By Omolara Sodeinde
“Change is the law of life. And those who only look to the past or present are certain to miss the future”- John F. Kennedy
INTRODUCTION
On the 28th of February, 2020, the first case of Corona Virus in Sub-Saharan Africa was confirmed in Lagos, Nigeria. The country, faced with a novel pandemic and a subsequent halt of economic activities, shut down of institutions and a disruption of legal proceedings nationwide, sought to fashion out innovative measures and safety guidelines to curb the spread of the virus.
In the Judiciary, concerted efforts were made by the Chief Justice of Nigeria (CJN), Honourable Justice Ibrahim Tanko Mohammad, as Chairman of the National Judicial Council (NJC), when on the 6th of May, 2020, the Council released guidelines on Court sittings and related matters to all heads of courts nationwide.
The National Assembly in a proactive manner also took steps, when the Senate introduced a bill proposing for the amendment of the constitution for the legalization of virtual court proceedings. The bill is titled: ‘1999 Constitution of the Federal Republic of Nigeria (Alteration) Bill, 2020 (SB. 418) and is sponsored by Senator Opeyemi Bamidele.
States like Lagos, Ogun and Borno have resorted to non-traditional methods of virtual court hearing/proceedings in efforts to aid the continuous flow in judicial process while still adhering to social distancing rules and practices by issuance of practice directions and guidelines by Heads of Court.
However, there has been nationwide debates with divergent views and concerns as to the constitutionality or otherwise of the current practice and adoption of virtual court proceedings and that these cases would be overturned by the Supreme Court. There are also opposing views on whether the National Assembly needs to amend any part of the Constitution, as it already has made provision for virtual proceedings, an alteration that would have to go through both Houses of Assembly and each state House of Assembly, the implication of an amendment on already conducted virtual court proceedings most particularly Lagos State, which has prompted the Attorney General of Lagos State and Commissioner of Justice, Mr Moyosore Onigbanjo (SAN) approaching the Supreme Court of Nigeria to make pronouncements on the validity of Virtual court proceedings, and that they do not offend Section 36 of the Constitution and to hold that the alteration of the Constitution is not necessary.
Some Judges however, do not hold this same view, speaking under anonymity, they expressed their reservations about the adoption of means of technology for hearing cases. Their reasoning is that the constitution does not accommodate Virtual Court hearing as it is not public hearing and are quite sure that the Supreme Court would set aside such number of cases that have been conducted via electronical means.
Senior legal practitioners who are also of this same view are relying on the Supreme Court case of NIGERIA ARAB BANK LTD. V. BARRI ENGINEERING NIG. LTD. (1995) 8 NWLR (PT. 413) 257 @ 273. Judgment was delivered in chambers at the High Court in a claim for damages. On appeal, the judgment was declared a nullity and a retrial was ordered. The court further added that the right in section 33 (3) of the 1979 constitution, now section 36 (3) 1999 constitution, “is a public right of every citizen. The courts must be opened to anyone who presents himself or herself for admission or is so obliged to be so presented.”
Another case relied on is OVIASU V. OVIASU (1973) 11 SC187. In that case, a hearing of the matrimonial case took place in the chambers of the trial judge. Neither of the parties nor their counsel requested for this. At the end of the hearing, the trial court dissolved the marriage. On appeal, the Supreme Court allowed the appeal, set aside the judgment and the matter was ordered to start de novo. It was added that a court is a public place where members of the public have unfettered ingress and egress.
This article is an exposition on whether or not, the Constitution allows and provides for Virtual proceedings or otherwise, and my thoughts and opinions thereafter.
WHAT ARE VIRTUAL PROCEEDINGS?
Virtual proceedings are simply proceedings that are conducted using electronical means without the need for participants to be physically present. The main issue is whether proceedings of a Court of Law conducted virtually can be said to have been conducted in public and as such in compliance with Section 36(3) and (4) of the 1999 Constitution.
According to the Meriam-Webster dictionary, Public is defined as
“of relating to, or affecting all the people or the whole area of a nation or state or place accessible or visible to the public.”
The Black’s Law Dictionary 9th ed @ PG 1348 defined the word “public” as
“open or available for all to use, share and enjoy”.
A combined definition of the above when read alongside the definition of ‘public’ in EDIBO V. STATE (2006) 13 NWLR, His Lordship Nikki Tobi (JSC) gave as follows;
“By Section 33(3) of the 1979 constitution, the proceedings of a Court or tribunal shall be held in public. Public means for the use of everyone without discrimination, anything, gathering or audience which is not private is public”.
“The rationale behind this is the Open Court Principle that carries a presumption that the public, inclusive of the media, has a free and fair access to court hearings and proceedings; the foundation of this, being in freedom of expression and freedom of the press that is guaranteed by Section 39 of the 1999 Constitution. The principle is to protect a wide scope of activities that enable the public to attend court hearings as a partaker, spectator or a reporter and also importantly to discourage trials conducted in secrecy especially one that has to do with a civil right and obligation matters.
The debate on whether virtual court hearings are permitted by the Constitution emanates from Section 36(3) and 36(4) of the Constitution which provide thus:
(3) 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.
(4) 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:”
The questions that would subsequently need determination are;
1.) What would amount to a public hearing?
2.) Does a Virtual Court hearing qualify as public hearing?
What Would Amount to a Public Hearing?
