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Lawyers differ on practicability of virtual court

By Joseph Onyekwere, Lagos and Bridget Chiedu Onochie, Abuja
17 May 2020   |   4:14 am
Upbeat about the digital future of Nigerian court sittings, some senior lawyers have backed the National Assembly’s effort to amend the Constitution to accommodate...

• Infrastructural Deficit The Only Obstacle— Umeh
• It’s Global Trend; Nigeria Should Not Be An Exception— Sani

Upbeat about the digital future of Nigerian court sittings, some senior lawyers have backed the National Assembly’s effort to amend the Constitution to accommodate virtual court proceedings, but expressed concerns about its implementation. 
Section 36 (3) of the 1999 Constitution provides for fair hearing and public court proceedings, which might be lacking in remote sittings. It says: “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.” 

To forestall any challenge against decisions arising from virtual sittings, the National Assembly, last week, initiated the process to amend the affected sections of the Constitution. 
While the lawyers agreed that the amendment is desirable, they also noted that there are infrastructural challenges that would affect its implementation in courts that sit in rural or remote areas. 
However, some lawyers wondered why procedural matter, such as the mode of conducting a court sitting, which is subject to frequent changes, should warrant amendment of the Constitution. 
Dr. Abiodun Layonu (SAN) said: “I am always wary of constitutional amendments, especially to accommodate procedural matters that may from time to time change, as the world of technology moves in its dynamic nature. The first point of consideration is: do we need a constitutional amendment to achieve this?”
Although he agreed that in criminal matters, the physical presence of the defendant is imperative, Layonu said it only happens in exceptional circumstances defined by statute and exemplified by case law. 

Former Attorney-General of Abia State, Chief Awa Kalu (SAN), said he would oppose virtual court sittings because it will not meet the constitutional threshold of a court hearing in “public,” unless the amendment is undertaken. 

Stating why he supported the amendment, Dr. Paul Chibuike Ananaba (SAN) said virtual hearing without constitutional amendment may be challenged in court and the proceedings strike down. 
Also agreeing with the move, Ms. Anthonia Titilola Akinlawon (SAN) noted that amending the Constitution to allow for virtual court sittings is a step in the right direction to forestall future appeals that the court proceedings were not in public.

Attributing the urgent need for remote court hearing to the fight against COVID-19 pandemic that promotes social distancing, Law lecturer, Babcock University, Dr. Abangwu Nzeribe, said the issue was never a subject of legal debate few months ago. He stressed that the pandemic has further established the fact that the only permanent thing in life is change.
Kano based lawyer, Abubakar Sani, expressed support for the amendment, saying: “I support it, because it is the trend world-wide. Technology must be embraced in every facet of our national life, as it enhances and enriches the human condition and experience. Nigeria cannot be an exception.”
Calling for caution, Mr. Dayo Akinlaja (SAN) said as much as it is desirable for us to leverage technology in judicial proceedings, it may be necessary for us to make haste slowly in that regard.

“I would rather that we have got it fully mastered and honed to perfection before we go the whole hog of entrenching it into the Constitution,” he suggested. 

Also, former Attorney General of Ekiti State, Owoseni Ajayi, described as impracticable, the move to introduce virtual court sitting in Nigeria.
Ajayi, who spoke to The Guardian, yesterday, said there are lots of insurmountable obstacles on the way of the virtual sitting that will make it impracticable, particularly criminal cases.
He wondered how a criminal suspect could be arraigned online, documents tendered and witnesses and cross-examined on-line.
He said: “Let us take criminal case for instance where you have to arraign suspects. How do you get them arraigned on-line? You tender documents, how do you get them tendered or cross-examined? What about the addresses of counsel and rigmaroles of the cross-examination of witnesses, he asked.

Noting that criminal procedure is a lighthouse test for legal practitioners, he wondered how justice would have been done or seen to have been practically done during virtual sitting.
Also speaking, Abuja-based Senior Advocate of Nigeria, Oketepa, envisaged hiccups in the process, given the level of technological and infrastructural development.
He also thought of the possibility of tendering documents and signing court processes online.
In his view, such process could be hijacked or manipulated by cyber criminals.
However, ex-Attorney General and Commissioner for Justice, Imo State, Chukwuma Machukwu Umeh (SAN), said virtual court sitting is possible with necessary infrastructure to support it.
Noting that such step will help in advancing justice administration in the country, Umeh insisted that it is not the physical nature of the accused person that matters.
He said: “If he is in prison and he is asked to be arraigned, the most important thing is for the court to hear what he is going to say, whether he is guilty or not guilty. He can be wherever he is. The most important thing is the infrastructure available. If he is in the police station, Skype ought to be there. If he is in the prison, Skype ought to be there too. If he is on bail, then, he has to stay somewhere and speak.”