Examining the workability of virtual trial in Nigeria 

For two years now, since February 2020, countries around the world, have been forced to impose varying forms of lockdown in their major cities to contain the spread of COVID-19 pandemic. Government’s ban on public gatherings and travels resulted in suspension of court sittings for the greater part of 2020, except for hearings of cases that were considered urgent, essential or time-bound. Of course, this led to difficulty in accessing justice, delay in the administration of justice and non-compliance with filing timelines.

The massive upheaval caused by the pandemic in litigation processes highlighted the global need for the development of an effective remote justice system with the aid of technology. Nigeria has not been left behind in this trend as innovations as courts at all levels have started holding remote proceedings as a way to continue their work amid Coronavirus pandemic. Nearly every jurisdiction is encouraging or requiring judges to hold certain proceedings remotely.

As a way of encouraging the justice system, the Chief Justice of Nigeria (CJN), Ibrahim Tanko Muhammad, commissioned a digital courtroom for Federal High Court, urging all courts to cue in for effective justice delivery.

It was done as part of efforts to institutionalise a technology-driven justice judiciary in Nigeria.

The digital courtroom, according to the CJN, was one of the nine pilot projects initiated by the National Judicial Council (NJC) to move from paper-based to electronic-based, as well as standardise courtroom infrastructure nationwide, by integrating technology into court processes and procedures.

Represented by the chairman, Judiciary Information Technology Committee of the NJC and Chief Judge of Borno State, Justice Kashim Zannah, the CJN urged all high courts (states and federal) to employ the use of digital technologies for efficient and effective justice delivery.

“The commissioning was part of the week-long activities marking the beginning of the Federal High Court’s 2021/2022 legal year,” said the CJN.

He had explained that the idea to digitise the justice system precedes the COVID-19 era and enjoined all lawyers to acquire the legal mail, @nigerianbar.ng, adding that courts should mandate it as necessary for e-filing and e-service of court processes.

Other significant features of the digital courtroom are professional audio and video recording software solutions that record from any type of source and enable full integration with the audio system and court intranet.

More importantly, the digital courtroom captures all activities in the courtroom with capacity for playback and direct reference to being recorded by court officers, while it is protected by word-class firewalls and security systems to avoid unwarranted access, among others.

While the Chief Judge of the Federal High Court, Justice John Tsoho at the launch resolved to enhance effective administration of justice with the use of virtual courtroom, he emphasised the significance of virtual trial in today’s justice administration.

He said several practice directions were issued to ensure seamless and robust administration of justice in the heat of the COVID-19 pandemic.

The Attorney-General of the Federation (AGF) and the Minister of Justice, Abubakar Malami (SAN), also launched pilot virtual courtrooms in Kuje Correctional Centre to aid its decongestion last year.

According to the minister, the project will help accelerate access to justice and facilitate cells decongestion.

While the intention and purpose for adoption of virtual facilities may be genuine, there are concerns among stakeholders on its feasibility. Lawyers differ on the workability and feasibility of the virtual trial in Nigeria at the moment.

A lawyer, Isaac Attah Ogeze, explained that the word virtual meant that something exists by the use of computer software.

Talking about the legality of virtual trials, he said: “Our apex court has held very commendably that virtual trials are not in violation of the Evidence Act 2011. If through the use of Skype and zooming technology, meetings and interviews are held, thus, blurring national boundaries and time zones, it will be anachronistic, retrogressive and anti-productive not to applaud this innovation.

“With the unbelievable growth of computer and mobile phone technology, and also given Nigerians’ quixotic acclimatisation, virtual trials are workable as this will help to nip in the bud, the usual excuse of a witness based abroad or unable to obtain a visa to appear physically for a trial.”

The lawyer, however, said the nod by the apex court was not all as there were challenges that needed to be overcome for proper operationalisation of virtual trial.

He pointed out that glitches can mar the process, especially, mundane issues such as erratic nature of power supply in the country. If there is no alternative to this, he said, a trial could be stopped midway when there is a power outage.

Another factor, according to the lawyer, is the capital-intensive nature of virtual trials. He said, our courts need to have top-notch Skype and zooming facilities on ground.

Ogeze also said practising lawyers would need to have the technical know-how, as well as, financial wherewithal to be able to partake fully in virtual trials, because there are instances where lawyers might have to conduct their cases from the comfort of their offices.

He further explained that litigants must be educated on the workings of the system, considering that there might be peculiar circumstances where interpretation would be required. To him, if these challenges are surmounted, virtual trials will be a delight in Nigeria.

Another lawyer, and an expert in comparative constitutional law and legal research methodology in the department of public law, University of Ilorin, Associate Professor, Abdulfatai Sambo, said virtual court trial has many benefits such as correctional service decongestion, quick dispensation of justice, and lots more. He, however, raised concerns as to whether the present legal and constitutional framework supports the use of virtual court sitting in the country.

Sambo said: “Our system of administration of justice is premised on the physical presence of the defendants. This is usually required in areas of plea-taking and throughout the trial.”

