By Abduljabar I. Hussein:
Parties without advocates used to be the only litigants in courts all over the world in medieval times. But in those happy times, there was not a single lawyer to be found on the globe. Those involved in litigations or accused of crimes represented themselves. The plaintiff stood and stated a case, and a defendant gave a reply. In those times a courts of law were not bound by a strict technicalities of the law codes but according to what a judge considered right, fair and just.
The surge in pro se litigation , particularly in family division including Kadhis’ court, has increased tremendously with the Annual State of the Judiciary and Administration of Justice Report (SoJAR) indicating that the number of cases coming to the Magistrates and Kadhis’ Court across the country has increased enormously.
Multiple causes are responsible for this trend, including increased literacy, citizenry faith in the system, the cost of litigation and advocates’ fees, anti-lawyers sentiment, and the breakdown of family and religious institutions that are formerly resolved many disputes that are now presented before the courts instead.
Pro se litigants are a fact of life, and courts across the country are struggling with the perceived problems they present to judicial officers and the legal profession.
Proceeding with pro se litigants are very hard and difficult to control and tend to take longer and be more emotional. It’s also difficult to shape the issues without acting as an advocate for either side and risk losing impartiality.
Given the importance of having the evidence necessary to make an informed determination in highly contested cases, litigants should be caution by courts that it is not in their best interest to proceed pro se.
Where a party is unable to afford the service of the counsel and appears pro se, the trial court should take whatever measures may be reasonable and necessary to ensure a fair trial. In addition the court should make appropriate referral for pro bono legal services i.e. FIDA, Kituo Cha Sheria, law school’s clinical programs etc
Most pro se litigants will be satisfied with the result of trial if the judicial officer is courteous, appears to take their cause seriously, and will take time to explain the reasons for the ruling or the judgment.
In a democratic dispensation, embedded faith of the citizenry in the justice system is of seminal and pivotal concerns and it’s the faith and faith alone that keeps wheels of justice running. Access to speedy justice is regarded as a human right in which is deeply rooted in the foundational concept of natural justice. This right can be fully ripened by the mandatory commitment of all stakeholders in justice system particularly courts.
In order to enhance access to justice for pro se litigants, the courts should explore the implementation of ‘family court pro se projects’ that can help pro se litigants in less complex trial proceedings (e.g., parties recording consent as to the parental responsibility). These pro se programs distribute brochures, provide information encourage party participation in educational clinics, or facilitate access to agencies providing pro bono service. Court should also train court staff to provide basic legal information to the public regarding the elements of common causes of action, defenses and such procedural requirements regarding service of process and execution of judgment.
In addition, the court should endeavor to conduct pre trial conferences pursuant to Order 11 of the civil procedure act, they should be utilized liberally in pro se cases for several reasons. They provide an opportunity – in absence of any pro se assistance program – for the court to review the pleadings to determine their sufficiency, to narrow the issues, to provide instruction to the litigants regarding procedure for evidence gathering for submission of evidence at trial among others.
The rules of procedure and evidence should be relaxed in cases involving pro se litigants, In Austin v Ellis, the New Hampshire Supreme Court, in a general-jurisdiction civil case, commended a trial judge for his conduct in relaxing the rules of evidence and making “a special effort to facilitate the (pro se) plaintiff’s presentation of his case. In another non-small claim’s case, the same court interpreted two rules, one that affords a judge discretion to allow a late filing of a defense “for good cause shown” and another that provides that ” as good cause appears and as justice may require, the court may waive the application of any rule…..”
Here, is tips, for judicial officer, on how to remain sane in pro se proceedings, as provided by Honourable Justice T. Warren;
- Keep absolute control of the structure of the trial.
- Require that all testimony be directed to you. Be careful to let people parties state everything that they want to present, but prohibit interruption of their opponent’s testimony or presentation.
- Question parties and witnesses, after their presentation. By doing it, you will be guiding the proceeding to the important issues and obviate the inevitable effort to talk endlessly about facts or incidents which are not necessary to deciding the questions before the court.
These cases enunciate principles that should be applied in family law and to afford unrepresented litigants meaningful access to justice, the role of judicial officers must be broadened.
The writer is a lawyer and a regular contributor of Nep Journal