The importance of digitisation and the Internet for social and human development cannot be ignored.
The digitisation of government and private sector services, including judicial services, is increasingly considered a key ingredient for modernisation of public and private sector processes and crucial for enhancing efficiency in service delivery.
Indeed, it is now widely accepted digitisation is crucial for the realisation of the goal of agile government processes that are expeditious, efficient, flexible, and responsive.
Our judiciaries in the region are testimony to this. In the wake of the Covid pandemic, courts embraced virtual courts, e-filling, and electronic case management systems resulting in improved efficiencies and cost-effectiveness of the justice system.
Across various sectors of the society and economy, we have witnessed the integration of the Internet, software, social media platforms, algorithms, and digital devices into our lives and decision-making in the public and private sectors.
What this means is, that in the near future, many private and public agencies look set to transition to being fully digital or partly digital in their operations.
Even as we celebrate the advances in social and human development linked to the embrace of digital technologies, we must acknowledge the reality that digital technologies and the Internet also have a ‘dark face or dark side’ as they carry with them significant risks.
It has become increasingly apparent that in politics, social media has at times been used to divide societies and polarise political systems.
This has been a function of the deployment of hate speech, incitement to violence, fake news, and disinformation through social media platforms.
Related to this, is the abuse of digital technologies and the Internet for abuse of children, who are a vulnerable group in society.
This often takes the form of child pornography and child trafficking. In such a context, the governance of this brave new world becomes crucial.
We should approach the “digital world” as a global common or public good (i.e. essentially, a common or shared commodity, asset, or resource).
Under such a conception of the “digital world”, we would see the problems associated with digitisation and the Internet; such as cybercrimes, misinformation, political propaganda, incitement to violence, the propagation of hate speech, and as a tool for the exploitation of vulnerable groups as ‘pollution of our common/ shared resources’.
This makes it necessary to regulate the development and use of digital technologies and the Internet just in the same manner as that adopted in tackling the problem of “polluters of the environment” which is also a shared common resource.
This approach to the “digital world” resonates with the influential and widely known concept of “The Tragedy of the Commons” that was popularised by Garrett Hardin whose import is that ungoverned consumption or exploitation of a shared resource (such as pasture) by individuals seeking to maximise their gain often has the consequence of running or destroying the common resource.
In such a context, the governance of the “digital world” requires that we embrace governance mechanisms that are democratic, participatory, deliberative, and inclusive.
This involves embracing stakeholder involvement in designing the governance frameworks.
The aim should be to ensure the Internet is a digital common that is used in a way that fosters respect for human rights, and social justice, and promotes transparency and accountability in governance and the society.
The Judiciary becomes crucial in enforcing human rights standards and participatory norms in disputes regarding the justification, legality, and proportionality of state measures geared towards regulating the “digital world” such as “Internet shutdowns”.
Judicial intervention in disputes over the governance of the digital world in such circumstances is geared towards promoting human rights, social justice, and the imperative of public participation and input in governance.
It is such an approach that ensures that the governance of the “digital world” is geared toward promoting the common good and producing public benefits. —The writer is Chief Justice and President of the Supreme Court of Kenya —@CJMarthaKoome
