Remote, Virtual Court Sitting in Nigeria is NOT Unconstitutional
Timi Olagunju (@timithelaw)
In the words of Machiavelli in the book, The Prince, ‘there is nothing more difficult to do or more doubtful of success than to initiate a new order of things, for the lukewarm defenders are those who profit by the old order’.
Recently, it was reported that there were concerns as to the unconstitutionality of the current practice in Lagos and Borno embracing remote, virtual hearing of cases, as these cases could be overturned by the Supreme Court of Nigeria. In a proactive response, the Senate introduced a Bill proposing an amendment to the Constitution. Senator Opeyemi Bamidele, Chairman of the Senate Committee on Judiciary, Human Rights and Legal Matters, brilliantly introduced the Constitution of the Federal Republic of Nigeria (Alteration) Bill, 2020 (SB. 418), which has sailed the first reading.
This Bill is desirable and should proceed; however, my position is that pending its implementation which has to go through both the entire National Assembly, as well as all 36 Houses of Assembly in each states of Nigeria, there is nothing unconstitutional about the current remote or virtual sitting practiced in Lagos or Borno state, or any state in Nigeria, as long as the practice procedure is amended to accommodate this reality, especially with essential cases. In fact, the cost and timeframe for constitutional amendment does not support extensive deployment of legislative time, national resources, on this issue, especially since there is nothing unconstitutional about it.
And my reasons for these are clear.
Firstly, the Section 36 (3) cited by those stating the unconstitutionality of using teleconferencing and video-conferencing tools, especially for essential cases at this time, must be read alongside Section 36 (1) which seeks to ensure fair hearing for persons within a reasonable time. It must not be interpreted in isolation.
36. (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
36. (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.
Therefore, how can we claim to protect the rights to fair hearing within a reasonable time as provided in Section 36 (1) during the COVID-19 pandemic, without embracing remote hearing?
For public good and fair hearing, Section 36 (3) request ‘court proceedings’ and ‘decisions’ be reached in public. But to those citing remote hearing as unconstitutional, I ask ‘how can the word public be used to replace physical? Aren’t they mutually exclusive words?
It is important to state that there is nowhere in the Nigerian constitution where ‘public’ is defined as ‘physical’. The Oxford dictionary defines the word public as “done, perceived or existing in open view”. If we take this literarily, does using video conferencing for lawyers to present their cases prevent proceedings from holding in open view? No. To argue otherwise is to limit our court to a place only, rather than ‘a place’ and ‘a service’ – the service of justice.
The way videoconferencing tools work is such that it can always be made available for ‘open view’. For example, we hold seminars or workshop on Zoom, Microsoft Team, and participants can watch online or participate if allowed. The big challenge here is the urgent need for training lawyers, judges, and judicial officials in the use of technology, as well the need for infrastructure to support remote sittings.
If judges want to interpret Section 36 (3) literarily to mean sitting in court, then the judges can sit in Court and allow electronic filling of cases and lawyers to argue via video conferencing, etcetera. As to decision, judges can also decide to sit in their court room, broadcast same on a virtual platform, and deliver judgment there, instead of their private office, whilst opening same court room to the public, but at this time of COVID-19, I doubt if anyone would dare gather, as there is restriction on number and fear.
Therefore, the COVID-19 pandemic has redefined the subject of accessibility.
I submit that by ‘public’, access is the key here. At the moment, video-conferencing is more accessible to people (with internet) than physical access, because nobody is allowed by law to gather to a certain number and the fear of COVID-19 is the beginning of prevention. This practically suggests that remote hearing serves Section 36 (3) better than physical court in its practical sense ‘at this time’.
Even the freedom of religion to gather and that of movement are now subject to limits. Would that make this current practice unconstitutional? In fact, it is not an issue as to substance, but procedure, and the amendment of practice direction as we have seen brilliantly done by Lagos High Court, as well as guidelines by NJC suffices.
That serves a wakeup call to the Supreme Court, to come to terms with this global reality and trend of remote, virtual hearing. Or how else, how can a legal practitioner travel to the Supreme Court in the wake of the inter-state lockdown. The reality is that laws are made for man, not otherwise. Last week, in England and Wales, more than 80 per cent of the country’s court and tribunal caseload was handled remotely, without reported mishap. True, these are the not the most complex cases. But they form the bulk of the daily work of justice systems. One tribunal, for special educational needs and disability, even ate into its backlog. Such are the efficiencies of online hearing rooms.
The National Assembly should be allowed to focus on more important matters such as data protection and re-introduction of the digital rights bill, which was pending in the last National Assembly, because data is the new oil. An attempt to legislative on remote, virtual hearing may be an attempt to legislate innovation. We must thread with care because innovation is not static.
Even if the National Assembly still seeks to amend the court procedure, it should focus on legislating for a more permanent technological upgrade to be set out by a more elaborate process, it should focus on legislation that does not merely integrate technology into the court process, but transforms the judicial (cum legal) process. I suspect that is what Barrister Opeyemi Bamidele seeks to achieve on the long run, and it is commendable.
Timi Olagunju is a tech lawyer and policy consultant. He tweets @timithelaw