How infrastructure deficit, regulation may impede effective remote court proceedings
Without a doubt, the advent of the novel Coronavirus disease (COVID-19) has altered the way many things were hitherto done across the world. Ranging from education, sports, entertainment, medicine to a business transaction, wide-ranging adjustments have been made, and many activities are going on virtually as the world slowly emerges from a massive lockdown.
The judiciary as an integral arm of government has had to join the bandwagon as it pushes for the adoption of the virtual court sitting, even though a groundswell of judges and lawyers are not convinced that the practice would be legit under the 1999 Constitution, as amended.
The judiciary, which, like most other concerns also suspended operations at the initial period of the lockdown except for urgent matters, in deciding to adopt virtual court hearing, said it was to ensure prompt resolution of cases during the period and to also ensure that the justice sector is not paralysed.
Consequently, to ensure smooth administration of justice, the Chief Justice of Nigeria (CJN) and Chairman of the National Judicial Council (NJC), Justice Tanko Muhammad, on March 20, 2020, issued a circular with ref No: NJC/CIR/HOC/II/629, and it was the first official response of the judiciary to the COVID-19 pandemic.
In the circular addressed to all relevant stakeholders and constituents, the CJN directed public officers to abide by the precautions outlined by the National Centre for Disease Control (NCDC) and federal health authorities, and also ensure that their management and staff do the same.
Subsequently, through another circular with ref No: NJC/CIR/HOC/II/631 dated March 23, 2020, and addressed to all heads of courts, as well as federal and states’ judiciaries, the CJN suspended all court sittings for an initial period of two weeks, effective March 24, 2020, except in matters that are urgent, essential or time-bound according to extant laws. Invariably, with the lack of clarity in interpretation of this directive and urgent health concerns, those judges who sat, mostly focused only on fundamental rights cases or criminal cases involving the liberty of persons. Admiralty matters involving the arrest of vessels were also considered urgent in federal high courts.
Barely seven days after the CJN’s circular, President Muhammadu Buhari, on March 30, 2020, ordered a lockdown and movement restrictions, save for essential services in Lagos State, the Federal Capital Territory (FCT) and Ogun State. Unfortunately, legal services and administration of justice were not classified as essential services, unlike medical services, law enforcement, and provision of foods and necessities.
At the expiration of the initial two-week suspension, the CJN issued another circular dated April 8, 2020, with ref No: NJC/CIR/HOC/II/656, again addressed to all heads of courts, federal and states’ judiciaries, and extended the suspension of court sittings till further notice, while excepting matters that are urgent, essential or time-bound according to extant laws.
The directives in the CJN’s circulars corroborated the Federal Government’s lockdown measures, and that of some state governments to combat the further spread of the COVID-19 pandemic.
To comply with the directive to attend to time-bound matters, the courts adopted the practice directions and case management system used for vacation matters, where there are few judges during the summer period to attend to matters that are urgent in nature.
However, there was even no formal and clear definition given of what constitutes an urgent matter, whereas the executive’s quarantine and social distancing measures identified the list of businesses, which were considered essential in a public health pandemic.
Emuobonuvie A. Majemite and Okorie Kalu, both lawyers in the law firm of Punuka Attorneys in a recent article said this vagueness might lead to unfortunate conjecture and argument. “One can say with certainty that matters about life and personal freedom fall under the definition of urgent matters. This is indicated in the letter of March 23, 2020, from the Chief Registrar of the Federal High Court, which listed bail applications and arraignments within criminal matters as one of the matters that will be entertained. It is also likely that civil matters relating to the immediate destruction of personal property will fall within the category of urgent matters for which interim or interlocutory applications are involved.
“Again, it is possible that tenancy matters, which can potentially affect the life, property, and limb of the tenant who is running at risk to be ejected by his landlord during a health pandemic and requires court protection fall under the ambit of urgent matters. Likewise, it may be that commercial cases in which interim orders such as attachment orders or freezing orders have been obtained against individuals or corporations pose an existential threat to the person or business concerned, and therefore an urgent hearing may be required particularly since lockdown may affect the hearing of the substantive case, which may cause irreparable damages to the economic integrity of such person or persons,” they argued.
According to the lawyers, beyond the potential challenge of the precise matters that would be exempted from the CJN’s directive, it is impracticable for counsel and parties to travel to attend court for matters that have been listed as having been exempted. This, they said, is because, under the Federal Government and state governments’ lockdown measures, it would be unlawful for counsel and parties to travel to attend to their matters. Truly, the attractive escape route, therefore, became remote hearings, whilst the Supreme Court had commenced e-filings, and remote court hearings with relevant Information Technology (IT) infrastructure yet to be fully established, including at the trial and Court of Appeal levels as well.
However, the Chief Judge of Lagos State, Justice Kazeem Alogba seems to be blazing the trail in this regard with the release of the draft practice directions for electronic filing, service of court processes, and remote hearings.
But before him, Justice Fadawu Umaru of Borno State Judiciary had a virtual court sitting on April 28, which was monitored by the Chief Judge of the state, Justice Kashim Zannah.
