issue cannot be resolved, the panel can determine whether the hearing shall be postponed. The court registrar or other staff who is managing the videoconference shall be watchful to ensure the continuing connectivity of all participants to the hearing. 8. Recording and taking photos Unless authorised by the court, it is strictly prohibited to record the session, take photos or screenshots of the session, publish, or broadcast a virtual court proceeding. 9. Verification of the contents of virtual hearing minutes Virtual hearings shall be recorded and transcribed by the court registrar. The minutes of a virtual hearing shall be made available on the same day it is held to the parties through the electronic case management system in use. The parties and witnesses must verify whether the content of the hearing minutes corresponds to their statements in court; any objections should be submitted to the court for correction, through the electronic case management system in use, within 12 hours of their availability in the casefile. 10. Announcement of pronouncement After the closing of the hearing, the presiding judge shall inform the parties of the date and time, venue, and manner of the pronouncement of judgment. If the pronouncement will be held virtually, the presiding judge must inform the parties and the public of the website where they will find a videoconferencing link and other relevant information for everyone who wants to attend the pronouncement.
