Author: Osemen Abiola Ibadin
ABSTRACT
To begin with, over the years, Nigerians have been complaining about how slow and clogged the judiciary carries out its judicial functions. Now, with the recent global pandemic Covid- 19 we have been induced into virtual court hearings. One is posed with the question as to whether virtual court hearings can be accommodated within Nigeria’s constitutional landscape, without amending the Constitution of the Federal Republic of Nigeira, 1999 (as amended). This is on the basis that the Constitution is the law of the land; it is the grundnorm of our democratic system.
INTRODUCTION
Prior to the global pandemic, it was an uphill task that received passive engagement from stakeholders within the legal hemisphere to introduce technology into the administration of Justice. Many have advocated that ICT be infused into our legal practice but have fallen on deaf ears. The global pandemic, Covid-19, came in as a leveler and orchestrated the much-needed transformation within our legal space: Virtual Court Proceedings. Virtual Court Proceedings can be described as a means where Judges, Counsel, Registrars, Witnesses and other participants attend court hearings online or via electronically through Zoom, Skype and other Internet devices. The National Judicial Council, putting the interest of the country above all, issued a guideline to allow the continuation of Court sitting during the lockdown albeit remotely.
CONSTITUTIONALITY OF VIRTUAL COURT PROCEEDINGS
“A fair trial is one in which the rules of evidence are honoured, the accused has competent counsel, and the Judge enforces the proper courtroom procedures – a trial in which every assumption can be challenged.”- Harry Browne
Many lawyers have kicked against the intrusion of the virtual court proceedings on the grounds of it being in flagrant contravention with the provisions of the Constitution and extant Rules of Court. A careful perusal of Section 36 of the Constitution1 would emphasize on the need for court decisions shall be held in public. Where the words “shall” is used in a statute, it implies a command, direction or diving permission to do or not to do a particular thing.
Furthermore, Section 259 of the ACJA3; Order 184 and Order 23 of the Federal High Court (Civil Procedure Rules) 2019, would suggest and reinforce the decision of the Court in Simon Edibo v. State5 that the proceeding of a Court must be held in public. It is submitted that the raison d’etre why court proceedings are to be held in public is so as not to erode the twin pillars of natural Justice: Audi Alterem Patem and Nemo Judex in Casua Sua. This is a protection for an accused and parties so as not to have a Kangaroo Court or Arbitrary Court. In fact, a Virtual Court Proceedings allows for ease of reference as proceedings can be recorded and accessed by the Courts on Appeal and the general public if given the access. Contrariwise, having Virtual Court proceedings does not rub an accused of his opportunity to be heard and fairly gives him a chance to rebut the allegations against him. In fact, VCP cannot be categorized as a proceeding done in the Secret as it can be attended and accessed by all interested parties and also recorded.
A recorded session obliterates the need for Judges to write in long hands and allows for ease of reference for both judges and lawyers. It can also be used on appeal as evidence. As a sequel to the issuance of the guidelines by the National Judicial Council, the Attorney General of Lagos and Ekiti, both approached the Supreme Court to determine the constitutionality of the guidelines. In the suit brought pursuant to Order 3 Rule 6, Supreme Court Rules (as amended in 1999), Section 232(1) of the 1999 6
not to do a particular thing.
Constitution and Sections 1(3), 36 (3) and (4) of the 1999 Constitution, the Attorney- General of Ekiti State asked the Supreme Court to determine whether the directive issued by the Attorney-General of the Federation, vide its directive issued on the 20th of April, 2020 to the Head of Courts at Federal and States level, in conjunction with Guidelines, issued on the 7th May, 2020, by the National Judicial Council specifically as it relates to the conduct of Virtual Proceedings in Court is not only a violation of the federalism provisions of the 1999 Constitution but also in violation of the constitutional provisions on fair hearing specifically as it relates to the conduct of criminal trials in public. The seven man panel of the Supreme Court led by Rhodes Vivour, J.S.C, held that: “as of today, Virtual Court Proceedings are not unconstitutional”. In light of the above, it can be seen that virtual court proceedings are public hearings as opposed to private hearing within the ambit of the Constitution.
ACHILLES HEEL OF THE VIRTUAL COURT PROCEEDINGS
The main focus for the Bar should be how we can utilize the Virtual Court Proceedings for the progress of the administration of the Justice in Nigeria. Some of the challenges that might affect the full implementation of the VCP would be- lack of the technological infrastructure in our respective courts and the technical know-how of practitioners: Bar and the bench. It is suggested that the NBA should partner with technology firms to help create this infrastructure for the Courts, train judges and lawyers on how to effectively utilize these VCP platforms. Like Microsoft Teams, it would be innovative to have an Online Court Platform.
CONCLUSION
To conclude, staff of the Judiciary should be given adequate training on information technology for use in Court and moreover, the infrastructural facilities in Court should be improved. As a result, the Global pandemic appears to be much of a push to become better and the Nigerian Bar Association really needs that. The pandemic poses a challenge that presents an opportunity for the various Courts in Nigeria to strengthen the provisions of their Civil Procedure Rules in order to guide lawyers and Judges in the future of virtual court proceedings in resolving legal issues and dispute.