By these developments, it is clear that technology has come to stay, and that its use has become a sine qua non for the effective administration of justice.
Although generally accepted as good and novel initiatives, there are also questions about the smooth implementation of the process in a country without functional infrastructure, cybersecurity, proper legal framework, and many more.
Some lawyers have raised issues concerning the (cyber) security of the video conferencing and recording facilities to be adopted, the capacity of judges and the counsels to key into the technology, as well as softer issues such as ensuring that witnesses giving testimony are not in the same environment with their counsels.
On the other hand, the concerns for some of them is that “these facilities and the technology also need to be very affordable, accessible and available to the legal profession as a whole, with very broad, well-known and well-secured applications or technology resources available to all, etc.”
However, to forestall any challenge against decisions arising from virtual sittings, the National Assembly kick-started efforts to amend the constitution to accommodate virtual court proceedings. Section 36 (3) of the 1999 constitution provides for a 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.”
The bill to amend the constitution to make virtual court proceedings constitutional titled, “1999 Constitution of the Federal Republic of Nigeria (Alteration) Bill, 2020 (SB. 418),” was sponsored by Senator Michael Opeyemi Bamidele.
According to Mr. Folabi Kuti, partner at Perchstone & Graeys, the narrative is now obviously beyond the practicability of taking advantage of the benefits, and wonders of technology to facilitate human interactions whilst maintaining social distancing.
The focus now, he said, is that it is the only way out to keep the justice delivery system, now in near-comatose, alive. “The courts cannot be shut for over 10 weeks and we are here biting at the practicability of virtual hearing. We can’t self-indulge at a Hobbesian state of affairs. Virtual hearing, yes, with all the challenges of infrastructure is the only way out. In the wake of the ravaging global public health crisis, and the far-reaching reverberating effect on everything- human, socio-economic activities- particularly as it regards the measures (of partial lockdown and social distancing) implemented to flatten the curve of community spread of the novel coronavirus pandemic, in-person physical appearance has been suspended in the court system. Just the same way it has been done in other climes.
“But the justice delivery system has not been shut down in those other climes. It has simply migrated to digital platforms facilitating a justice delivery system. Here we are ill-affording luxuries as ‘oh, it is unconstitutional,’ service delivery system of the telcos is poor, and all sorts. How is it unconstitutional? What can be more public than access to a digital court system that can accommodate up to 1, 000 people (Zoom platform), as opposed to even the limited spaces in the physical structure of a court? Yes, there are infrastructural challenges, but at times, we will never do anything if we bite so much at the expense of starting the process,” Kuti said.
He added that the question should now be, “when are we starting to implement fully, the various protocols and practice directions issued by the various heads of court on virtual hearing?”
On his part, a human rights lawyer, Yinka Oyeniji submitted that adopting virtual court sittings presupposes that lawyers have to be connected to technological tools, including mobile devices (according to specifications outlined by relevant judges), which will make it happen, power supply, Internet connectivity, and essentially note-taking of proceedings.
He stressed that it would be incredible to assume that the average legal practitioner may have access to all these because there are lawyers who lack the competency and capability to ply their trade technologically.
His words: “That they get their briefs done for them outside their law offices does not disqualify them as lawyers. It only points to a poorly regulated environment, which places a little premium on making the Nigerian lawyer be at par with others in other jurisdictions that deploy technology rather than playing catch-up.
“Even our courts have been plagued by lack of power supply, which limits days of sittings. Meanwhile, we respectfully assume that lawyers have access to devices, which costs a premium even though it has now become a prerequisite to becoming a student at the Nigerian Law School. Still, the older lawyers may not be accustomed to the use of technology. Data procurement for Internet connection cannot also be assumed as a staple. Tales abound of little satisfaction of customers from services rendered by telecommunications companies in Nigeria. Again, the regulatory agencies have done little to address value received from data and pricing in Nigeria. How much data would a lawyer need? Whilst not particularly addressing the compliance to proper dressing for virtual court sessions by lawyers, it is by no means another thorny issue to be addressed on whether everyone will turn out in regulatory dressing, or this may be passed on.”
Still highlighting the challenges, he said: “How about calling witnesses? Would we expect evidence to be tendered by witnesses, who may either require being in the same location as lawyers or also get connected online together with the judge and the lawyers? The same logistics and maybe more as required by lawyers will also be expected of witnesses. Some witnesses may either be too old, or illiterate in western education, so, how would they be eased into this system? This also extends to the use of interpreters in such peculiar scenarios, as they also require having access to these sets of logistics, and then tendering of evidence (which may now need to follow the provisions of the Evidence Act).
“Virtual proceedings will never be able to accommodate tendering evidence. This is because the requirement to tender documents, custody will be impossible to meet. How does the court registrar collect primary evidence sought to be tendered? How does the counsel on the other side observe, and arrive at the decision whether to object or not? How would the court collect such evidence and label it as an exhibit? Let us remember that all our courts at different levels are struggling with electronically archiving court documentation, as well as automating the entire process. While a little progress has been made in e-filing, even slower progress has been recorded in scanning and archiving ongoing evidence at trial.”