According to him, the judge also needs to watch the demeanour of the witnesses to form an impression about them, particularly, during the examination and cross-examination.

There is also the concern of publicity of criminal trials as required under S.36 (3) of the Constitution. Although virtual trials can arguably be considered as being in the public dormain, these concerns are legitimate and many courts are skeptical about using virtual proceedings throughout the trial. It may be regarded as an effort in futility.

He stated that many courts and correctional services in Nigeria are not equipped with facilities that would aid virtual court sittings.

“Some courts do shift in sittings due to inadequate courtrooms. Virtual court trials are possible to achieve. However, there has to be an enabling legal framework and adequate equipment,” Sambo said.

He suggested that all stakeholders in the criminal justice sector should be ready to cooperate to make it work for efficient and quick dispensation of justice in today’s world.

For Dr. Mubarak Adekilekun, Head of Department of Business Law, Faculty of Law, University of Ilorin, virtual court sitting is important to the administration of justice.

According to the academic don, if the system is in place, its gains are enormous. The university don pointed out that before the outbreak of the global health emergency caused by the Coronavirus pandemic, the administration of justice in Africa was faced with challenges such as infrastructure inadequacies, dilapidated facilities, corruption, the backlog of cases, lack of judicial independence, lack of judicial courage, poor budgetary allocations and lack of information technology (IT) skills, especially on the part of judiciary staff, among others, which slowed down justice delivery.

According to him, overcoming the above-mentioned problems was becoming an insurmountable challenge. He said there had been global efforts to design a sustainable solution to the lack of access to justice triggered by the pandemic.

Central to these efforts, he said, was the decision of some African countries like Kenya, Nigeria and Uganda to adopt the virtual court proceedings.

The effort, the lawyer said, would cover the filing of court processes, issuing of hearing notices, virtual court sittings, delivery of rulings and judgments.

He, however, said inconsistencies in the legal framework, dilapidated as well as inadequate infrastructure, poor power supply, Internet facilities and other necessary information technology equipment in some courts in many African countries would hinder the legal and judicial institutions’ efforts at effectively using remote court proceedings.

Although, access to justice and the rule of law are some of the goals and priority areas of the African Union Agenda 2063, access to justice in most African countries, he noted, is below desired standards.

“The current COVID-19 pandemic threatens to sink this standard even lower. Technology presents an opportunity to surmount this challenge through virtual and remote court hearings. With this solution, however, comes with its own set of challenges that must be overcome if the goods promised are ever to be delivered. African countries generally battle with access to justice; this is even more pronounced in the criminal justice system,” he said.

Specifically, in Nigeria, he noted that 72.5 per cent of detainees in prisons (not inclusive of those held in police cells) are awaiting trial. The situation in Kenya and South Africa, he said, better, but still nothing to write home about with 48 per cent and 29.3 per cent of their respective detainees also currently awaiting trial.

“Civil cases suffer similar fate across most African states, with Kenya recording a backlog of 549, 556 cases as of June 2018.

“The sweeping effects of the physical distancing measure are unavoidably felt in the administration of justice arena. Courts are unable to conduct business as usual in typically small courtrooms where people are seated in close proximity,” he said.

The lawyer pointed out that it is in reaction to this development, the National Judicial Commission, at its 91ST meeting held on April 22, 2020 set up a committee headed by Hon. Justice Olabode Rhodes-Vivour JSC, CFR to come up with guidelines for virtual court sittings during the COVID-19 pandemic. The committee submitted its report on May 6, 2020 and the NJC consequently released the same as its guidelines and urged the heads of both federal and state courts to be guided by the same in the formulation of their rules, directives and guidelines.

In NJC guidelines, according to the lawyer, physical sittings in courtrooms are to be avoided as much as possible and thereby limited to time-bound, extremely urgent, essential and contentious matters requiring calling of evidence that may not be held by the court remotely.

He said to facilitate online court sittings, the responsibility of providing fast and reliable Internet, end-user hardware (desktops, laptops, tablets etc), collaborative platforms (Microsoft Teams, Zoom, Google Meetings etc) and reliable electricity for the duration of the sitting is placed on the courts.

“Litigants and their counsel shall however be responsible for the provision of their own gadgets to join and participate in remote court sittings,” he said.

On the constitutionality or otherwise of the virtual court proceedings, he said it was recently adopted by all the courts in Nigeria. This, he said, is intended to find whether it is right for courts in Nigeria to resort to the virtual court hearing, instead of the usual courtroom practice. Section 36 (3) and (4) of the 1999 Constitution state as follows: ‘‘The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal shall be held in public.”

“Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn be entitled to a fair hearing in public within a reasonable time by a court or tribunal.’’

He said the Supreme Court of Nigeria affirmed the constitutionality of virtual hearings in the case of Attorney General of Lagos State v. Attorney General of the Federation & Anor. The question for the determination of the court was whether remote hearings of any kind (whether by Microsoft Teams, Whats App, zoom, Skype or any other audiovisual or video conference platform) by the Lagos State High Court (or any other courts in Nigeria) in aid of hearing and determination of cases, is constitutional. The plaintiffs subsequently withdrew the case, however, while striking out the case, the Supreme Court stated that “as of today virtual sitting is not unconstitutional.”