A look at the nature of the constitution as an organic document, the approach most befitting would be to be given a broad and liberal interpretation. The courts have held and recognized that since the constitution is an organic document, any narrow interpretation of its provisions would be violent and cause injustice, and fail to achieve its goal. This was held in the Supreme Court in the case of NAFIU RABIU V THE STATE [1982]2 NCLR 293, when the Court noted that the Constitution was enacted for the current generation and generations unborn. Therefore, it must be interpreted as broadly as justice requires or within the realities of its time, unless the narrower interpretation will best serve the purposes of the law.
As would be rightly observed from Section 36(3), the term ‘public’ has not been restricted to a court room, neither does the constitution prescribe that proceedings of a court shall be held in a court room. Rather, it states ‘in public’. It is beyond contravention that the above cited provisions of the Constitution mandates that all proceedings conducted by the Court of law must be held in “Public”.
In MARWA V NYAKO (2012) 6 NWLR (PT 1296) Pages 278-279, the Courts held that, “the task of expounding a constitution is crucially different from that of construing a Statute. A statute defines present rights and obligations. A constitution by contrast is drafted with an eye for the future. Its function is to provide a continuing framework for the legitimate exercise of government power. It must therefore, be capable of growth and development overtime to meet new social, political and historical realities often left unimagined by the farmers.”
The judiciary is the guardian of the Constitution and must in interpreting its provisions, bear these considerations in mind. I submit that I also adopt a broad interpretation of the word ‘Public’ as used in Section 36(3) and (4) of the Constitution to also include virtual or remote court proceedings and is in line and compliance with the various practice directives and National Judicial Council guidelines. Public simply means accessibility as from the definitions quoted above. The goal and intention behind the promotion of Virtual proceedings is to ensure that justice delivery is possible while still facing the challenges that the Covid-19 era brings.
Does a Virtual Court hearing qualify as public hearing?
The Covid-19 era has redefined the subject and definition of accessibility. Virtual interactive platforms like Zoom or Google Meets with capacity and accommodation of up to a thousand participant affords the public access to Court Proceedings as the basic requirement would be to have a smart mobile phone and data and access will be granted. Public access here, is the key to the constitutionality of virtual court proceedings as the basic requirement would be to have a smart mobile phone and data. Most importantly, virtual proceedings are able to accommodate at least 60 persons, more than what most Nigerian court rooms in Nigeria can afford. Some reservations have been raised on the issue of passwords being of a restrictive nature on access to Court proceedings online on a platform like Zoom, the Lagos State judiciary has implemented in place whereby Observers need not have a password before they are able to livestream court proceedings on a streaming platform like YouTube, while Counsel and witness interested in the matter are availed a password where they are allowed in as participants.
It becomes clear from these decisions that the test for determining whether a hearing is a public hearing is not whether the hearing was held in an open physical court room or location but whether the public can access the hearing and are not excluded from it. Virtual or remote sittings pertains to how the court conducts its business and proceeds to carry out its judiciary function and therefore a matter of procedure. Sections 236, 248, 259, 264, 269 , 274, 279 and 284 of the Constitution are provisions that empowers various heads of courts to make rules on practice and procedure in their respective courts.
The underlying principle these sections preserve by the Constitution recognizes that each arm acts and operates independently and does not encroach into each other’s function. The Supreme Court itself in A.G FEDERRATION V. A.G ABIA (2003) 631 SC held that, “The principle behind the concept of separation of powers is that none of the three arms of government under the Constitution, should encroach into the powers of the other. Each arm – the Executive, Legislative and Judiciary – is separate, equal and are of coordinate department and no arm can constitutionally take over the functions clearly assigned to the other.”
Countries like the United Kingdom, India and Kenya who have adopted remote handle of cases have conducted a large percentage of cases without any reported mishap. Kenya especially opted for Virtual Court proceedings relying on Section 50 of its constitution that guarantees for fair hearing and public trial of individuals.
While virtual hearing appears new to the Nigerian Judicial system, it has been succinctly accommodated by the provisions of Section 36(3)(4) of the Constitution, we must allow for public interest to prevail, especially during the Covid-19 era.
In Summary, I am of the opinion and submit that, “Public” used in Section 36(3) of the Constitution extends to virtual court proceedings when interpreted broadly and in thus, Section 36(3) of the Constitution allows virtual court proceedings. Heads of courts who have issued Practice directions are in consonance with the National Judicial Council guidelines and also consistent with the provision of Section 36 of the Constitution.
CONCLUSION
We must change with the changing times. We must evolve with evolution. The reality is that laws are made for man and not otherwise. Nigerian Courts are already overwhelmed with a heap mountain backlog of unheard matters and as well as a pandemic threatening to debilitate the economy of the country.
Technology has come to stay and aid and we must embrace innovations as they come and it is important that the challenges associated are tackled. Court proceedings held virtually are not illegal even though the challenges are novel and enormous especially with the training of lawyers and legal officers on usage, and cannot be illegal if conducted properly and open for all and sundry to watch.
The advantages of the use of technology as an aid and means to conduct Virtual Court proceedings are enormous, ranging from court matters being timeously heard, dealt with swiftly, court congestion issues will be a thing of the past in no time, and most importantly, the advantage that it is a cheaper option. The focus and debate should not be centred only on whether the Constitution allows for remote handling of cases, but also of innovative ways technology and the law can work hand in hand.