Oyeniji observed that simple addresses to court for adjournments without weighty trials, or arguments of motions, which require externalities would not be convenient.
He added that since we require equality in the dispensation of justice, there are too many inequalities for virtual proceedings to deliver equity, just as he declared that it is nonetheless a wake-up call to get our acts together regarding the identified challenges.
One of those opposed to virtual court sittings because it will not meet the constitutional threshold of a court hearing in “public,” unless a constitutional amendment is undertaken is the former Attorney General of Abia State, Chief Awa Kalu (SAN).
According to him, virtual proceedings require technology and technical input, which have to be in place, but which presently are not, stressing that if we do the needful we could reach the Promised Land.
“Lagos and Abuja lawyers are apparently in a hurry to get virtual sittings started, but forget remote courts and remote lawyers. We need to create a level playing field for all practitioners, as well as all concerned,” he suggested.
An Owerri-based lawyer, Ike Augustine, who shares Kalu’s view said that the practicability of virtual court hearing is largely dependent on the availability of the required facilities, which is lacking in some Nigerian courts.
For there to be a seamless virtual court proceeding that would meet the standard of justice, Augustine said, these facilities need to be put in place.
“I have had cause to interact with the Chief Registrar of a State High Court on the possibility of virtual/remote court hearing, and she categorically told me that the court is not prepared to undertake such venture due to unavailability of the required facilities, and poor funding, which would make the acquisition of required facilities arduous. So, adopting virtual court hearing is dependent on the court involved, as the same standard cannot apply to all courts. The buildings housing some of our courts are in a dilapidated condition, with poor recording and filing systems. Let’s fix these basic things first before talking of virtual court hearings,” he stressed.
But for Dr. Paul Chibuike Ananaba (SAN), it is imperative for the constitution to be amended before the step is taken as verdicts from virtual hearings without constitutional amendment may be challenged in courts, and the proceedings struck down.
His words: “The 1999 Constitution provides for hearing in public. There has not been a clear interpretation of this by the courts. It is desirable to have virtual hearings, but it must comply with the requirements of the constitution. The amendment envisaged is not just on Section 36 of the constitution, but a holistic amendment to cover several bottlenecks on the way of virtual and expeditious hearing. That will also equip the bench and the bar to hear and conduct proceedings with less physical contact, and within the shortest possible time. Having said that, I am not comfortable with the frequency of the amendments we have done on our constitution. So, we should address significant issues like electronic voting in our electoral process, as well as electronic transactions in all applicable areas of life.”
Ms. Anthonia Titilola Akinlawon (SAN) also agrees that amending the constitution to allow for virtual court sittings is a step in the right direction, as this would forestall future appeals that the court proceedings were not in public.
According to her, the present position of the Supreme Court decisions is that an entire proceeding must be in the public, otherwise, it would be a nullity.
“In the case of Alimi Vs Kosebinu 2016, where the trial was conducted in the courtroom, but judgment delivered in the judge’s chambers, the court set aside the judgment and entire proceedings as a nullity because it infringed the provision of section 36(3) of the constitution since the judges chambers cannot be considered to be a public place. Although it has been argued that if the link to the virtual hearing is published on the court’s website and members of the public are admitted to the hearing, then it may amount to sitting in public, I do not think that this argument would hold water when you consider that litigants and their supporters that are interested in the case may be illiterates that have no access to the Internet. In this circumstance, it is better to amend the organic law to accommodate the situation,” she reasoned.
While wondering why matters of procedure must be in the constitution, which would necessitate frequent amendments, she added that how proceedings are conducted in court should be a matter for the CJN, or states’ chief judges as may be stipulated in the Rules of Court, and or practice directions.
“I expect that maybe soon the constitution would have to be amended to admit the provision of section 396(7) of the Administration of Criminal Justice Act to forestall the situation that arose in the case of Orji Kalu,” she said.
For a law lecturer at Babcock University, Dr. Abangwu Nzeribe great as these practice directions appear to be, the knotty issue that needs to be addressed is their constitutionality vis-a-vis the provision of the Nigerian Constitution as contained in Section 36, Subsections 3 and 4.
According to him, it may be deduced that the constitutional requirement for public hearing and determination of a case is sine qua non for the validity of such exercise.
“The point that needs to be cleared here is whether virtual court sittings, or video conferencing satisfies the requirement of public hearing or determination of cases within the contemplation of the constitution. It is to fully and categorically clear this doubt that the National Assembly decided to take the bull by the horn by introducing a bill for the amendment of the above stated constitutional provisions, including Section 36(12) to accommodate remote hearing of cases.”
Abangwu, therefore, declared that the step being taken by the National Assembly in that regard is a welcomed development. “At least, it would prevent a situation where the courts, out of the euphoria of use of technology, embark on a voyage of discovery that would not legally stand the test of time, or which may translate to an effort in futility,” he said.