For Adekilekun, as courts adopt new technologies for court proceedings, there is need to consider anywhere would pose obvious challenges in the country. He pointed out inconsistency of the guideline with provisions of the Constitution, Conventions and statutes; access to power supply; Internet access; cyber security and dearth of ICT experts; resistance to technology by the Labour Unions and other factors will militate against virtual proceedings in Nigeria.

Another lawyer, John Ochogwu, said there is need to make significant changes’ to court room advocacy and practices to stem the tide of the pandemic through social distancing, which in turn has seen the rise in demand for and the practice of online hearing of matters.

He said in Nigeria, a number of Federal Executive Council meetings involving the President were held virtually, with members opting to either be there in person or attend online depending on the business of such meetings.

According to Ochogwu virtual court hearings have far more implications for the courtroom practices beyond criminal matters. “It is quite encouraging to hear that the government is championing the cause for application of technology in this area in a manner that is both globally accepted and relevant to the fight against the spread of the COVID-19 within the country since the courts are one of the fora in which citizens legally gather to conduct their businesses, albeit as litigants, court officials or observers.”

He said with the emergence of online platforms like Zoom, Google Meet, Skype etc. and high-speed internet, people and organisations have been able to gather and meet from any part of the world, using devices connected to the web.

Ochogwu said deploying technology saves time and cost of transportation to courts, particularly when the parties or lawyers are residing out of jurisdiction. “More so, for preliminary stages of matters when parties are not required to give evidence, they can also participate in such proceedings via the links provided for that purpose.

“The drawbacks of virtual proceedings can be seen in the legal and procedural frameworks at play in the Nigerian judicial system, especially as it pertains to criminal trials.

“Section 36 (3) of the 1999 Constitution provides that any person standing a criminal trial must be tried publicly except in circumstances where it would be injurious to the public to do so. It is on record that many of the courts in Nigeria have no provisions in their laws or procedural rules that makes provisions for hearings of any kind to be conducted virtually. So, the current implementation of virtual trials and hearings is even devoid of statutory legal backing,” he stated.

The lawyer said, however, in view of the ruling of the Supreme Court in Attorney-General of Lagos State V Attorney-General of The Federation sometime in July 2020 in which the former challenged the validity of virtual hearings in view of the above-cited provisions of the Constitution, it was established that virtual hearings are not unconstitutional.

“It is not unconstitutional for the reasons that no one has come forward to establish any wrong suffered as a result of such proceedings and the fact that at the time the National Assembly was working on legislation with respect to virtual courts, the action can only be proper if such legislation contains provisions that are likely to contravene constitutional provisions. It has become abundantly clear that the constitutional requirements of publicity of criminal trials appears to have been suspended by the apex court, since it ruled that the action was premature and speculative, prompting the appellant to withdraw same and the court dismissing the action,” he said.

He added that another consideration in respect to virtual trials is the uniform availability of technology, related infrastructure and access to it by parties. This, he said, can pose a challenge as matters can be stalled due to the inability of parties, their lawyers or even the judge from being able to access or use virtual court technology due to issues related to poor signal, defective devices and other communication issues.

His words: “A larger concern is also the usage, storage and safety of the data that is generated from such proceedings, particularly in consideration of GDPR standards for data management in the world today.

Questions such as who will be in custody of the recordings, the courts or the Internet Service Providers? Will there be trainings to familiarise all parties with the technology involved? Are virtual proceedings secure from hackers, who may attack high profile cases with a view to exposing same to the public or prevent access to such information unless a certain ransom is paid etc? In addition, the cost implication of installing such technology in courts, correctional facilities and other institutions would be quite huge, which may lead to disparity in its application nationwide.”

While Aondo Jerry an Abuja based lawyer said if virtual trials are properly implemented, it would address a wide range of issues like promotion of speedy administration of justice; saves costs for the parties as they do not have to transport to court but simply sit at the comfort of their home and get hooked up; saves time and energy for the court and for the parties as trials are conducted from the comfort of their home without the need to spend lengthy hours under an un-conducive atmosphere and traffic.

The lawyer fears that network failure may hamper the practice. For this practice to work effectively, their need to be a stable network connection at all times throughout the court session. Consequently, where the network is poor at one end, it impairs the hearing, he said, adding that hearing cannot be made possible without the requirement of Internet subscription.

“The high rate of charges and the volume of data it consumes, is a major problem hindering the smooth flow of virtual hearing,” he said.

Another factor Aondo pointed out includes technical know-how: high rate of illiteracy and lack of basic ICT skills that could pose as serious challenge. According to him, an ordinary man in the society, who is defined to be the common man in the market, may not be able to connect to the system of virtual hearing, where there is need for him to appear as a witness.

But if courts are going to rely on this for justice administration in the long run, there is need to strengthen them, Aondo noted, equip their libraries with enough data-enabled devices for legal practitioners who cannot afford same, use them.